Employment Law (Introduction) PDF

**Baker McKenzie Wong & Leow.** **Employment Law (Introduction)**\ **Agenda** **01** Overview of Key Legislations [**02** Classes and Categories of Employees] **03** Statutory Rights and Obligations of Employees and Employers **04** The Employment Contract: Express, Implied and Variation of Te...

**Baker McKenzie Wong & Leow.** **Employment Law (Introduction)**\ **Agenda** **01** Overview of Key Legislations [**02** Classes and Categories of Employees] **03** Statutory Rights and Obligations of Employees and Employers **04** The Employment Contract: Express, Implied and Variation of Terms **05** Industrial Relations **01 Overview of Key Legislations**\ **01 Key Legislations** The Employment Act ("**EA**") - The main legislation governing labour law in Singapore - Applies to those who work under a contract *of* service (instead of a contract *for* service) - While employers and employees are free to negotiate the terms of the employment contract, the EA works as a 'floor'. **01 Key Legislations** Key Statutes/ Regulations Other pertinent statutes/ regulations to take note of: - Employment of Foreign Manpower Act 1990 - Central Provident Fund Act 1953 - Child Development Co-Savings Act 2001 - Industrial Relations Act 1960 - Retirement and Re-employment Act 1993 - Work Injury Compensation Act 2019 - Workplace Safety and Health Act 2006 - Tripartite Advisories (and guidelines/guidance) **02 Classes and Categories of Employees**  a. any seafarer; b. any domestic worker; c. \[Deleted by Act 55 of 2018\] d. any person belonging to any other **Categories of 'Employee'** (all covered by the EA)  **Part IV of the EA** "Rest Days, Hours of Work and Other Conditions of Service" Only applies to: 1. **Workman**: labourer, operator of a vehicle for transport, other specified person, earning \ 1. Usually *prima facie* void and unenforceable as restraints of trade 2. But may be upheld if (i) legitimate business interest; and (ii) scope **Implied Terms** 1. **Implied by Courts:** if it is considered that it is necessary that all contracts of that type should have a standardized term. These constitute implied terms in law, and in terms of employment, such implied terms include the: 1. obligations of confidence; 2. duty of care; and 3. duty of good faith and fidelity. 2. **Implied by Custom:** possible for terms to be implied on the basis of custom or practice, if it is certain and reasonable and does not contradict an express term. 3. As with other forms of contractual interpretation, cannot contradict an express term. **Variation of Terms** Certain employment letters or agreements may be subject to the terms in handbooks or rules and regulations, which will become part of the terms of the contract. If the company chooses to amend them, the question then becomes to what extent such amendments are allowed as unilateral variations of the contract of employment. 1. Is there a variation clause in the contract? 2. Even if there is a variation clause, does it pertain to a key employment clause? 3. Where there is no variation clause, or where a key employment clause is  **05 Industrial Relations** **The Tripartite Partners** **Singapore\ National** **Employers\ Federation\ (SNEF)** National trade union for\ employers **Ministry of\ Manpower** **National Trade\ Unions Congress\ (NTUC)** The national\ confederation of trade\ unions  a. employers; b. to improve the working conditions of workmen or enhance their economic and social status; c. - The Industrial Relations Act created a system to prevent industrial disputes by allowing employees to engage in collective bargaining, which leads to the entry of a collective agreement between the "recognised" class of employees (i.e. unionised employees) and the employer - Presently, trade unions whose membership consists of a majority of non-executive employees cannot seek recognition in respect of executive employees whose position, function or duty may give rise to a conflict of interest. There are also limited purposes/matters in respect of representation of executive employee After a collective agreement has been certified by the Industrial Arbitration Court, it is binding on the employer and the unionised employees only, not all employees at large. For unionised employees, their employment relationship is governed by both the employment contract and the collective agreement. **Recognition:** Trade union obtains recognition from employer (if employer rejects, the union can apply for a secret ballot, where they must be recognized if majority of the employees are members of said union) **Notice of proposals:** The recognized trade union may then serve a notice setting out proposals for a collective agreement, inviting the employer to negotiate a collective agreement.  **Certification:** The resulting collective agreement must then be certified by the Industrial Arbitration Court before it can be considered binding. **Application for Interpretation:** After certification, any person bound by the award, or the trade union, may make an application to the Industrial Arbitration Court to get an interpretation of the terms of agreement.  **Baker McKenzie delivers integrated solutions to complex challenges.** Complex business challenges require an integrated response across different markets, sectors and areas of law. Baker McKenzie\'s client solutions provide seamless advice, underpinned by deep practice and sector expertise, as well as first-rate local market knowledge. Across more than 70 offices globally, Baker McKenzie works alongside our clients to deliver solutions for a connected world. **bakermckenzie.com** Baker & McKenzie.Wong & Leow is incorporated with limited liability and is a member firm of Baker & McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a \"principal\" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an \"office\" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. © 2023 Baker & McKenzie.Wong & Leow **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**\ **Harassment, Bullying & Discrimination at Work** **Workplace Harassment & Bullying** Statutes: Workplace Safety and Health Act 2006\ Protection from Harassment Act 2014 Tripartite Advisories on: i. Managing Workplace Harassment ii. Mental Well-Being at Workplaces **Anti-discrimination in the workplace** **Existing framework** The FCF and Guidelines do not have the force of law fairly may be prosecuted under the Employment of Foreign Manpower Act 1990 **Tripartite Guidelines on Flexible Work Arrangement Requests (1 Dec 2024)**  **Upcoming legislation on workplace fairness** Final Report on "Building Fairer and More Harmonious Workplaces" **Age** **Nationality** **Sex, marital status,\ pregnancy status,\ caregiving\ responsibilities** **Disability and Mental\ Heath** **Race, religion,\ language**  **Overview of Tripartite Committee\'s recommendations** **22 recommendations classified under 4 key thrusts**  **Key Thrust A** Strengthen\ protections against\ workplace\ discrimination **Key Thrust B\ **Provisions to support\ business/\ organisational needs\ and national\ objectives **Key Thrust C** Processes for\ resolving grievances\ and disputes while\ preserving\ workplace harmony **Defining discrimination** - - **Legislation will cover all stages of employment** - Pre-employment - recruitment, hiring - In-employment - promotion, performance appraisal, **Not covered:** provision of benefits, flexible work arrangements. **b Performance Management** **Performance Management & Review** Importance of performance management: - Gives employees a genuine chance to improve - Proper documentation helps to counter wrongful dismissal claims - If not done properly, can lead constructive dismissal claims *Considerations* - Are there contractual obligations to put in place a performance improvement plan (PIP) or to carry out any performance management process or procedure? - A PIP should be genuine and reasonable, and give the employee a real opportunity to improve and achieve the targets. - All performance reviews should be well-documented for evidence of poor performance.  **Misconduct** - Action or conduct amounting to a repudiatory breach of the employment contract - Misconduct - Wilful disobedience of lawful and reasonable orders - Negligence or incompetence - Are there contractual obligations to conduct any investigation, disciplinary process or due inquiry? - Due inquiry under section 14(1) of the Employment Act 1968 - Recommended - Employee should be informed of allegations against him or her and given an opportunity to explain and be heard; due inquiry should be fair and free of bias - Properly documented **Due Inquiry**   - - - - informed of the allegations and evidence against him/her - given the opportunity to be heard and response / present **Failure to carry out due inquiry may result in wrongful dismissal** 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: - - - - **Carrying out the due inquiry appropriately** *Singapore Recreation Club v Abdul Rashid Mohamed Ali and another* \[2020\] 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: - - **Suspension during due inquiry** - No common law right to suspend without pay - - - - **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 - - - **Summary dismissal** Common law position: termination without notice for a repudiatory or fundamental breach - An employment contract can be terminated *without* notice, or salary in lieu of notice, if the other party commits a repudiatory or fundamental breach - General contract law principles apply in determining what constitutes a repudiatory or fundamental breach of an employment contract **Other summary termination scenarios** Under the Employment Act (EA) **Retrenchment / Redundancy** **Protected Classes of Employees** In situations of dismissal (includes contractual terminations) **During maternity leave** An employee on maternity leave cannot be dismissed (section 81 EA & section 12 Child Development Co-Savings Act 2001 (CDCSA)) **While pregnant** If a pregnant employee has been working for the employer for at least 3 months, and is dismissed without sufficient cause (section 84 EA) or retrenched (section 84A EA) the employer must pay all maternity benefits (section 12 CDCSA). **National Service** An employee cannot be dismissed solely on the grounds that the employee is liable or may be liable to perform national service (section 22 Enlistment Act 1970). **On the grounds of age** Dismissal of employees on the grounds of age is prohibited before the employee attains the 4 \^ prescribed minimum retirement age (section 8 Retirement and Re-Employment Act) **b Wrongful Termination & Remedies** \^0\^ **Wrongful Termination / Dismissal ^Deprivation^** - 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: - - before the Singapore Courts **Constructive Dismissal** - Constructive dismissal refers to situations where employees are **'forced out**' without being formally dismissed. - Note that constructive dismissal is included under the definition of 'dismissal' under the EA, s 2. - Constructive dismissal can also constitute wrongful dismissal -- see *Cheah Peng Hock v Luzhou Bio-Chem Technology Limited* \[2013\] 2 SLR 577. **Claims under the Employment Claims Act** - If employee elects to bring a wrongful dismissal claim (and/or a salary related claim under statute or contract) under the EA/ECA - A wrongful dismissal claim under the EA/ECA is subject to a quantum limit of S\$20,000 per claim (and S\$30,000 per claim (if union assisted)) \[if combined with a salary related claim, then up to S\$40,000 (and S\$60,000 (if union assisted)\] - File within 1 month after last day of employment (unless dismissed during pregnancy) (Section 3 ECA)  **Claims in the Singapore Courts** - - - Measure of damage for wrongful termination/dismissal - **Baker McKenzie Wong & Leow.