By : JOE FERNANDEZ
FILIPINA waitress, Rocelyn Tubal Raneses, 32, in and out of court in Sabah for several months over her modest dues from a popular seafood restaurant here, faces yet another hearing in the High Court on Nov 22. The notice of hearing is expected on Nov 15, according to her lawyer PJ Perira.
The new date follows the High Court ruling in her favour on Oct 29, upholding an Aug 6 Labour Court order, but her former employer refused to pay up despite being given 30 days to do so. The Labour Court had ruled that the restaurant owed her claims totalling RM4,232.70 plus interest to be calculated at 8% per annum from Sept 7, 2010, until the date of payment.
Instead, the restaurant wants her lawyer to state the definition of “wages” in the High Court on the new date set. Perira had contended that the Labour Court should know best how the overtime rate is to be computed and that “there were documents to show the formula the Labour Court used in calculating Raneses’ overtime pay”.
The restaurant is disputing the calculation of overtime pay received by the waitress. The employer wants to know whether it should be based on her basic salary of RM300 per month or basic salary plus service points of RM500 as stated in the contract of employment. The restaurant’s lawyer, Chin Tek Ming, is contending that overtime pay must be based on the basic salary of RM300 rather than the total sum of RM800 (inclusive of the service point of RM500).
The thrust of Raneses’ case, since upheld by the Labour Court, is that the restaurant owes her RM1,320 being wrongful deduction for her work pass; unpaid overtime pay of RM2,757.70; and RM155 for other wrongful deductions (uniforms, walkie-talkie and chop).
Raneses was penalised by her former employer by not being paid the RM1,320 due as well as her salary and overtime for not surrendering her passport.
The employer did not turn up at the Labour Court on Aug 6 after also failing to turn up on July 23.
The Labour Court ruled that the employer had committed an offence under Section 113 (1) of the Sabah Labour Ordinance, Chapter 7, prohibiting unauthorised deductions from wages. The employer was also found to have infringed Section 104 (1) of the Sabah Labour Ordinance, Chapter 67, on payment of overtime.
The Labour Court has also ruled the clauses in the employment contract pertaining to deductions and overtime pay are not valid.
Matters have been compounded by Raneses’ visa expiring on Nov 14. She was advised by the High Court, according to Perira, to return to the Philippines and “the money will be sent to her bank account there”.
“I will try to get her visa extended...,” said Perira. “Under normal circumstances, I would have to attach the notice of hearing but it will only be out a day after her visa expires.”
Perira does not know whether the restaurant has been playing a waiting game, dragging out the settlement to exhaust her visa period and her limited resources. Perira is handling Raneses’ case on a pro bono basis after being approached by the church here on her behalf.
Public warning
Raneses’ case became public after the Labour Department investigated the errant restaurant in mid-May this year and found that it had run foul of several laws. The department advised the restaurant to make amends. The restaurant’s frontline workers, mainly waiters and waitresses, are mainly Filipinos with valid travel documents.
The department also issued a public warning to employers that foreign workers legally in the state have equal protection of the law as local workers.
Apparently, in retaliation, the restaurant terminated Raneses’ employment contract on 24 hours notice. It relented and withdrew the termination letter after the department intervened, but subsequently gave a second termination latter on May 27. The waitress refused to budge until all her dues were paid.
Raneses had complained in the local media that the errant restaurant found all sorts of excuses to deduct salaries of their workers and leaving them with less than half the take-home pay and in her particular case between RM100 and RM300 at the end of the month.
The excuses for salary deductions included coming to work slightly late; damaging crockery, tools or equipment even unintentionally; not smiling enough, sitting down during work, taking more than the 15 minutes break allowed for lunch and dinner and, among others, asking why their salaries were being deducted. There were also other wrongful deductions.
In addition, they had to pay for the walkie-talkie used during work by the restaurant captains and fork out RM15 for a compulsory hair-clip which was being sold at RM2 here.
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