Employer Says It Kept No Attendance Records? The Tribunal Drew an Adverse Inference ([2026] SGECT 2)

What happened

The employee worked for the employer, a company that operated a restaurant, for about two years under a work permit. His employment ended in late 2025. The employer had never given him written key employment terms, but both sides agreed that his terms were those in the Ministry of Manpower in-principle approval: 44 hours a week over six days, a monthly salary of $2,000 made up of basic pay and a fixed allowance, and an overtime rate of $11.80 an hour [2].

The employee said he had worked 13 to 15 hours a day, seven days a week, throughout his employment and had never been paid for the extra hours. He limited his claim to the final eight months and put his overtime at 1,848.8 hours, worth $21,815.84. Because the tribunal’s jurisdiction in his case was capped at $20,000, he claimed that sum. The employer denied liability entirely. Its position was that he had not worked any overtime at all [3].

The employee’s main evidence was an attendance table covering the claim period, prepared with the help of a non-profit organisation after the dispute began [10]. He said it was based on handwritten daily notes he had kept from early 2025, when the employer moved from punch cards to an electronic attendance system. The notes were never produced [13]. At the tribunal’s direction he produced, during the hearing, photographs from his phone of punch cards for three months in 2024, with their metadata, and a photograph of himself at the electronic attendance machine, which was installed at neighbouring premises run by a related company [14], [15].

The employer relied on three witnesses: its office manager, its director and the chef who worked alongside the employee. All three said he never worked overtime. Hours were said to be communicated verbally the day before, shifts were said to be about eight hours, and no records of hours were said to exist [16], [17], [18]. The office manager denied any knowledge of a punch card system and said the electronic system was for the related company’s staff only [18]. The employer also suggested that the claim was brought in retaliation after it ended the employment [22].

What the tribunal decided

The burden was on the employee. He had to show that it was more likely than not that he had worked 1,848.8 overtime hours in the claim period [21].

Before turning to the evidence, the tribunal addressed two points the employer had not raised [4]. First, the hours claimed far exceeded the statutory ceilings in the Employment Act, under which an employee must not work more than 72 hours of overtime a month or more than 12 hours in a day [5]. Following the High Court’s decision in Hossain Rakib v Ideal Design & Build Pte Ltd, the tribunal held that the monthly ceiling does not stop an employee claiming pay for overtime beyond 72 hours, because the provision exists to protect employees, and an employer cannot use its own statutory breach as a shield against paying wages it owes. It applied the same reasoning to the 12-hour daily limit [6].

Second, the employee said he worked seven days a week, so he had worked on rest days. Pay for rest day work falls under section 37(3) of the Employment Act and would have been more favourable to him [7]. But the claim referral certificate, the document issued after mediation that defines what the tribunal can hear, covered only overtime under section 38(4). The tribunal therefore had no jurisdiction over rest day pay. It could still award overtime under section 38(4) for hours beyond 44 a week, even where those hours fell on a rest day. The employee would simply recover less than he might otherwise have done [8].

The tribunal rejected the argument that the employee’s account was inherently improbable. It accepted that it had at first found the argument attractive [23]. Relying on extra-judicial writings by two English judges rather than on binding authority, it cautioned against assuming how a person from a different background would behave [24]-[26], and was not persuaded that there was anything inherently improbable about a worker tolerating such conditions and raising them only after the job ended [27]. It observed in general terms that foreign workers may have particular reasons to stay silent, because their right to remain in Singapore is tied to their employment [28]. But it made no finding that any of those reasons applied to this employee, since no evidence had been led on the point [29]. The timing of the claim, without more, did not undermine its factual foundation [29], [30].

On the evidence, the tribunal was alive to the risk in self-made records. It observed that “An opportunistic employee could easily fabricate such records to support a claim against a former employer.” [31]. It nevertheless found the attendance table credible, for two reasons. The employee gave a detailed and internally coherent account of how the table was prepared and why he started keeping notes when he did, which tied in with the photographs of the punch cards and the attendance machine [33]. A single discrepancy in how he had described the electronic system in an earlier statement was treated as a minor error in interpretation [34]. The punch card photographs were authentic contemporaneous records that corroborated the table. Although they predated the claim period, his case had always been that his hours were consistent throughout, so they still carried corroborative value [35]. That established a prima facie case, and the evidential burden shifted to the employer to show that he had not worked those hours [36].

The tribunal then turned to the employer’s records. “It would not have been difficult for an honest and responsible employer to discharge that burden.” [37]. Section 95(1) of the Employment Act requires an employer to make and keep records for every employee and former employee, including the hours worked each day and the duration of breaks. An employer with such records could simply have produced them and pointed to any discrepancies [37]. The employer’s denial of any punch card system was unconvincing in the face of the photographs [38]. Its claim that the electronic system was reserved for the related company’s staff was rejected: the evidence, including from the employer’s own witnesses, showed that the two companies operated for all practical purposes as a single integrated entity, with extensively shared resources [39].

The tribunal found that the employer had in fact maintained attendance records. In its words, “It simply refused to disclose or make accessible such records by maintaining the position that no such records ever existed.” [40]. That breached section 95(2), which requires records to be readily accessible to the employee or former employee. The breach engaged section 21(2) of the Employment Claims Act, under which the tribunal may draw any inference it thinks fit from a failure to comply with section 95, including an inference that the unproduced evidence would have been unfavourable to that party. The tribunal drew that inference [40].

