New guidelines set out what constitutes wrongful dismissal

These will help in resolving employer-employee disputes

Workers and employers can now refer to clear examples of what constitutes wrongful dismissal, should any disputes arise.

New tripartite guidelines published yesterday set out illustrations of wrongful dismissal which include discrimination, avoiding benefits payment, punishing an employee for exercising an employment right, and false reasons.

For example, the guidelines make it clear that it would be wrong to dismiss with notice an employee of three years who informed the company of her pregnancy, without paying any maternity benefits and without any legitimate reason provided for the dismissal.

As for discrimination, the guidelines state that even if notice is given, it would be wrong to dismiss someone after his employer made discriminatory remarks about the employee's race and said that he preferred to hire someone of another race.

The guidelines also set out examples of dismissals that are not wrongful, such as on the grounds of poor performance, misconduct and redundancy.

Developed by the Manpower Ministry (MOM), National Trades Union Congress (NTUC) and Singapore National Employers Federation (Snef), the guidelines come after changes to the Employment Act, which now allows all employees to file claims against their employers for wrongful dismissal. Previously, this protection applied only to those earning up to $4,500 a month.

This is among the changes passed in Parliament last November and which took effect yesterday.

The Employment Claims Tribunal will now hear wrongful dismissal claims instead of MOM. Workers covered under the Employment Act can file wrongful dismissal claims at the tribunal from April 15 if mediation is unsuccessful. They must first undergo mediation at the Tripartite Alliance for Dispute Management. The Tripartite Mediation Framework has also been expanded to cover wrongful dismissal claims.

  • Examples of wrongful dismissal

  • • A worker who earned less than $4,500 a month was dismissed with notice after declining his employer's request to work overtime. The worker had wanted to take care of his infant child. The employer told the worker that he could not afford to have someone who prioritises his care-giving duties over overtime work. Dismissing an employee to punish him for exercising his employment right - in this case, to decline a request to work overtime - is wrongful.

    • An employer sacked a worker after finding out that he had filed a request for mediation with TADM for being owed three months' salary. The dismissal was wrongful as the employer was punishing the worker for exercising his employment right.

    • A worker was dismissed with notice after being told the company was restructuring and his job would no longer exist. But he later learnt that the former employer had recruited someone else to fill his post. The guidelines state that the employer did not need to provide a reason for the dismissal with notice. But in this case, the employer had provided a reason which turned out to be false. The dismissal was therefore wrongful.

The Employment Claims Tribunal (ECT) will now hear wrongful dismissal claims instead of MOM.

Workers covered under the Employment Act can file wrongful dismissal claims at the tribunal from April 15 if mediation is unsuccessful. They must first undergo mediation at the Tripartite Alliance for Dispute Management (TADM). The Tripartite Mediation Framework has also been expanded to cover wrongful dismissal claims.

Manpower Minister Josephine Teo said last year that an average of 200 employees sought assistance for wrongful dismissal each year, over the past five years.

The new guidelines provide several other illustrations of wrongful dismissal, based on cases MOM has heard or received feedback on.

For dismissals that are not wrongful, the employer needs to show that there was poor performance or misconduct, which includes dishonest behaviour at work, insubordination or bringing the organisation into disrepute.

Misconduct is the only legitimate reason for dismissal without notice.

In general, when notice is given, dismissals are presumed not to be wrongful as both employees and employers have a right to terminate employment with notice based on the contract.

Redundancy is also a legitimate reason for dismissing an employee with notice. According to the guidelines, this happens when there is is excess manpower, the company is undergoing restructuring, the old job no longer exists or the worker's job scope has changed.

NTUC assistant secretary-general Cham Hui Fong said the guidelines provide employees with clarity on the grounds on which they can appeal if they feel they have been wrongfully dismissed.

Snef executive director Koh Juan Kiat said the organisation welcomes the clarity "as it will help prevent frivolous claims from employees, minimise workplace disputes as well as reduce unproductive and disruptive discourse".

Institute for Human Resource Professionals chief executive Mayank Parekh said: "A badly handled dismissal can have significant repercussions on the company's reputation and employee engagement levels, leading to severe business impact."

 
 
 

Other observers said the guidelines are useful, though some called for more information to be given.

Labour MP Patrick Tay, who is also an assistant secretary-general of NTUC, asked that the ECT publish the grounds of decisions in selected cases so that both employers and employees know how such cases are being decided.

"This will also help in tripartite mediation and (give rise to) speedier, more effective resolution of claims from either party," he said.

Employment lawyers said some issues still need to be clarified.

These include the question of who bears the burden of proof in constructive dismissal situations, which are where an employer's conduct compels an employee to resign, said Withers KhattarWong partner Amarjit Kaur.

TSMP Law Corporation partner Ian Lim said there could be cases when a contractual termination is a wrongful dismissal in disguise.

He said it is a welcome move that discrimination is expressly spelled out in the guidelines as grounds for a finding of wrongful dismissal, as it is not otherwise dealt with in the Employment Act.


Correction note: An earlier version of this article said that workers covered under the Employment Act who want to file wrongful dismissal claims at the Employment Claims Tribunal must first undergo mediation under the Tripartite Mediation Framework. The framework applies only to union members from non-unionised companies. We are sorry for the error.

A version of this article appeared in the print edition of The Straits Times on April 02, 2019, with the headline 'New guidelines set out what constitutes wrongful dismissal'. Print Edition | Subscribe