** **Baker McKenzie delivers integrated solutions to complex challenges.** Complex business challenges require an integrated response across different markets, sectors and areas of law. Baker McKenzie\'s client solutions provide seamless advice, underpinned by deep practice and sector expertise, as well as first-rate local market knowledge. Across more than 70 offices globally, Baker McKenzie works alongside our clients to deliver solutions for a connected world. **bakermckenzie.com** Baker & McKenzie.Wong & Leow is incorporated with limited liability and is a member firm of Baker & McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a \"principal\" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an \"office\" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. © 2023 Baker & McKenzie.Wong & Leow Audio file ========== Your Recording 118.wav Transcript ========== 00:00:07 Alright, sorry. I just wanted to give a couple of minutes, but everybody come online, so I will run through the questions today. Good to see everybody. My name is Celeste. I will be switching off my video and I will be sharing the question list as I go through the questions. I will keep an eye on. 00:00:25 The Q&E. 00:00:26 As I go along so I know that there are some questions on the exams, so for that for the exam questions as I leave we get. 00:00:33 Back with the. 00:00:34 With the responses shortly, so I will just be dealing with the cost related questions for today. 00:00:43 OK, so I think with that, you know I\'ll kick. 00:00:45 Off I will. 00:00:47 Be, you know, I sort of look at all the questions and I\'ll be grouping them in optics so that it\'s easier for us to talk through the questions today. So I\'ll I\'ll be so going off video for now and I will share the questions. 00:01:04 OK, so the first topic that we\'ll talk about today is in relation to employment contracts. And there are two questions in relation to implication of terms. 00:01:13 And there are questions 9 and 10, which you will see on the screen now. 00:01:18 So the first question is. 00:01:19 Around, you know what is an example of an implied incorporation in in relation to the terms in an employment contract? 00:01:27 So for this, you know an. 00:01:29 Example which I. 00:01:30 Can give is that you know it may be possible to argue that the terms, for example of an employment handbook. 00:01:37 You know are and slightly incorporated in an employment contract, even though the contract itself or the letter of office case may be does not expressly incorporate the terms of the handbook. 00:01:50 As long as it can be shown that party is intended for the terms of the handbook, be part of the contractual documents. So that\'s an example of implied incorporation. 00:01:59 And then the next question is related to this is in relation to implication on the basis of. 00:02:06 Custom or practice? You know whether they are industry customs per say. So I think in Singapore probably less so, but an example that I can give you know is you know in a in a in a UK case where the Court for example found that their employer had the right to make you know deductions from a river\'s majors due to bad work. 00:02:25 Because it was customary practice, you know, in the factory or industry practice in the region. So there are, you know, examples of customs and and and practice. And again it will be a question of whether such a practice or custom is, you know widely accepted or not. 00:02:43 So those are relation to the employment contracts itself. 00:02:47 The next question that I will deal with is in relation to a question on the Employment Act and particularly the part 4 employees and that is. 00:03:00 And that is at question 25. So I\'ll show the question on the screen. 00:03:10 So yeah, so 25, the question is whether so there\'s a slide in the video lecture, one where it relates to the part 4 employees and the issue there is whether earning less than 4005 per month should be earning, you know equal. 00:03:29 Or less than 4005 a month, and then the same question, you know for the other part for employee which is less than 2006 a month, whether it should be earning? 00:03:37 Less than or equal to 2006 a month. So the answer is yes. So the wording of the statute is not exceeding right. So it\'s not exceeding. 00:03:47 So that is question 25. The next question is in relation to retrenchment and that is that question 22? 00:03:57 So I\'ll show on the screen again. 00:04:00 So the question is whether section 45, A 45 of the Employment Act, prevents an employer from contractually agreeing. 00:04:09 To provide retirement benefits to an employee who has served the employer for less than two years. So just to recap here, So what do you section 45 is basically a disentitlement provision where it says that. 00:04:23 You know, it doesn\'t let an employee with less than who\'s working less than two years is not entitled to retrenchment benefits. So the short answer to this question is that section 45 itself does not prevent employers from contractually agreeing to provide retrenchment benefits over and, you know, in excess of whatever the statute. 00:04:42 Bites. So, you know, we\'re trying to benefit is under Singapore law typically is one for the employer to determine. 00:04:53 Although they are tripartite guidelines around infringement benefits, but generally the contracts would trim that. So it\'s a matter of contractual provision. 00:05:02 And not however, that you know Section 45 of the Employment Act is actually in Part 4, right? So it only applies to part 4. 00:05:09 Employees. 00:05:10 But it that doesn\'t affect the general rule that an employer can contractually agree to provide better benefits. 00:05:18 So that is on retrenchment. 00:05:20 The next question that I\'ll deal with or the next set of questions that I\'ll deal with is in relation to retirement and reemployment. 00:05:29 So I see that there questions coming in and I will deal, I\'ll pick that up, you know at the end. 00:05:39 OK, so dealing with the questions on retirement and reemployment. So that\'s questions to 21 and 23. So I\'ll show two first. 00:05:56 So the question. 00:05:57 Here is whether in relation to the retirement and Reemployment Act, whether an employee. 00:06:03 A way provided an employee cannot be dismissed on grounds of age and the question is, you know, what if an employer employee has attained the age of 63? Can an employer force the employee to retire? So the short answer is is no, the employer cannot force the employee to retire. 00:06:22 So under the retirement and Reemployment Act. 00:06:26 The employee is in fact obliged to offer reemployment to the employee. You know, if the employee is Singapore citizen or single room resident and the employee needs the eligibility criteria of reemployment. 00:06:41 Which you know is set out in. 00:06:42 The slides so. 00:06:43 If the employer cannot offer such reemployment, you know to an employee being a Singapore citizen or Singapore human resident who has met the eligibility criteria. 00:06:53 If there\'s like, cannot offer such reemployment, then the employer must offer an employment assistance payment. 00:07:02 So that\'s the answer to the question. 00:07:04 The next set of questions is in relation to. 00:07:09 The. 00:07:10 Two years, right? 00:07:11 So I\'ll show the two questions. It\'s 21 and 23. 00:07:16 So yeah, so 21. 00:07:21 Is in relation to the the lecture, so 21 is this question here I\'ll leave. I\'ll I\'ll give you know a couple of seconds for everybody. Read through that. 00:07:33 And then 23. 00:07:38 Again, you don\'t have to look at that. 00:07:48 OK, so I think there is a miss so you know you know, I\'ve misspoke about the three years, right? So it\'s actually two years. So the required period is 2 years before turning 63, not 3 years. So you should look at the slides. 00:08:07 And the requirement for this two year requirement is actually from the retirement and reemployment exemption notification. 00:08:16 2011 so the requirement is stated in in this exemption notification where it says that you know certain employees are exempted from the provisions in the main legislation. 00:08:30 And one of them is that, you know, if the employee if the employee has served the current employer for less than two years before 2063. 00:08:38 So for everybody\'s benefit, it is section 41 and four, two of the retirement and reemployment exemption notification. 00:08:48 2011. 00:08:51 So we find out the next topic I\'m. 00:08:52 Just going to have a look at the. 00:08:53 Q&E 1st let me have a look. 00:09:09 OK, there is a question on retirement, which I will. 00:09:14 Tons so they can have a look at it. 00:09:19 So the question. 00:09:19 Is whether you know an employee an employer needs to provide some kind of compensation if the employee attains 63 years and cannot offer employment. So as I mentioned, if the employee is a Singapore citizen and a single permanent resident, and the employee needs the eligibility criteria but the employer. 00:09:38 Do not offer reappointment, then the employer must offer an EAP or employment assistance payment. 00:09:46 I\'ll just see what has anything on this. 00:09:54 Again, and really, the question why has it been employee reaches 69, so the reemployment obligation is every year for five years. 00:10:04 So every year, I mean you can have a yearly fund track and can assess the employee on a yearly basis until their employee hits. 00:10:12 69 and then thereafter, there\'s no more reemployment obligation, so you don\'t. You\'re not forcing the employee to retire per say, you know, once they pass the five year Mark. But effectively what you\'re doing is that you\'re telling the employee you basically terminate the contract based on your reappointment contract as the case may be. OK. So that\'s the answer to that question. 00:10:33 OK, moving back. 00:10:35 So as I mentioned, you know there are some questions on the exams and those you know we will answer. 