The employer’s own evidence reinforced the inference. Its case was not that the overtime was less than claimed, or had been paid, but that there was none at all [41]. A claim covering every day for eight months is easy to contradict with a single message, roster or record showing the employee absent or working fewer hours on one day, yet the employer produced no counter-example [42], [43]. Its insistence that all communication about hours was verbal was hard to accept when hours and rest days were said to change daily [43]. With only a handful of staff and a restaurant open from early morning until late at night, the tribunal could not see how an eight-hour shift system could have worked [44]. On the employer’s own account there was a daily gap when neither the employee nor the chef would have been at work, and the chef himself worked about 11 hours a day [45].

The tribunal was satisfied that the employee had worked the hours in his table. Any doubt about their precision was immaterial and was in any case to be resolved in his favour because of the adverse inference [46]. The claim was allowed in full: $20,000, plus $400 in costs and $60 in disbursements [47]. The published grounds do not say whether the decision has been appealed.

What this means for employers

• Keep the records section 95 requires. Daily hours worked and break durations must be recorded for every employee and former employee. The tribunal said an employer with such records could easily have produced them and identified any discrepancies with the employee’s version [37].
• Never deny that records exist if they do. The finding that the employer had records and was withholding them turned a defensible evidential contest into a breach of section 95(2) and an adverse inference under section 21(2) of the Employment Claims Act. Every doubt about the employee’s figures was then resolved against the employer [40], [46].
• Records held by a closely related company may be treated as yours. Where two companies share staff and resources and operate as one business, the argument that the system belonged to the other entity was rejected [39].
• An all-or-nothing denial is a high-risk defence. The employer did not say the overtime was less than claimed or had been paid; it said there was none [41]. A broad claim invites contradiction, and one message, roster or record showing a shorter day would have helped. None was produced [42], [43]. Your witnesses’ accounts must also fit together; here they left a gap in cover that made overtime the more likely explanation [44], [45].
• The statutory ceilings are not a shield. Overtime beyond 72 hours a month or 12 hours a day is still payable [5], [6]. Separately, issue written key employment terms. Here none existed, and the in-principle approval had to serve as the contract [2].

What this means for employees

• Keep your own record of hours, and be ready to explain it. Self-made timesheets on their own attract suspicion [31]. This employee succeeded because he explained coherently when and why he began keeping notes [33] and had photographs of punch cards, with metadata, that matched his table [35].
• Produce everything before the hearing. The handwritten notes were never produced [13], and the punch card photographs surfaced only at the tribunal’s direction during the hearing [15]. Evidence from outside the claim period can still corroborate you if your hours were consistent throughout [35].
• Complaining only after termination does not by itself sink the claim. The tribunal did not think that the timing of a claim, without more, necessarily undermined its factual basis [27], [29].
• Get every head of claim onto the claim referral certificate. Salary and overtime claims start with mediation at the Tripartite Alliance for Dispute Management; the guide to TADM and the Employment Claims Tribunals explains the process. The certificate here covered only overtime, so the tribunal could not award rest day pay, which would have been worth more [7], [8]. Salary claims must be lodged within 6 months of leaving, or within 1 year for current employees.
• Hours beyond the legal limits are still claimable, but the cap applies. Working more than 72 overtime hours a month or 12 hours a day does not remove your right to be paid for them [5], [6]. But the tribunal’s award is capped at $20,000, or $30,000 where the mediation was union-assisted or under the Tripartite Mediation Framework. This claim was worth $21,815.84 and the award was $20,000 [3], [47].

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Frequently asked questions

Does an employer in Singapore have to keep records of employees’ working hours?

Yes. Section 95(1) of the Employment Act requires an employer to make and keep employee records containing prescribed particulars for every employee and former employee, including the hours worked each day and the duration of any breaks. Section 95(2) requires those records to be readily accessible to the employee or former employee they relate to. In [2026] SGECT 2 the tribunal found that an employer which had records but denied they existed had breached section 95(2), and that the breach justified an adverse inference against it [37], [40].

What is an adverse inference under section 21(2) of the Employment Claims Act?

Section 21(2) allows the Employment Claims Tribunals to draw any inference it thinks fit from a party’s failure to comply with specified statutory obligations, including the record-keeping duty in section 95 of the Employment Act. One permitted inference is that evidence not produced because of that failure would, if produced, have been unfavourable to the party who failed to produce it [40]. In practice it means the tribunal may assume the missing records would have supported the other side. In [2026] SGECT 2 that inference led the tribunal to resolve any doubt about the employee’s hours in his favour [46].

Can I claim overtime pay if I worked more than 72 hours of overtime a month or more than 12 hours a day?

Yes. The Employment Act provides that an employee must not work more than 72 hours of overtime a month or more than 12 hours in a day, save in certain specified circumstances [5]. Those limits exist to protect employees, and the tribunal held that they do not bar payment for hours actually worked. The High Court so held for the monthly limit in Hossain Rakib v Ideal Design & Build Pte Ltd, and in [2026] SGECT 2 the tribunal applied the same reasoning to the daily limit [6].

Is my overtime claim weaker because I only complained after I was terminated?

Not by itself. In [2026] SGECT 2 the employer contended that the account of a worker who tolerated 13 to 15 hour days for months without complaint, then claimed only after termination, was inherently improbable [22]. The tribunal was not persuaded that there was anything inherently improbable about an employee tolerating poor conditions and raising them only once the job ended, and held that the timing of a claim, without more, did not undermine its factual foundation [27], [29]. What mattered was the documentary and witness evidence [30].

This decision is one of several 2026 Employment Claims Tribunals decisions discussed in Unpaid Salary, Overtime, Commission and Deductions: The 2026 ECT Decisions Employers and Employees Should Know.

This article is for general information only and is not legal advice. It discusses a decision of the Employment Claims Tribunals as reported at the citation given; the parties are anonymised in the published grounds and are referred to here only as the employee and the employer. The law stated is as at September 2026.