Employer's refusal to disclose attendance records draws adverse inference in foreign worker's $20,000 overtime ruling

An Employment Claims Tribunal has awarded a Bangladeshi food processing worker $20,000 in unpaid overtime, drawing an adverse inference against his employer for refusing to disclose attendance records — and holding that employers who withhold such records cannot expect that silence to shield them from liability.

The judgment, JHU v JHV [2026] SGECT 2, was handed down on 1 July 2026 by Tribunal Magistrate Joel Tan. The parties' identities were redacted from the published grounds.

The claimant, employed as a food processing worker at a Bangladeshi restaurant from around December 2023 to 8 December 2025, alleged he had worked 13 to 15 hours a day, seven days a week.

He limited his claim to the period from 1 April 2025 to 8 December 2025, during which he said he had worked 1,848.8 overtime hours — amounting to $21,815.84 at his contractual overtime rate of S$11.80 per hour. His claim was capped at S$20,000, the jurisdictional limit of the tribunal. The employer denied that any overtime had been worked at all.

Overtime remains payable beyond statutory ceilings

A preliminary issue arose from the scale of the claimant's account. The Employment Act 1968 (EA) caps overtime at 72 hours per month under Section 38(5) and prohibits work beyond 12 hours in any one day under Section 38(8). The claimant alleged he had worked well beyond both limits.

Tribunal Magistrate Tan held, following the High Court's decision in Hossain Rakib v Ideal Design & Build Pte Ltd [2023] 5 SLR 1529, that these provisions do not prevent a worker from claiming overtime pay for hours worked in excess of those ceilings. To hold otherwise would allow an employer to use its own statutory breach as a shield against paying wages it owed.

Adverse inference drawn for failure to produce records

The claimant's primary evidence was an attendance table prepared after his employment ended, said to be based on handwritten notes he had kept since March 2025. He explained that this was when the employer switched from a punch card system to an electronic facial recognition system, after which he could no longer access the employer's records and began keeping his own.

He also produced photographs of punch cards bearing his name for May, July and August 2024, showing working hours consistent with the attendance table. Although these predated the claim period, they corroborated his account of generally consistent working hours throughout his employment. Screenshots of the photographs' metadata confirmed they had been taken contemporaneously.

The employer denied maintaining any attendance records. Its representative disclaimed knowledge of any punch card system and insisted the facial recognition system was used only by employees of a related company at an adjacent restaurant — not the claimant. When the claimant was asked to explain a photograph of himself standing in front of the facial recognition machine, the representative suggested he must have entered without permission to manufacture evidence.

Tribunal Magistrate Tan rejected both positions. The punch card photographs were credible and authentic. On the facial recognition system, evidence established that the two companies operated as a single integrated entity: they shared resources extensively, staff crossed between the two restaurants, and the employer's own representative worked for both companies. She agreed, when asked, that the two restaurants shared all their resources quite extensively.

"I therefore found that the respondent had in fact maintained attendance records," Tribunal Magistrate Tan wrote. "It simply refused to disclose or make accessible such records by maintaining the position that no such records ever existed."

This constituted a breach of Section 95(2) of the EA, which requires that employee records be readily accessible to the employee or former employee to whom they relate.

That breach engaged Section 21(2) of the Employment Claims Act 2016 (ECA), which empowers the tribunal to draw any inference it thinks fit — including that evidence not produced would, if produced, have been unfavourable to the party withholding it. Tribunal Magistrate Tan drew that inference.

The employer's account was internally incoherent

The adverse inference was further reinforced by the weakness of the employer's own evidence. The restaurant had only three employees: the claimant, responsible for service; a chef; and a cleaner. The restaurant operated from approximately 6.00am to 11.00pm. The employer maintained that the claimant worked eight-hour shifts ending at around 2.00pm to 3.00pm. Yet the chef's own evidence was that his morning shift ended at 10.00am and he did not return until 4.00pm.

"On the respondent's own account, that left a gap during which neither the claimant nor the chef would be at work," Tribunal Magistrate Tan observed. The chef himself testified that he worked approximately 11 hours a day and acknowledged his own regular overtime — while maintaining the claimant worked none.

The employer also produced no documentary counter-evidence of any kind: no message, roster, or record to show the claimant had been absent on any particular day or had worked fewer hours than claimed. "The broader the claim," Tribunal Magistrate Tan noted, "the easier it becomes for an employer to find at least one day, or one record that does not fit." The employer found none.

Why foreign workers may raise grievances only after dismissal

The judgment contains a notable passage addressing what the employer characterised as the inherent improbability of a worker tolerating such conditions for an extended period without raising a formal complaint.

Tribunal Magistrate Tan cited Lord Bingham's observation that a judge "may feel very much more uncertain about the reaction of a Nigerian merchant or an Indian ship's engineer or a Yugoslav banker" than about persons from more familiar backgrounds, and may not be competent to judge how likely it is for someone whose background and experiences differ significantly from the adjudicator's own to behave in a particular way.

Applying that caution, Tribunal Magistrate Tan identified specific structural reasons why a foreign worker may rationally choose to stay silent during employment. A foreign worker's right to remain in Singapore is tied to her or his work permit. Raising grievances risks repatriation. Recruitment debts may make repatriation financially catastrophic. Transferring to another employer generally requires the existing employer's consent.

"Hence, a foreign worker with unpaid overtime or lack of rest days may, quite reasonably and rationally, consider that it is better to keep a bird in the hand — in the form of one's monthly salary — than two birds in the bush — by pressing for overtime pay or rest day pay and risking repatriation," he wrote.

He was careful to note that he made no positive finding that any of these reasons applied to the claimant specifically. His conclusion was narrower: that it was not inherently improbable that the claimant would have raised the matter only after his employment ended. By then, the risks that may have previously counselled silence would have ceased to exist.

The employer was ordered to pay the claimant S$20,000 in overtime pay, together with S$400 in costs and S$60 in disbursements.