00:10:46 Separately, so as I leave out so separately, but I think there\'s a whole series of questions about whether is it just a slice or museum in the cases and legislation and reading lists which answer to that is that the external examinable content will be those that are on the slides. 00:11:07 OK. 00:11:12 UM. 00:11:15 OK. So those are the questions, yeah. 00:11:25 OK. So just to. 00:11:27 Just to wrap up the point about retrenchment benefit, there is a question here which I will. 00:11:34 Answer Life right? So here the question is why would this benefit if there is a term in the contract that provides for retrenchment benefits for someone who has worked less than two years that permits void? 00:11:47 No, it is not. It is not void. So as I mentioned earlier on, there is no prohibition regardless of section 45 of the NEA for an employer to contractually provide for retrenchment benefits. 00:12:04 The basically makes the term void if the if if the term is less favorable, right? So there\'s no problem in the employer offering more favorable terms. 00:12:16 OK. So just to confirm again. 00:12:19 A term in the contract that provides for retrenchment benefits of someone who has worked less than two. 00:12:23 Years is not void. 00:12:24 OK, an employer is free to contractually agree to pay retransform benefits. 00:12:31 OK. So that deals with those questions. So moving on to a series of questions on termination. 00:12:39 So the first that I would deal with is question one with our show. 00:12:48 So question 1 here. 00:12:51 Since the employer does not need to give reasons give to give reason for termination of an employee, why would an employer choose to keep the reason? So so we always advise our clients not to give a reason for termination, especially when you are relying on contractual. 00:13:07 Terms or termination, but sometimes you know, employers may say, well, you know there are there\'s some business reasons for doing that. You know it is a policy of the of the of the company that we do need to give you know some reason for termination even though I\'m not obliged to give reason but you know as we mentioned you know the. 00:13:27 General recommendation to employers is not to give a reason for termination, especially when 1 is just relying on contractual terms. 00:13:36 OK. 00:13:38 So the next question here. 00:13:49 Is 17. 00:13:52 On termination. 00:14:00 So the question here is in relation to the statement. 00:14:07 In the slides that says that or, I think it was spoken, it could be spoken, but anyway the the statement here is employees are not obliged to give any reasons for exercising his right to suddenly by giving notice or payment only appointed so. 00:14:19 As I mentioned, if you are giving, if you are exercising a contractual right, you know you\'re not obliged to give any reasons. 00:14:26 Then it says, then the the difficulty of reconciling is that if there is a reason given that employer has the burden of proving the reason, yes, that\'s correct as well. 00:14:35 Which is why you know I mentioned earlier on that if you\'re exercising a contractual right to terminate by giving notice of payment in view of notice, you know you you should not give a reason, otherwise you will be obliged to prove the reason. If you give one. 00:14:50 So then the question here, then views with chopping pop, you know where if the if the company did not tell the plaintiff anything and just fire its salary and you have notice, then that would have been no issue at all. Yes and no. So maybe I\'ll just give a bit of background on chopping pop right. So terminating. So I just want to make. 00:15:10 Just some nomenclature here because there\'s a use of the word firing here and I think firing is used. You know, in in a few contexts as well. So there is a difference between terminating. Sorry, no difference. So firing somebody right is typically used when you know we are referring to a situation of summary dismissal, IE you are. 00:15:31 Terminating somebody automating the appointment of someone without giving notice or without payment. So and that usually you know, equates to a summary dismissal or dismissal for calls, right? 00:15:44 So terminating a contract of appointment without reason is slightly different from firing where it is for cause. OK, so terminating or contract of employment without reason is permissible. 00:15:58 If the employer complies with the terms of the employment contract termination, for example, you know, as is stated here, by giving the gradual notice or payment due on notice. 00:16:08 So chopping hot, right? So chapping hot. 00:16:12 In chopping hall, the court found that the employee was constructively dismissed, right so constructively dismissed. Basically is a situation where the employer doesn\'t. 00:16:24 Doesn\'t really overtly terminate an apartment contract, but just makes it so difficult for the employee that the employee is compelled to resign, which is, you know, the concept of constructive dismissal. So in crapping out the court found that the employee was constructively dismissed because the employers had, you know, the employers breach had led the employee to resign. 00:16:44 And what the court therefore ordered is contractual measure of damage, IE what it would have been taken to terminate the employee employees employment contract contractually, right. 00:16:55 And what is notable in that contract? 00:16:58 Because there\'s a question about whether is it OK if it\'s just fired with salary in view of notice. So in trapping hall it is important to to to note that the employment contract of the employee that case is is is, you know reads as followed right and I. 00:17:13 Would. 00:17:13 Just read it. 00:17:15 Read the clause out for everybody\'s benefit. 00:17:17 So the termination. 00:17:18 Clause provides that the employment of the executive may be terminated at any time by the company paying to the executive and amount equivalent to the aggregate basic salary. 00:17:31 Which he would otherwise receive for the remaining period of the initial term, or an amount equivalent six months salary based on the executives last drawn monthly salary, whichever is higher amount. 00:17:44 So what the contractual provision provides in this contract right, is that if the employer wants to terminate the employment of the executive, then the employer would have got to pay either an amount equivalent to the remaining period of it, an initial term, IE is a fixed term contract or an amount equivalent to six months notice. 00:18:06 Whichever is higher amount. 00:18:08 So chopping off is a case where there is no. 00:18:11 You know, salary in lieu of no, this kind of provision, right? It\'s not like it provides that you can terminate 3 months notice or you know payment in your three months. 00:18:18 Notice so in. 00:18:19 This case it\'s a bit unique in the sense that it says that you you need to pay either an amount equal to the remaining period of the initial term or six months salary, whichever is the higher. 00:18:29 And in the chipping hot case, because, you know he is still in the in the short term, the court found that the appropriate measure of damage would be his salary for the remaining term of his fixed term contract. 00:18:41 So in answer to this question, if the company simply terminated Mr. Chief\'s appointment by making payment pursuant to that termination provision without giving any reason, that would. 00:18:52 Have been fine. 00:18:53 What was wrong in that case was that the employer basically make it so difficult, you know, for Mr. Cha that Mister Cha resigned. And then Mr. Chan. 00:19:02 And so, you know, fall and the the, the amounts that will receive, you know, in relation to that that termination provision which I\'ve just read out, OK. So that\'s basically a question 17. 00:19:16 Then question 16 in relation to termination. The question here is whether the May means that the employer has the option to dismiss without voters downgrade or suspend, right? So the short answer to this question is yes. 00:19:31 The employee has the option, you know, to either dismiss without notice, downgrade or suspend, but naturally you know whether the employer has a justifiable basis or grounds to do any of these things. Would still, you know. 00:19:44 Be an issue. 00:19:45 And you know, for sexual 14, one of the Employment Act during inquiry process is highly recommended, right? It is not a statutory requirement per say, but it is highly recommended because ultimately it would be for an employer to justify grounds for some reason dismissal with cause. Right. So due inquiry process can actually. 00:20:06 You know, help in discharging an employees that are not group. 00:20:10 So the section 14 one requirement for due inquiry. Highly recommended. 00:20:17 And then at least you know in the event of a challenge you can show that you know the new inquiry process that\'s recommended in section 41 is compliant with. 00:20:28 Moving on to the next question on termination. 00:20:32 I\'ll just wrap up two questions 1st and now. 00:20:33 I have a look. 00:20:34 At the Q&A so question 20, the question is. 00:20:40 When it comes to termination, the slide says that employer is not obliged to give any reason. 00:20:47 And then how then might an employee alleged that the termination is based on discrimination means? Must there be due inquiry? OK, so you can just read this. 00:20:57 Question quite a long one. 00:20:59 But the answer really here is that. 00:21:02 No due inquiry is needed. OK, where termination is pursuant to the employer\'s contractual rights to terminate, for example by giving notice or payment in lieu of notice. 00:21:15 However, if an employee can show that there was a reason right, there was some underlying reason, even though the employer had supported to just simply exercise the contractual right. 00:21:26 However, even employee can show that there was a reason and that the reason is wrongful. Then potentially the employee can bring an action under section 14. Two of the Employment Act. 00:21:38 So. 00:21:40 Generally, if you\'re accessing a contractual right to terminate by giving notice without assigning any reason, no problem, right? You don\'t have to give a reason. It is only if the employee can show that ohh there wasn\'t, you know, some underlying reason for determination and that it\'s not justified. Then potentially employee can bring an action under. 00:22:00 Section 14. Two, I\'m just going to pull out section 14 two and. 00:22:03 See if I can share that. 00:22:16 OK, so section 14, two again, just for ease of everybody\'s reference. 00:22:22 Is here. 00:22:24 So it says here that you know we\'re a relevant employee, considers that he has been dismissed without justice or excuse, then they may logically under section 13 of the. 00:22:34 Implementing claims act. 00:22:36 OK. 00:22:37 So I\'m just going to stop sharing walls and put back the Q&A. 00:22:54 OK. 00:22:58 So that was question 20 that was that was being answered, Kaden, 24. 