Employment Law - Maintenance and Cessation of Relationship PDF

Employment Law (Maintenance & Cessation of Relationship) Celeste Ang Agenda 01 Maintenance of Relationship a. Harassment, Bullying & Discrimination at Work b. Performance Management & Misconduct 02 Cessation of the Relationship a. Termination of Employment - Grounds b. Wron...

Employment Law (Maintenance & Cessation of Relationship) Celeste Ang Agenda 01 Maintenance of Relationship a. Harassment, Bullying & Discrimination at Work b. Performance Management & Misconduct 02 Cessation of the Relationship a. Termination of Employment - Grounds b. Wrongful Termination & Remedies 01 Maintenance of Relationship – Common Areas of Concerns a Harassment, Bullying & Discrimination at Work Workplace Harassment & Bullying Statutes: Tripartite Advisories on: Workplace Safety and Health Act 2006 (i) Managing Workplace Harassment Protection from Harassment Act 2014 (ii) Mental Well-Being at Workplaces ◼ Statutory duty of every employer to take reasonably practicable measures as necessary to ensure the safety and health of the employees at work ◼ Employees who are victims of workplace harassment can seek civil reliefs and criminal sanctions against the individual or entity alleged to have engaged in conduct prohibited under the Protection from Harassment Act 2014 5 Anti-discrimination in the workplace Existing framework Tripartite Guidelines on Fair Fair Consideration Framework (FCF) Employment Practices (Guidelines) ◼ The FCF and Guidelines do not have the force of law ◼ Non-compliance of the FCF and Guidelines is enforced via imposition of administrative penalties or sanctions (e.g., curtailment of the company's work pass privileges). False declarations made in the applications for employment passes of foreign employees that the employer had considered all candidates fairly may be prosecuted under the Employment of Foreign Manpower Act 1990 6 Tripartite Guidelines on Flexible Work Arrangement Requests (1 Dec 2024) Replace the Tripartite Advisory on Flexible Work Arrangements issued in 2014 and the Tripartite Standard on Flexible Work Arrangements launched in 2017. Take effect on 1 Dec 2024. The Guidelines set out a recommended framework for employees to apply for flexible Ideally, employers For e.g., a possible Employers should Employers should work arrangements, and should have a business ground for engage the employee on include the reasons formal process in rejection would be where any clarifications/ for rejection in the employers to consider and place. the FWA would be discussion on the written manage such requests. detrimental to output. An request. The decision communication of unreasonable ground is if should be communicated their decision. Employers will continue to management does not in writing. have the prerogative to decide believe in FWAs. on work arrangements. 7 Upcoming legislation on workplace fairness Final Report on “Building Fairer and More Harmonious Workplaces” Age Sex, marital status, Disability and Mental pregnancy status, Heath caregiving responsibilities Nationality Race, religion, language 8 Overview of Tripartite Committee's recommendations 22 recommendations classified under 4 key thrusts Key Thrust A Key Thrust B Key Thrust C Key Thrust D Strengthen Provisions to support Processes for Ensuring fair outcomes protections against business/ resolving grievances through redress for victims workplace organisational needs and disputes while of workplace discrimination discrimination and national preserving and more appropriate objectives workplace harmony penalties for breaches 9 Defining discrimination Recommendation 1: Define discrimination as making an adverse employment decision because of any protected characteristic. ◼ Does not include indirect indiscrimination (rules or policies that are neutral on their face but may disadvantage certain groups). ◼ Example: Requiring all jobseekers to pass a numeracy test for a finance role might be indirect indiscrimination as it disadvantages older workers who tend to perform less well. This is not included. 10 Legislation will cover all stages of employment Recommendation 4: The Workplace Fairness Legislation will cover all stages of employment i.e., pre-employment, in-employment and end-employment. ◼ Pre-employment – recruitment, hiring ◼ In-employment – promotion, performance appraisal, training selection ◼ End-employment – dismissal of employees Not covered: provision of benefits, flexible work arrangements. 