For immediate release on 2 June 2022
Labour Court Region 1 ordering employer to provide a Laotian girl, his homeworker, 11,000 baht, for damages from the employer’s physical abuse until she suffered grievous bodily injuries, forced labour and payment lower than minimum wage for 2 years and 8 months
On 28 April 2022, the Labour Court Region 1 of Phra Nakhon Si Ayutthaya, read the verdict in the Black Case no. R120,77/2563, Red Case no. R657,658/2022, to order the defendant (employer) to offer the plaintiff (injured Laotian girl) the amount of 11,000 baht plus 15% interest rate per annum from 1 March 2018 until the sum is paid off. Previously, the labour inspector awarded the injured party the amount of 99,133.32 baht.
The Labour Court Region 1’s verdict can be analyzed on five points;
- The duration of plaintiff’s employment as to when it began and ceased On this point, there was a clash of evidence from the parties. While the plaintiff claimed to have worked for the defendant 2 years and 8 months, the defendant stated that the plaintiff had only with for him about 1 year and 3 months. After hearing the evidence, the court was satisfied with the defendant’s claim without heeding to the plaintiff’s word.
- The pay warranted by the plaintiff, should the plaintiff be paid the minimum wage or not? The court found that the plaintiff was employed for homework without any business operation. Therefore, she was not entitled to the protection of minimum wage according to the Labor Protection Act 1998 since the Ministerial Regulation of the Ministry of Labour and Social Welfare no. 14 (2012) sets out waivers of minimum wage protection for those employed for homework without any business operation. The court thus rules that the plaintiff is only entitled to the payment agreed by the defendant at 3,000 – 5,000 baht/month.
- How much should the plaintiff be paid? In view of evidence regarding the transfer of payment, it appears the defendant did not make the transfer every month. Each transfer was also made at different amounts. According to the defendant, the payment transferred to the plaintiff’s father was after the deduction of personal expense of the injured party. The court is satisfied with the defendant’s evidence.
- Regarding statute of limitation The plaintiff asked the defendant to pay her wage for her work from November 2016 to February 2019, but according to the court, the right to demand the payment from November 2016 to October 2017 was over two years beyond the statute of limitation according to the Civil and Commercial Code. Therefore, the court rules that the plaintiff only retains the right to demand her payment only from November 2017 to February 2018, only four months. The court fails to recognize the fact that the plaintiff had become a victim of human trafficking and were unable to have access to the judicial procedure prior to that.
- Should the plaintiff be entitled to demand weekly holiday pay, traditional holiday pay, and annual leave pay, or not, and for how much? The court is satisfied with the defendant’s evidence that he had arranged for the plaintiff to have a weekly day off on Sundays and to have her traditional holidays and annual leave, even though the defendant has failed to offer any clear supporting evidence to demonstrate that the plaintiff had actually stopped working during holidays as claimed by the defendant.
This case has started in 2014 when Girl A, from Champasak Province, Lao PDR, was only 10 years old. She and her older brother were lured by a broker to work as homeworkers in a family of rich persons in Samut Prakan. Throughout several years of her work, Girl A was subject to abuse and brutal and inhumane treatment by her employer through various methods including being beaten up, stabbed with scissors, slashed on skin and all over the body causing her to sustain wounds throughout her body. She was also forced to eat animal’s feed and live with pet cats and dogs raised by the employer. It has inflicted on Girl A grievous harm mentally and physically. She was also denied her pay and holiday pay as agreed and the payment according to the legal minimum wage. She was later rescued and assessed as a survivor of trafficking in person in 2019.
Ms. Penpitcha Jankomol, legal and policy officer of the Anti Human Trafficking in Labour Project, Human Rights and Development Foundation (HRDF), who has offered legal assistance to the girl in this case and HRDF have three concerns about the verdict;
Issue 1 The ruling that a homeworker is not entitled to a legal minimum wage since the Labor Protection Act 1998 provides that homeworkers are subject to the protection under the Ministerial Regulation of the Ministry of Labour and Social Welfare no. 14 (2012). The Regulation imposes several exemptions including the right to minimum wage, an exact number of working hours, the right to severance pay, etc. This is a legal loophole which denies a homeworker the opportunity to access their proper rights. Homeworkers are thus vulnerable to violations, exploitation and an employment insecurity.
Regardless of the law under which the protection of homeworker falls, the court should have meticulously ponder all concerned facts and the working condition, particularly facts which demonstrate the responsibilities of the girl, the duration of her work, the duration of her rest, the workload she had to endured, and whether they were commensurate to the payment at 3,000 – 5,000 baht provided by the employer or not. Has the work the girl engaged with was occupationally safe and healthy to a child or not? For example, the verdict that states that “Feeding cats or doing small homework is not laborious work and it is neither required to do every day nor for the whole day without rest.” This view may not square with the reality since the employer raised many pets, a dozen of cats and dogs already. They need to get fed every day, at least twice a day. The girl was also required to clean up their habitats, and to walk them to defecate and to run outside. She also needed to clean the house, do laundry, and tend to the employer’s garden. The girl gave evidence about such hard work and the strenuous duration of work as well as the occupational risks on her health. The view on the payment rate as claimed by the employer does not seem to reflect the actual working condition and the pay she warranted.
Issue 2 on the review of evidence by both parties From the verdict, it appears the court is satisfied only with the evidence given by the employer without giving weight to the girl’s evidence at all. This includes the matters concerning the duration of work, the amount of pay, weekly holidays, and traditional holidays, even though the injured party should be considered to belong to a vulnerable group since she was only a 14-year-old girl who became a victim of brutal treatment and human trafficking. There was not motive for her to give false evidence. Moreover, this case is involved with a criminal suit in which the employer is held liable as a perpetrator of human trafficking. By relying heavily on evidence only from the employer without giving proper attention to well-rounded facts, is a concerning sign.
Issue 3 on the statute of limitation according to the Civil and Commercial Code The court rules that the right to retrospectively demand wage was invalid since it happened beyond two years. In this case, HRDF opines that even though the law sets out the time limits for retrospective demand of wage, the court could have considered other facts including how the girl belongs to a vulnerable group and was a migrant worker, who at the time was unable to have access to the judicial process by herself without the duration of time prescribed by law. And this could pose a problem preventing her from exercising her right to demand her benefit within the required period. Therefore, by depriving her of the right to demand retrospectively her wage after its statute of limitations without considering the injured party’s vulnerability and other factors could only prevent the injured party who is a child from accessing the protection and the best interest of the child she warrants.