00:23:07 Again on termination. 00:23:10 I\'ll just leave everybody couple of seconds to just read this. 00:23:17 Is in reference to video Lecture 2 where it\'s mentioned that. 00:23:23 There, you know well, there\'s no established procedure under the common law for new inquiry in accordance with the rules of natural justice is. 00:23:29 Likely that the same. 00:23:30 Will apply for dismissal for misconduct outside the Employment Act. 00:23:34 The question is whether you know the term outside and from the neck is correct, so the answer is it is correct, right? So outside the Employment Act is correct dismissal for misconduct outside the Employment Act is simply, you know, a case it\'s, you know, it\'s simply any case for dismissal for misconduct where dismissal is not pursuant to one of the provisions under the. 00:23:55 Employment act. 00:23:56 So there are obviously, you know, common law principles built around dismissal and summary dismissal. 00:24:03 And so outside the Employment Act in this contract. 00:24:06 Is is correct? 00:24:09 OK, I\'m going to turn to the issue of misconduct and breach and the questions around that. There are a few of them. And before I do that, just give me a moment. I\'ll just look at the questions, the Q&A 1st and see whether. 00:24:20 There\'s any relation to this topic? 00:24:29 Give me a moment. 00:24:47 There is a question in the Q&E. 00:24:52 In relation to the retirement and reappointment exemption notifications that I mentioned earlier on and it\'s a clarification question, right? 00:24:59 So in relation to that question, just to repeat again, it is section 41 and four, two of the retirement and reemployment exemption notification. 00:25:12 2011 OK, as amended in 2022. 00:25:16 Pages that we\'ve seen. 00:25:32 OK, those are retrenchment again. 00:25:38 There\'s a clarification. You know whether section 45 only applies employees falling within Part 4, the Employment Act? The answer is yes. And then, if so, what provisions govern retrenchment of employees? We do not fall within section 45 of the. 00:25:49 Employment. 00:25:49 Act so as I mentioned earlier on, you know retrenchment benefits under Singapore law is a matter of contract. 00:25:55 So for those who don\'t fall within section 45, then you know it\'s just whatever that\'s provided in the point, correct. So there are no statutory. 00:26:04 There are no statutory. 00:26:07 Obligations on the part of an employer to make retrenchment benefits right? It is a question of contract, but you know, as I said, there are tripartite guidelines, you know, in relation to. 00:26:19 Giving so then. 00:26:20 Recommendations to employers to consider in relation to retrenchment? OK, but there\'s no statutory obligation per say, to pay retrenchment benefits. It will be determined by the contract. 00:26:34 Of the sea. 00:26:38 So there\'s a question about retrenchment, which I\'ve answered. 00:26:46 On termination is a question can contractual right to terminate without notice be excluded? 00:26:51 By an express term in the employment contract. 00:26:59 There would usually be a contractual right to terminate. 00:27:05 We\'ve noticed. 00:27:08 Can contractual right to terminate without notice fixed? 00:27:12 OK, so I\'m not sure what the question is here, but generally unless it is a fixed term contract right? So unless the employment contract is a fixed term contract. 00:27:23 And there\'s no provision for termination without notice then. 00:27:29 If an employer wants to terminate a fixed term contract, the employee is really, you know, entitled to whatever is remaining for the fixed term. 00:27:37 So in the event that a contract an employment contract not being a fixed contract does not provide any notice provisions, then the Employment Act. 00:27:49 Default notice provisions would apply, so you you you can\'t really have a non fixed term contract that cannot. That\'s not permittable by by notice. If if I can answer that normally. If you want to terminate without notice and it\'s not a fixed contract, you can pay in lieu of notice anyway to terminate without notice as long as payment. 00:28:10 You know, this is me. 00:28:13 OK, so I\'ll leave the Q&A for now and go back to the questions which we have received. 00:28:21 And the next, the next set of questions that I\'ll deal with is in relation to misconduct and breach, and that may then address some of the questions in the Q&A. 00:28:29 Which I have solved. 00:28:29 Look to quite quickly as well. 00:28:33 So I will deal with. 00:28:34 Misconduct and breach right in a series. 00:28:40 In a series of. 00:28:43 Or just listen, just idea. 00:28:46 Alright. 00:28:58 OK, so the next set of questions that I\'ll deal with on misconduct in bridge, right, is I\'ll just show the questions quickly. But the answer is fairly similar. 00:29:07 Right, for all of them. 00:29:09 So the first so is questions 4. 00:29:12 And five, first, you put it on the screen, you can have a read through it. 00:29:21 So read 4:00 and 5:00. 00:29:36 OK. And and the questions around you know the provisions in the Employment Act for termination for you know willful breach or you know for misconduct and how it sort of interacts, you know, with the common law? 00:29:51 Fundamental. 00:29:52 And repeating which OK. 00:29:54 So this is. 00:29:54 4:00 and 5:00 and then the next one is. 00:29:58 UM. 00:30:00 Brought in, which I\'ll show in the stream as well. So 14 is here. The difference between serious misconduct and misconduct. 00:30:08 And then you know the question about section 14, one as well. 00:30:14 Again, you know what? How does it relate to common law regulatory breach? Because I\'m really dismissal and then 15. 00:30:24 Whether the termination for breach of condition of service overlaps with 3D of RDC concrete. 00:30:33 And then the last one, which I\'ll show before I I answer all these together, OK, maybe I\'ll just deal with these first, right. So again the question is 4 or 514 and 15 around the provisions under EA and then how that sort of you know what\'s the cross section between that and the common law principles. So I\'ll give everybody. 00:30:53 You know. 00:30:55 An overview by way of background. Right. So by way of background, the Employment Act 1968 right was only amended in 2019 to cover all employees, right? So say for the part 4 employees. 00:31:09 And before that, you know, before that amendment managers and executives earning above 4500 a month were actually not covered by the Employment Act. 00:31:20 And for termination of these managers and executives, the common law principles would then be the sole regime coming through emissions. 00:31:27 So. 00:31:28 Against that contracts, yes, you know there are potential overlap between the various sections relating to termination, right? So for example 11 who in relation to willful breach. 00:31:40 And misconduct under section 14, right. So there are there is potential overlap in these sections and the common law concepts of repudiatory and fundamental breach of and misconduct. 00:31:52 And the common law, right? So under common law you need for termination. For cause we will say that well, the three potential grounds for termination for cause under common law would be misconduct. 00:32:05 Incompetence. Disobedient of a of a lawful order. So those are the common law concepts. But you will see that many of these common law concepts you know, are are also, you know, would also overlap with some of the EA provisions like also breach of a condition or misconduct in under section under section 14 one. 00:32:26 And you know, for successfully 11/2, for example, right, willful has been defined to mean like intentional or deliberate breaches or immune. Also cover recklessness again. You know it will overlap with concepts of misconduct as well as fundamental or regulatory breach. 00:32:44 So the issue of which sections of common law regimes would apply would then, you know, depend on the facts of the case. But it is possible for an employer to rely on both. You know, the EA provisions for termination as well as common law principles for termination and vice versa as well right for the employees to do so. 00:33:04 So I I would say you know for the for the group, you don\'t really need to sort of worry about you know the the the different concepts per say as long as you know that there are provisions you know in the EA relating to the rights of termination of parties in the event of. 00:33:23 Misconduct of breach and you know, there are also common law principles which will supplement that. So as I said, I mean the reason why there is an overlap is because in the past for managers and executives earning 4005 and you can imagine that, you know, in Singapore contacts, many employees will be out of the Employment Act. You know, in this, the common law principles which will govern. 00:33:43 Information, and therefore you know there, there there is. 00:33:49 OK. So that would deal with, you know, this set of questions and some of the questions that are in the. 00:33:54 Q&A as. 00:33:55 Well, before I go to. 00:33:57 The Q&A questions I just want to deal with two more topics, so one on. 00:34:03 Dismissal and one undoing query also related to you know the broad topic of misconduct and breach. So I will show question 27, which I will just do quite quickly with. 00:34:15 So 27 right. So again, related to what the difference between full material which are replacing which which I\'ve really sort of address. 00:34:23 But I wanted to address this part of it. What is the difference between? 00:34:26 Termination and dismissal, right? 00:34:29 So I just want to remind everybody or just put a a pin there that dismissed, right. So the term dismissed is actually defined in the Employment Act under Section 2 of the Employment Act to mean it basically means to terminate the contract of service between an employer and an employee at the employers initiative. 00:34:50 With or without notice and for cause or otherwise. OK, so just bear in mind that this means under the appointment is white. It covers basically with or without notice for cause or otherwise, and it also includes the situation of constructive dismissal, right? So it also includes the vaccination of an employee if the employee can show that the employee. 00:35:10 Did not resign voluntarily. 00:35:13 So summary dismissal. So in the context so dismissed, as I said under the Employment Act covers all all forms of of termination, right? 00:35:22 And some mean dismissal generally refers, as I mentioned earlier on to dismissal for cause. 00:35:28 So contractual termination can be needed. So just address here, right? So just to get terminology right, summary dismissal generally refers to termination for cause you know without notice without pay, contractual termination. 