11 b Performance Management & Misconduct Performance Management & Review Considerations Importance of performance management: Are there contractual obligations to put in place a Gives employees a genuine chance to performance improvement plan (PIP) or to carry out any performance management process or procedure? improve A PIP should be genuine and reasonable, and give the Proper documentation helps to counter employee a real opportunity to improve and achieve wrongful dismissal claims the targets. All performance reviews should be well-documented If not done properly, can lead for evidence of poor performance. constructive dismissal claims 13 Misconduct Considerations Action or conduct amounting to a Are there contractual obligations to conduct any repudiatory breach of the employment investigation, disciplinary process or due inquiry? contract Due inquiry under section 14(1) of the Employment Act 1968 - Recommended Misconduct Employee should be informed of allegations against Wilful disobedience of lawful and him or her and given an opportunity to explain and be reasonable orders heard; due inquiry should be fair and free of bias Properly documented Negligence or incompetence 14  Due Inquiry Section 14(1) of the Employment Act 1968 (EA): “An employer may after due inquiry dismiss without notice an employee employed by the employer on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of the employee’s service…” [Emphasis added] No prescribed formal process for due inquiry, but consider if there is any contractual investigation/disciplinary process The greater the informality, the greater the danger that the ‘due inquiry’ was not properly conducted (See: Long Kim Wing v LTX- Credence Singapore Pte Ltd SGHC 151 for discussion of general principles of ‘due inquiry’). The employee should be: informed of the allegations and evidence against him/her given the opportunity to be heard and response / present their own defence Failure to carry out due inquiry may result in wrongful dismissal Wong Sung Boon v Fuji Xerox Singapore Pte Ltd and another SGHC 24 Summary dismissal of a Senior Managing Director and CEO was found to be wrongful and the employee was awarded damages in excess of SGD 1.4 million. The Court found that the Defendant failed to establish employee's breach of duties or company policies. Employers should conduct due inquiry before summary dismissal: a formal investigation should be carried out into the allegations against the employee; the employee should be notified of the alleged misconduct; the employee should be given an opportunity to present their case; the persons involved in conducting the investigation and deciding on the disciplinary outcome should not be in a position which may suggest bias. 16 Carrying out the due inquiry appropriately Singapore Recreation Club v Abdul Rashid Mohamed Ali and another SGHC 156 Summary dismissal of a General Manager for alleged unprofessional conduct. The Court ultimately found that the employer failed to discharge its burden or showing proper basis for dismissal. Employer claimed to have conducted due inquiry. The Court had a number of observations on the purported due inquiry: The employee was “ambushed” at the purported inquiry – he was told the meeting was to discuss other matters. The employee was questioned in an “oppressive and aggressive” way in which he was repeatedly interrupted before he could respond. 17 Suspension during due inquiry No common law right to suspend without pay Under section 14(8) of the EA, for the purposes of a due inquiry under section 14(1), an employer: may suspend the employee from work for a period not exceeding one week (or such longer period as the Commissioner may determine on an application by the employer) but must pay the employee at least half the employee’s salary during the period the employee is suspended from work If the inquiry does not disclose any misconduct on the employee’s part, the employer must immediately restore to the employee the full amount of the salary so withheld 02 Cessation of Relationship a Termination of Employment - Grounds  Termination generally Either employer or employee can terminate the employment contract, in accordance with its terms, at any time Either employer or employee can terminate the employment contract by giving notice or payment in lieu of notice Sections 10 and 11(1) of the EA Employers are not obliged to give any reasons when exercising its rights to terminate by giving notice or payment in lieu of notice However, if a reason is given, employer has the burden of proving said reason Summary dismissal Common law position: termination without notice for a repudiatory or fundamental breach RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd 4 SLR 413 An employment contract can be A contract may be terminated where: terminated without notice, or salary in 1. the contract states that the innocent party may terminate lieu of notice, if the other party commits a upon a certain breach; repudiatory or fundamental breach 2. a party, by words or conduct, renounces the contract; General contract law principles apply in 3. the parties intended a clause to be so important that any breach of it entitles the innocent party to terminate determining what constitutes a (breach of condition); or repudiatory or fundamental breach of an 4. the nature and consequence of the breach would employment contract deprive the innocent party of substantially the whole benefit of the contract. See also: Phosagro Asia Pte Ltd v Piattchanine, Iouri 5 SLR 1052 at -, followed more recently in Uday Mehra v L Capital Advisors and others 5 SLR 113 at - 22 Other summary termination scenarios Under the Employment Act (EA) s 11(2) of the EA: s 14(1) of the EA: s 13 of the EA: Termination for Summary Dismissal