00:35:44 Which refers to those without cause, but you\'re relying on a contractual provision to terminate. For example, notice or even in lieu of. Notice can be immediate if you know an employee or employer pays in your notice. OK, so just to get the terminology. 00:36:04 Right here. Wrongful termination. Wrongful dismissal. 00:36:07 Germany. Inhumans. You know the same thing? 00:36:12 UM. 00:36:14 So now dealing with new inquiry, right. So again, a set of questions, 29 first. 00:36:24 So you see. 00:36:25 Here 29 whether it\'s possible for employment contract to be terminated for willful breach and you know under section whether there\'s a need to conduct duo inquiry. 00:36:35 Given that you inquiry is not provided, OK. 00:36:38 Then 31. 00:36:43 Again around you. It is a very long question. I\'ll just leave everybody to just read this. 00:36:56 And then finally, question 30 as well, right? You know whether during inquiry is only required for this product, OK. So just dealing with when you inquiry is required, right? So for section 13, right, where there\'s a Dean breach, there is no need for doing query. OK. So for section 13, no. 00:37:17 But generally for the other ones where you know you\'re relying with employees relying on on some form of a misconduct or a willful breach. 00:37:27 Then the general rule is that new inquiry is recommended, but again it is not mandatory, it is recommended. 00:37:35 Because the burden of proof to show browser this summary dismissal right or termination for cause, whether under the EA or a common law, is upon the employer. So in the event that an employer. 00:37:49 Dismisses summarily and employee for cause. If the employee challenges, then the the burden is on the employer to to store that the sufficient clause, sufficient cost, or sufficient grounds for termination. 00:38:07 And in that context, therefore, you know, a due inquiry is recommended. 00:38:12 Because the during preprocess allows the. 00:38:40 King to terminate for cause or you know for for for any form of of breach or regulatory breach. 00:38:49 OK, so I\'m going to before I deal with the minimum obligation rule and the questions on that. I\'ll go back to have. 00:39:48 Not this. Provisions in the Employment Act, but generally I would say. 00:39:53 In all you know, or rather in most of the cases that we have seen, the employment contract does provide for termination by notice or payment in lieu of notice without. 00:40:16 Just taking a moment, I\'ve already answered the implication of terms question. 00:40:20 Students can. 00:40:25 And. 00:40:27 Also answer the conjecture. Right terminate. You don\'t know this, so that\'s done spell. 00:40:36 OK. I\'ll just. 00:40:37 Want the due inquiry questions? Right? So there\'s a question about somebody who\'s being confused about new inquiry. Is it only done when employee can show underlying reason for termination is wrongful and no. So you inquiry, as I mentioned you know is mentioned in Section 4. 00:40:54 Team one of the employment back and it says that. 00:40:57 That an employer may. 00:41:01 An employer may. 00:41:04 Just didn\'t get. 00:41:05 The rights actually. So he says that an employer may, after due inquiry, dismissed without notice an employee employee. 00:41:11 By the employer on grounds of misconduct. So the due inquiry is a recommended process where an employer wishes to terminate an employee for misconduct, you know, but as I said, you know, if you are, if an employee is seeking to terminate for willful bridge or anything that like we bridge or fundamental. 00:41:30 Reach then. 00:41:32 Generally, a new inquiry is recommended. OK. 00:41:36 And is typically done by the employer. So doing great is done by the employer, not done by the employee. 00:41:51 OK, so there\'s a question here which I think you know I do want to repeat my what I\'ve just said earlier on right. And the question is this, it says that would you say conducting view inquiry? 00:42:02 Is advisable if the reason for termination is misconduct. 00:42:06 OK. Because of section 14, two of the employee like this is even if they follow the terms of contract for termination. I mean if one must notice instead of something dismissal. 00:42:17 OK, so I repeat this again, right? So generally if? 00:42:22 And employer is seeking to terminate for misconduct or willful breach or anything like for cause. OK, if you\'re intending to terminate for cause. 00:42:31 And the employer does not wish to give notice or pay submarine view of notice. 00:42:37 Then due inquiry is advisable. 00:42:41 OK. Because ultimately the employer will bear the burden of having to show that you know, there is sufficient grounds for dismissal without notice and without pay. 00:42:53 So but if an employer wishes to simply give notice contractual notice, rather than summarily dismissing somebody for cause. 00:43:03 Then the recommendation is that the employer should not seek to invoke some reason for termination and simply just give the notice without giving a reason. 00:43:14 And the short answer, I mean the the reason why that is the case is that once an employer. 00:43:21 Offers a reason. Then the employee can potentially bring an action, you know, say that, or rather, and then challenge the reason that\'s being given to say that the reason is either you know without just cause or excuse. OK, so just just bear that. That framework which I mentioned in my. 00:43:43 So the other thing I just want to mention in relation to 14.2 which I will bring up on the screen again, just show that so that everybody is clear, right. 00:43:52 Certain stuff the share bring nothing. 00:43:57 The A. 00:44:00 OK here so remember so 14.1 sorry not 14.114 one of the A is the one that is relation. 00:44:08 Due in query. 00:44:09 Right. And 14 two basically provides a relief where the employee considers that he or she has been business without. 00:44:17 Just cause or excuse? 00:44:19 And note that 14 two right applies to dismissal without just cause or excuse. Even if an employer has given. 00:44:28 Notice contractual notice or paid salary and not notice. 00:44:33 And then goes on the proper reason for termination. 00:44:36 Right, which is. 00:44:36 Why is it once you don\'t give a reason, then it\'s more difficult for the employee to bring an action under section 14. Two because the employee would then need to say, oh actually the reason is because of this and the and the employee would then need to show what you know are the circumstances. 00:44:54 Leads to the employee you know being able to say that, oh, the reason is because I\'m discriminated or something like that. OK, getting that. Want that? I want to mention about 14.214 two is that. 00:45:06 It is a. 00:45:06 Relief that is sought under the Claims Act, which means that. 00:45:11 The action would be limited by the quantum limit of an of the ACT claims, right? So it is 20,000 for each claim for wrongful dismissal or for a salary related claim. 00:45:27 So in that context, again, you know 14 two is limited to certain types of of things or other certain quantum limits of of claims, right. So it may not be available to all employees depending on how much they earn. 00:45:44 OK. 00:45:45 So just to clarify, 14 two. 00:45:47 So going back now to the questions. 00:46:00 OK, so being going back to the questions that were submitted, the next set of questions that I\'ll deal with. 00:46:10 Is in relation to. 00:46:13 OK. Just to make sure everybody can see the question right. 00:46:22 OK. 00:46:24 Since nobody has any violin. 00:46:26 Comments. I\'m assuming everybody can see the questions. OK, so the next set of questions that I\'ll I\'ll be dealing with would be in relation to the minimum obligation rule, right or remedies for raw food dismissal. 00:46:38 So the first set of questions are. 00:46:39 Deal with is 8. 00:46:46 Yeah. 00:46:48 Is a long. 00:46:49 Series of questions. I\'ll just give everybody a couple of seconds. 00:46:52 To just read. 00:46:53 It first and then I\'ll deal with each one in turns. 00:47:15 OK. 00:47:16 So dealing with the first one on remedies for offer dismissal where neither notice nor salary in lieu of notice was given. Does this mean damages would be the amount of salary payable in view of notice? The short answer to this is generally yes. 00:47:31 OK. But it would also depend on whether there are other potential heads or circumstances which may lead to additional damages, right? So for example. 00:47:38 If. 00:47:39 It is if it is contractually provided for, you know, in the employment contract or policies which are incorporated as part of the employment contract that. 00:47:50 The employer is obliged to carry through, you know, a congratulate disciplinary process, for example, before terminating. 00:47:58 The employment of the employee for cause, then it is possible for the employee to argue that you know he or she should be entitled to be paid a sum if presented the time we have taken for the proper contractual disciplinary processes to be carried out. 00:48:11 OK, but generally? 00:48:14 Where it is wrong for dismissal, the minimum obligation rule would apply to state that you know the damages would be the amount of salary that\'s payable in view of notice. If there\'s there are such provisions in the contract. 00:48:26 So the next part of this question is what if the employee is unable to get the job elsewhere as a result of wrongful dismissal due to the effect on this reputation? Does this constitute some other damage as a result termination? OK, so just repeating the obligation rule. So again, the minimum obligation rule would apply generally. 00:48:46 And you know, for those who are not familiar, the rule, the rule basically says that where an employee is wrongfully terminated as opposed to, you know, being dismissed for cause so as wrongly terminated the normal amount. 00:49:02 Of damages that he or she would be entitled. 00:49:04 To claim instead. 00:49:06 Which he or? 00:49:07 She will be able to earn under the employment contract for the period it would take for the employer to love you to read it so very briefly so typically. 00:49:15 If the easiest way for an employee to terminate the contract would be to give notice for termination then. 00:49:22 The amount that the employee will be another. 00:49:25 To get would. 00:49:26 Be the notice right and the amount that\'s paid in. 00:49:30 Lieu of notice. 00:49:32 So what the principles seeks? 00:49:34 To do is that it imposes a limit on the claim for damages. 00:49:37 For local termination. 00:49:40 To succeed right in claiming something else, the employee must show some other acts other than the act of termination, which causes additional damages. So if the terminate if, let\'s say the employer terminates and does nothing else other than the termination, then the employee would only be entitled, you know, under the. 00:50:00 Creation rule to get contractual notice if if the if that\'s part of the contract, right? But if let\'s say they employ you does something else like it will be employer. You know matches the employee round you know the office after terminating the employment you know or publishes some really defamatory notice. 00:50:20 And yes, you know the employee would be entitled to some other loss and damages and result, but of of course it will be subject to the usual, you know, causation and remoteness rules, OK. 00:50:31 The next question here is what if an employee was promptly dismissed because of discrimination? What? 00:50:35 Would it would be sought. 00:50:37 So firstly they apply. We got to show that the employee was terminated because of discrimination, but assuming right, assuming that the employer had eight salary in lieu of notice. 00:50:52 You know, given no reasons for termination and the employee to suspects that he was terminated, he or she was submitted for discrimination. Then it will be on the employee to show that that was in fact the reason and to show what additional loss you have suffered other than the contractual notice that the employee has already paid. And usually it\'s quite difficult to show that but. 00:51:12 Put a pin on it. OK, because the workplace fitness legislation, you know, has yet. 00:51:16 To be released. 00:51:17 And it is possible that the workplace patterns legislation in the context of discrimination could provide, you know, other forms of relief. OK, so just watch this space. But for now, the minimum obligation rule is to apply. 00:51:30 This is part of the question here in relation to injunction I. I assume that the question here is whether the employee can seek a reinstatement right rather than than injunction. 00:51:40 So reinstatement in Singapore is very rarely ordered. It is possible to seek as relief, but it is rarely ordered. I mean, the courts generally do. 00:51:51 Not. 00:51:52 You know. 00:51:54 Like to have or force people to work together is. 00:51:58 If you know there\'s a true breakdown in relationship, right, so the urine remedy would be damages so not reinstatement. 00:52:07 So the next question about the minimum obligation rule is question 18 on this so question 18 here. 00:52:16 Again, I\'ll just leave everybody you know, couple of seconds to read this. 00:52:22 And it\'s about the case of Alexander Proudfoot, right? 00:52:27 And the concept of mitigation. OK, so where Alexandra profits is by normal measure of damage. So the Alexandra profile basically right, that the normal measure of damage would be amount the employee would have earned until. 00:52:42 Being lawfully terminated less the amount he could have reasonably been expected to earn in other employment. 00:52:49 So the question. 00:52:50 Is whether it is necessary to subtract the amount that the employee could have potentially earned this. 00:52:56 This sentence in Alexandria powerful basically is the concept of mitigation, right that employees expect them to take reasonable steps to mitigate his or her loss, including by seeking alternative appointment. 00:53:09 So the issue here you know and how this this breaks off applies is whether the employee reasonably mitigated his or her laws. And OK, so usually I would say that if the notice period is not long, say it\'s one month or. 00:53:23 Two months, right? 00:53:24 Then it would not be reasonable to expect that the employee would have been able to seek alternative. 00:53:29 Right. So the the less the amount the employee could have reasonably earn another employment even applying the contacts, especially when this period is short? 00:53:41 But however, if the notice period is long, right? So let\'s say an employee has a very long this period. 00:53:46 Of, say, 12 months. 00:53:47 Then the analysis could be different then it is possible to say that, well, you know in the 12 months you could have found another position, right. But again, it is going to be a very fact intensive. 00:53:58 Analysis Try as to whether it would be reasonable to expect the employee to have found or deliver employment or comparable appointment in that 12 months. 00:54:09 The next question on minimum obligation rule is question 32. 00:54:15 Yeah. 00:54:16 How does the minimum obligation rule apply? 00:54:26 I\'m just going to do a quick time check, but it\'s OK good. 00:54:33 Sorry. 00:54:36 32. 00:54:37 So how does it mean obligation rule for damages operate right? And how is it calculated? 00:54:45 What does it mean by earlier state that employer can not be terminated? 00:54:48 OK, So what it means is that you know damages are to be assessed as if the employment contract had been brought to an end as soon as the employer could have not been permitted the contract. 00:55:00 So as I said, you know the relevant period for calculation for damages would. 00:55:06 Be from when the employee was wrongly dismissed to the earliest point that the employer could have probably only terminate the employment contract. So normally as I said, if the employment contract contains contractual provisions for termination by notice or payment in lieu of notice. 00:55:21 Then that will be the earliest point that employer could probably have terminated, either by letting their employee serve out the notice period or by payment in lieu of notice. 00:55:32 OK, so the. 00:55:36 You know the exception, not really exception, right? But as a counterexample to to, the notice period is, you know, as I mentioned earlier, if the employee is dismissed summarily from this from that, let\'s say, right and the and the company also failed to carry out a contractual dispute process, then potentially the court may consider you know what the employee could have earned. 00:55:58 During the contractual discovery process, because the earliest point in time which the employer could have terminated is basically take the time to to complete the contractual. This new process class, the process period, OK. But I would say it is quite uncommon for there to be contractual disciplinary processes. 00:56:19 In place, but you know it is a possibility. We has been considered in one of the cases as a possibility, but in that Singapore case, the court found that the the disciplinary processes were not contractually incorporated and therefore the period of time. 00:56:34 That the employer would have taken to complete the process, you know, may not be taken into account in calculating the amount that the employee would have to pay the employee under the minimum obligation rule. 00:56:48 OK. 00:56:49 So I want to turn to maternity benefits, but before I do that, I\'m just going to have a look at the Q&A again. 00:56:56 Any. 00:57:15 I\'m just going to look at the ones on on the minimum obligation rule first. OK, I know there are some on different topics which I\'ll deal with the. 00:57:24 Yeah, sort of. The question between there\'s a very general question on distinguishing between a contract of service and a contract for service. 00:57:32 So just bear in mind that contract for service usually relates to independent contractor. OK, it\'s not an employee relationship. 00:57:42 So. 00:57:43 How is 1 drafted so they are entirely different. The contract for service, as I said, is typically where you\'re contracting somebody to do something and it\'s not, you know, a contract of service which is which is an employment contract. 00:57:56 OK. 00:58:01 OK, the question is a question about whether fixed contract and whether you can terminate a fixed contract at. 00:58:05 Will. 00:58:06 The short answer is you. If it\'s a fake, is it? If it\'s a true fixed contract and there are no provisions in the fixed term contract which allows for a premature termination of fixed term contract, then you can\'t terminate the fixed term contract. 00:58:21 Right. You OK? No need a minute. 00:58:22 If there\'s a breach. 00:58:38 OK, there is a question about whether under common law, the reason for summary dismissal would not be misconduct. 00:58:46 I think the question is so, so misconduct. 00:58:49 OK. 00:58:50 Let me rephrase that right. So under common law you can terminate, you know, for misconduct. As I said, you know for disobedience for incompetence or for reperatory or fundamental breach. OK. So the reason for summary dismissal for cause, yes, may not be only misconduct. It can be a variety. 00:59:11 Or reasons and this conduct is one of them. 00:59:22 So summary dismissal under section 14 one requires due inquiry. Yes, it is highly recommended that you do due inquiry if you are porting to some some rarity, dismiss somebody under sexual 14-1. 00:59:33 It is not mandatory. Is is a recommended procedure, but I would say. 00:59:38 Many employers, they do go through due inquiry if they are purporting to summarily dismiss somebody under section 14 one. 00:59:53 And a lot of employees also, you know, do challenge if there\'s no during query carried out. So as I said, it\'s highly recommended that during query be be conducted. 01:00:03 UM. 01:00:08 Bridge has been seen. 01:00:12 OK, I\'ll try to read read out the questions. 01:00:18 I. OK, so there was a, there was a comment here about whether is it possible for us to? 01:00:23 Read out the questions. 01:00:28 OK, I\'m assuming that the comment is about about the questions in the Q&A. Uh, OK. All right. I\'ll read out questions in Q. And yet before I answer the question. 01:00:46 OK, so there\'s a question here whether I could explain again the differences between willful reach, fundamental breach and material breach. OK. 01:00:56 And. 01:00:57 So. 01:00:59 Willful breach is basically the the the term that is used in the apartment act right at section 11. 01:01:08 And that is different from and that could be different from fundamental breach and material breach, which are common law concepts. But there could be an overlap. OK, so, so there are differences because there are different concepts for termination, but there could be overlap. So a willful breach for purposes of section 11, two of the E. 01:01:30 Good. If it\'s sufficiently serious, we also a fundamental breach. OK, so that\'s the answer to that question. 01:01:41 OK, so there\'s a question here whether I could confirm that there are no legal repercussions if an employee terminates his employment by giving. 01:01:52 Notice and gives a false reason employee right? So. 01:01:56 The question is whether you know there OK. Whether I confirm that there are no legal repercussions if an employee terminates his employment by giving notice and gives a false reason. 01:02:07 So an employee can terminate his employment contract by giving notice and he can give a false reason. No issue. The only issue is if. 01:02:15 If let\'s say. 01:02:17 There are, you know, non compete provisions, you know, in the in in the contract and the employee gives a false reason and then subsequently starts employment with a competitor in breach of the non compete and there could be an. 01:02:29 Issue. 01:02:29 There, but generally from an employees perspective, yes, there\'s no repercussion if they give some you know. 01:02:35 Useful for commuting the employment contract. 