Deemed broken Wilful Breach for Misconduct Where employer fails to pay salary OR employee is Must be a breach of a Due inquiry recommended, absent for >2 continuous condition of the contract misconduct inconsistent days without reasonable of service with express or implied excuse or notice conditions of service 23 Retrenchment / Redundancy Merely a form of termination; Considerations contractual provisions apply Are there any contractual obligations to Employees are not legally entitled to offer any retrenchment / redundancy retrenchment / redundancy benefits, benefits? unless contractually provided for Even if there are no such contractual s 45 EA: Disentitlement provision obligations, consider the checklist and Tripartite Advisory on Managing Excess recommendations in the Advisory Manpower and Responsible Retrenchment (Advisory) Mandatory notification requirement: An employer with at least 10 employees must notify the MOM within 5 working days of notification to the employee 24 Protected Classes of Employees In situations of dismissal (includes contractual terminations) While pregnant During maternity leave If a pregnant employee has been working for the An employee on maternity leave cannot be employer for at least 3 months, and is dismissed dismissed (section 81 EA & section 12 Child without sufficient cause (section 84 EA) or Development Co-Savings Act 2001 (CDCSA)) retrenched (section 84A EA) the employer must pay all maternity benefits (section 12 CDCSA). National Service On the grounds of age An employee cannot be dismissed solely on the Dismissal of employees on the grounds of age grounds that the employee is liable or may be is prohibited before the employee attains the liable to perform national service (section 22 prescribed minimum retirement age (section 8 Enlistment Act 1970). Retirement and Re-Employment Act) 25 b Wrongful Termination & Remedies Wrongful Termination / Dismissal Deprivation of benefits Where termination or dismissal is not legal or proper, the termination or dismissal may be considered wrongful; an employee whose employment has been wrongfully terminated or who has been wrongfully dismissed may bring a claim for wrongful termination or dismissal Under section 14(2) EA, an employee who considers that he/she has been dismissed “without just cause or excuse” by his/her employer may lodge a claim, under section 13, Employment Claims Act 2016 (ECA), for either: (i) reinstatement; or (ii) compensation Tripartite Guidelines on Wrongful Dismissal An aggrieved employee may therefore file his/her claim: under the ECA to the Tripartite Alliance for Dispute Management (TADM) for resolution (if not resolved, referred to the Employment Claims Tribunal (ECT)); or before the Singapore Courts 27 Constructive Dismissal Constructive dismissal refers to …refers to the situation where the situations where employees are ‘forced employer’s repudiatory breach entitles out’ without being formally dismissed. the employee to treat himself as discharged from the employment Note that constructive dismissal is contract; although it is the employee included under the definition of himself who terminates the contract, he ‘dismissal’ under the EA, s 2. is considered as having been “constructively” dismissed by the Constructive dismissal can also employer. constitute wrongful dismissal – see - Wee Kim San Lawrence Bernard v Cheah Peng Hock v Luzhou Bio-Chem Robinson & Co (Singapore) Pte Ltd Technology Limited 2 SLR 577. 4 SLR 357. 28 Claims under the File a claim with the Tripartite Alliance for Dispute Management (“TADM”) Employment Claims Act e-Negotiation using TADM eServices If employee elects to bring a wrongful portal dismissal claim (and/or a salary related claim under statute or contract) under the Mediation between complainant and EA/ECA representative from organisation A wrongful dismissal claim under the EA/ECA is subject to a quantum limit of Resolved? S$20,000 per claim (and S$30,000 per Yes No claim (if union assisted)) [if combined with a Refer dispute salary related claim, then up to S$40,000 (and S$60,000 (if union assisted)] Sign settlement agreement File within 1 month after last day of between the Employment employment (unless dismissed during parties Claims State Tribunal Courts pregnancy) (Section 3 ECA) (ECT) Claims in the Singapore Courts Employee can elect to bring the wrongful termination or dismissal claim in the Singapore Court Employee is seeking compensation in excess of the ECA limits; subject to usual limitation periods (6 years) Key advantage of a claim to the TADM/ECT under the EA/ECT is that the costs are lower and more affordable Measure of damage for wrongful termination/dismissal Any damages which the Plaintiff can recover will be circumscribed by the operation of the "minimum obligation rule“ (also known as the "least onerous obligation rule") Alexander Proudfoot Productivity Services Co S’pore Pte Ltd v Sim Hua Ngee Alvin 3 SLR(R) 933 Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd 4 SLR 357 Thank you Baker McKenzie delivers integrated solutions to complex challenges. 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