01:02:40 If you know, then play just the Portuguese. The I mean give gives notice. 01:02:47 Umm. 01:02:52 OK, there\'s a. 01:02:54 Comment about whether I could repeat. 01:02:58 The point or quantum of claims? 01:03:01 Yeah, I\'m not sure which point it was. 01:03:05 I\'m going to assume that it is in relation to. 01:03:13 The calculation for the minimum obligation rules. 01:03:16 Oh, sorry. Minimum obligation rule. Right. OK, so I\'m just going to repeat what I said earlier on. 01:03:22 So I think that was a question earlier on as to how the minimum obligation rule for damages for rocket dismissal operate and how is it calculated. 01:03:31 Right. So generally damages are to be assessed as if the employment contract had been brought to an end as soon as the employer could have lawfully terminated the contract. 01:03:43 So what it means is that the relevant period for calculation and damages would be from when the employee was roughly dismissed to the earliest point of time that the employer could have properly or legally permitted the employment contract. And generally, if development contract provides for notice, then the earliest that the employer could have terminated would be to give notice. 01:04:04 Or make payment in the of notice. 01:04:07 OK. 01:04:18 Yeah, I\'m just going to see. 01:04:27 OK, so that is a question. 01:04:37 Here about whether I could summarize one more time the minimum obligation rule with regards to disciplinary proceedings, right? So as I mentioned earlier on, you know, in relation to the earlier state that the employer can lawfully terminate. 01:04:50 So the question is, could I summarize one more time the minimum obligation rule with regards to disciplinary proceedings, as I mentioned for question 32? 01:04:58 So what I mentioned earlier on is that. 01:05:02 If the contract provides for contractual notice or payment in lieu of notice, then the earliest time would be whatever the contractual notice is, but there are still cases where employment contract actually incorporates contractual disciplinary processes where it says, for example, that before. 01:05:23 An employee can be terminated for cause or dismiss some relations for cause. 01:05:29 Certain contractual between processes have got big place like the employees got to call for extreme moving and all that. So where search and disciplinary process is contractually provided for. 01:05:41 And the employee is terminated, you know on disciplinary grounds. Then it is open to the employee to say that the earliest time that the employee could have been terminated would be for the employer to carry through the screening process and then give notice thereafter. 01:06:00 So that\'s what I mean by. 01:06:02 By, you know, contractual St. processors and how that, you know could change. What is the earliest time that the employer could lawfully terminate? OK. But as I mentioned earlier on, it is not common for premium processors to be contractually. 01:06:20 Provided for as a requirement under the employment contract. OK. 01:06:24 So that\'s done. 01:06:27 There\'s a question whether the minimum obligation rule of Alexander Proudfoot is covered in slides. 01:06:33 And whether you need to know about new obligation rule, OK, so I cannot remember whether I whether the the case was specifically cited, but you don\'t need to know the minimum obligation rule and the new obligation rule you know is so covered in. 01:06:48 In the material I just cannot remember what did the case of Alexander especially mentioned in the slides. 01:06:58 OK, there\'s a question there. You know where I mentioned section 14, two is limited to you know where the quantum of the C ECT claim is limited TO20K. 01:07:08 And which section is that OK so. 01:07:11 And I will just show because this is this is important. I just want to show section. 01:07:16 Of Team 2 again. 01:07:21 You just left. 01:07:22 Stop this shell. 01:07:27 Section 14. Two right, so section. 01:07:31 OK. 01:07:32 So you will. 01:07:32 See here that section 14. Two relates to a potential plane where an employee considers that he or she has been discussed without. 01:07:41 Just cause or excuse, right? 01:07:43 And it says that the claim. 01:07:46 Must be brought. 01:07:48 Or maybe brought under section 13 of that act, which is the Employment Claims Act 2016. OK, so the quantum threshold that I mentioned, which is \$20,000. 01:08:00 For ECT claim right is actually the jurisdictional limit under the upcoming Claims Act of 2016 for the Employment Claims Tribunal in relation to a wrongful termination claim or wrongful dismissal claim. OK, so under the ECT under the Employment Claims Act. 01:08:20 The ECT can hear claims of up to \$20,000 for a summary dismissal claim or recombination claim, or for dismissal claim, and then \$20,000 for a salary related claim. 01:08:35 Unless you know the the claim is Union assisted in which in which case the claims will be raised to \$30,000 for each of those claims. 01:08:45 That I mentioned. 01:08:47 So the provision actually is not in section 14 two, but it is basically linked to the jurisdictional limit, the jurisdictional limits of the ECT under the Employment Claims Act of 2016. OK. So I repeat again, it\'s \$20,000 for each of the claims. 01:09:02 Offer often termination claim or salary claim, so \$20,000 each potentially. Audio file ========== [Your Recording 119.wavTranscript00:00:03See, an employee can bring up to \$40,000, but if it\'s Union assisted, then it\'s \$30,000 for each claim, which means that an employee can bring up to \$60,000, assuming that employee brings both termination claim and the salary related claim. And I can say that you know from experience, employees tend to try to maximize how much the claim amount is.00:00:23What the secrets?00:00:25OK.00:00:27Stop sharing beers. Falling back to the questions.00:00:31OK, so the Q&A so that that\'s.00:00:33The answer for the Q&A question.00:00:56Scroll through very quickly the questions.00:01:04OK, so the exam related questions, as I mentioned, we will. SLU will check it out separately, OK. So I will not answer those here. Just you know just of time.00:01:27There\'s another question on minimal obligation rule, right, which I\'ll answer lie.00:01:32And the question is, so this is on the Q&A chat, I don\'t really get the minimum obligation rule in terms of calculation. So when you try to calculate salary employee.00:01:41It would have been would have earned between the time he was wrongly dismissed and the earliest time the employer can terminate.00:01:48Is it only if the employer gives reason to terminate? But if dismissal for cause the answer?00:01:53Would be 0 OK.00:01:57No, it\'s not that. If this is for cause and 0 would be 0. So what typically happens for the minimum obligation rule calculation is this. If the employer dismisses an employee for cause, then the employee, then an employee would have necessary paid 0 right? Because I\'m saying that I don\'t have to pay anything because you you behave.00:02:16Pretty badly.00:02:18So if assuming.00:02:21The employees found to be wrong, IE the employer employee didn\'t behave badly and the employer is not entitled to terminate for cause.00:02:31Then in terms of calculating the damages.00:02:36It would be referable to the earliest time the employer could have terminated, assuming.00:02:44That there was no cost to terminate the employees employment and that would typically equate to.00:02:50The notice period.00:02:52OK, so that\'s how the minimum obligation rule applies.00:02:57OK, so going back.00:02:59To the questions which were submitted covering maternity.00:03:02Benefits first, OK.00:03:07So maternity benefits. Their three questions on on that were submitted. So it\'s question 3.00:03:25So the question is the question 3 on.00:03:27The.00:03:29On the list, may I clarify what does termination without supreme courts under section 84 of the Employment Act entails? Does it mean termination without giving a reason?00:03:38So combination without sufficient cause, right? So termination without giving a reason is just one of the instance of without sufficient cause. OK, so it there was a case recently.00:03:54Where the court considered the tripartite guidelines on wrongful dismissal in determining if there was sufficient cause for dismissal of a pregnant employee.00:04:03So while you know the court did note that each case must be decided on its facts, but it did hold that certain circumstances would not constitute sufficient cause. OK.00:04:15And these included relying on a contractual notice period by all paying salary and view of notice there wouldn\'t be sufficient cause for section 84. Retrenchment wouldn\'t be sufficient costs under.00:04:27Wouldn\'t be sufficient cause under 84 dismissal without notice for misconduct?00:04:33Again, not sufficient cause.00:04:37This is shown due to discrimination would not be and then dismissal as a punishment for extending an employment right also wouldn\'t be sufficient cause OK.00:04:44So section 84, without sufficient cost basically is any termination that you know is just really seen as a mechanism for avoiding pain maternity benefits. If I can sort summarizing that that way.00:05:00OK. So number six is an expression that I\'ll be dealing with. So again, give me a couple of seconds to read that.00:05:10So I\'m not sure.00:05:13I\'m not sure about the question here, but I just want to clarify right that.00:05:18That section 12 of the CDs, a CD CSA basically is a provision that says that certain provisions of the Employment Act would similarly apply.00:05:29Under the CDC, yes. OK. So basically sections 8184 and 84 a that\'s mentioned in this question apply to employees that fall under the CDC SA in the same way that they would apply to employees following under the Employment Act. OK.00:05:50So just to clarify, the sections that I.00:05:52Mentioned in this question.00:05:54The next question of.00:05:55Maternity benefits is question 19, which I.00:05:58Will scroll, you know.00:06:00In 19, this is the one.00:06:07About the absolute prohibition on dismissing an employee. Emergency leave, OK.00:06:13So the short answer to this is.00:06:15That section 18 one right doesn\'t have.00:06:20Exceptions to it. Right. So section 88081 of the EPA appears to be an absolute bar.00:06:27Just from the plain reading of the statute, OK.00:06:31And termination.00:06:33For misconduct.00:06:37OK so.00:06:39It doesn\'t have any exception right? But you.00:06:41Know, of course.00:06:43I think it would sort of depend on on the cases right where where the employee is guilty of misconduct or or not.00:06:51But I would say that once an employee goes on maternity leave.00:06:56It\'s an absolute prohibition of dismissal, regardless of whatever the grounds are, OK.00:07:01No. Next question here is is that is the way for the employee to get around this to just commit the pregnant employee earlier, OK.00:07:09Yes, yes it is possible to get around it, but bearing in mind that the section section 84.00:07:1884 right on the Employment Act.00:07:23Would be if you can find sufficient cause, right? So you cannot. You cannot just terminate an employee pregnant employee before the employee goes on the OK B for any reason whatsoever you need.00:07:33To have sufficient costs.00:07:35And and generally yes, if you can show that there is misconduct, OK.00:07:39Then you can terminate a pregnant employee before the employee use of the 10DB. But I would say that the bar is is is very high and you know you\'re bound to be challenged that the true reason for terminating is just to get around not paying the benefits.00:07:56OK, so that those are the three questions that are submitted in advance. I\'m just going to go to the Q&A now. Just the chat, just to see if that\'s in a big question.00:08:09There\'s a question of what do you need to know the exact exactly pay entitlements employee receive under the ECB? CSA. Not exact. I think just wrapping me to know what the what, the benefits, what the, what the provisions are and you and whatever is you just need to look at the slides right. If it\'s not in.00:08:25The slides. Then you don\'t need to know the exact calculations.00:08:29So the question.00:08:30Is do we need to know the exactly pay entitlement employees receive under the EA or CCS pay?00:08:45The question there\'s a question about whether you need to know the applicable CPF rates for purposes of your exam. You know, if it\'s not covered in the slides, you don\'t need to know that.00:08:59So another general question, do we need to know the tripartite guidelines and details? Yes for the ones which are mentioned in the in the slides.00:09:06We do need to know them.00:09:18OK. A question of maternity benefit, I\'ll read it out. Can I confirm as mentioned in the lectures that there is an absolute bargain dismissal during maternity.00:09:27Regardless of whether there is misconduct performance? If so, then what should the employer do when there is a misconduct of performance issue?00:09:35So as I just mentioned, yes there is an absolute bar to dismissal during maternity leave. OK, not not, not just maternity, but once the employer goes on maternity leave, there\'s an absolute bar to dismissal.00:09:49Regards of whether there\'s misconduct or performance. So what should an employer do if there\'s misconduct performance issues? It should be only dealt with when the employee comes back from the utility.00:09:59OK, so that\'s.00:10:00The time that you deal with it when the employee comes back from maternity leave.00:10:11Yeah, I\'m just wondering.00:10:39Uh.00:10:44OK, there\'s a claim for there\'s a there\'s a question about Ed claims or ECG claims. Does employer or employee bring the claim ECT claims under the Employment Claims Act is brought by the employee.00:11:06OK, there\'s a question here about how does the Employment Claims Act work with the Employment Act? OK, so the Employment Claims Act.00:11:16Is the provision where.00:11:18Claims can be brought to the ECT.00:11:21For certain types of claims, right? So as I mentioned broadly, there are claims for wrongful dismissal, wrongful termination, or or you know termination related claims. And there are the salary related claims. So how does it work? The Employment Act is that you know, if there are claims.00:11:42Generated claims flowing from the Employment Act and those can be brought to the ECT under that Obama claims act and then as you can see earlier on right Section 42, which I\'ve shown a few times, you know permits and employee who considers himself or herself to be dismissed without just cause of excuse to bring a claims under their employment.00:12:02Respect.00:12:05And.00:12:12OK. The question is if misconduct is found with respect to that pregnant employee, can the employer recover paid salaries during maternity leave?00:12:23Short answer is no. So the employer cannot pay recovered paid salaries during the maternity leave. OK, so if you find misconduct.00:12:33Then you would need to necessarily terminate after the employee comes back from modernity leave unless you find out before that.00:12:42And then the loss of the employer would be depending on what their employer, what their employee has done OK in relation to.00:12:50For the misconduct.00:13:00OK.00:13:01Yes, I\'m. I\'m interesting comments on Kenny. OK, now I\'ll go back to the to the questions on the sheet now covering trade unions.00:13:14And I do have a a part about Employment Claims Act that would that might cover some of the questions that are, you know on the Q&A chat, OK. But just covering trade unions very, very quickly.00:13:2711 Right, which is that Union inspection 11?00:13:35In what circumstances? So the question here is 11, I\'m going to answer 11 now. So an employee right is free to, you know, join a trade union. Now as we do an NQC or whatever it is, right? But for purposes of the Industrial Relations Act, right, for an A trade union to be entitled to collectively bargain.00:13:54For employees, the trade union needs.00:13:59To be recognized by the employer, right?00:14:01So in what circumstances would an employee be unionized? Well, an employee is, you know, probably unionized for because of collective bargaining purposes under the UI under the Industrial Relations Act, if the trade union is recognized by the employee for that.00:14:21Class of employees to collect the feedback and for that class of employees.00:14:27Somebody raised a hand.00:14:35Is anonymous. You have to say something.00:14:46I\'m muted.00:14:53OK, whoever the attendee is, maybe you just type your question and I\'ll try to answer it.00:15:01OK. So that\'s the trade union, the first trade union question.00:15:06The next one is.00:15:09Question 12 right are only government employees that truly barred from being a member of trade unions? What about executive employee as a conflict of interest may arise if they.00:15:18Are portraying this OK?00:15:19So Please note that you know there are exceptions that government employees cannot be members of trade union, so there are certain exemptions to that.00:15:29Under the trade unions government employees exemption notification 20/20/2022 but I wouldn\'t you know, I don\'t think you need to know in detail of those exemptions, but executive employees, you know, they are not bad per say from joining trade unions, but OK.00:15:47Trade unions, but there are limited purposes for which a trade union May.00:15:52Individually represent their employees.00:15:53OK, so there are certain exceptions to to executive employees.00:16:00And if executive employees are in certain classes, which may create a conflict of interest, then you know the trade union.00:16:09And not individually represent the employee as well. OK, so there is a is a double barrel thing, so number one for trade union to be able to individually represent an executive employee, the employee must be free of conflict right under those prescribed sections in the Industrial Relations Act.00:16:30And assuming the executive employee is conflict free.00:16:35There are also certain limited purposes for which the trade union may induce represent employees, so there are two sets of of rules there.00:16:45The next question.00:16:49Is is it correct to say that trade unions may represent individually and not as a class due to potential conflict of interest arising? So that\'s not entirely correct. So I\'m just answering the second part of the question. 13 on the on the screen.00:17:02So it\'s not entirely correct. So as I said, it\'s a double barrel, it\'s it\'s 2, two set of of criteria, right.00:17:09So an executive employee, can, you know, be individually represented by a general trade union.00:17:17By a trade union, but only for limited resources.00:17:20And an employer can object to the representation on grounds that you know by virtue of the function of the seat, you know executive, employee, or copy of interest applies. And those I mean those provisions are set out in Section 30A of the Industrial Relations Act.00:17:38The question doesn\'t there is a question here as to what matters. Can the notice of proposal cover and you know why are matters listed?00:17:48You know in.00:17:49The I extruded OK, so you don\'t need to know this for purposes of of the cause, OK.00:17:56OK, question 26.00:18:00Yeah.00:18:05Again, a long question. I\'ll just leave everybody.00:18:06Just read this first.00:18:19OK. Your questions on executive employees again, so the question about how do you different, I mean how how you so differentiated?00:18:27In this stage.00:18:28So unfortunately or fortunately, probably, unfortunately the Industrial Relations Act of 1960 does have a definition for executive employee OK, but it\'s not that helpful definition. So executive employee in the Industrial Relations Act is defined as an employee who is employed in a managerial.00:18:49All executive position by the employer. OK, so as is it there is a definition but it\'s not very helpful definition. So in this day and age, how do you differentiate? So generally managers are those who who are in a position where they may be in a team executive would be you know those who are not who are.00:19:10I\'m holding.00:19:13I would say sure thing. Does an executive position, right? So like a management position, you know that would be an executive.00:19:22But I said that the definition is not helpful, but at least that\'s a definition, right? So anybody who\'s employed in a managerial or executive position, but you know, just bear in mind that it\'s definitely not by salary.00:19:34It is really by virtue of the position or the function of the executive employee.00:19:40So again, as I mentioned earlier on, you know executive employer.00:19:46Employee can be represented by trade union, but only.00:19:49For limited verses, OK.00:19:52OK, so those covers the trade union questions I\'m going to deal with one question on.00:19:57The Employment Claims Act.00:19:59In this list, and then I\'ll go to the queue and check.00:20:08A question 7.00:20:11Is it correct to say?00:20:13Yeah, yeah.00:20:15Under the.00:20:17OK, you\'re at.00:20:32OK, so the answer to this is no. The ECT has limited jurisdiction. They cannot hear any, you know, contract dispute or any statutory dispute. So there are certain types of claims that the C team can hear under the Employment Claims Act.00:20:46So and these are set out. You know if you want to read it, the first and 3rd schedules. Right? So presently as I mentioned earlier on.00:20:53Salary related matters, contractual, statutory and then the next broad category would be wrongful dismissal disputes.00:21:03And then please also note that it is mandatory for parties to 1st go through mediation at the TDM before submitting a claim.00:21:11To the ECT.00:21:13And yes, certain time limits for filing a claim. So I\'ve mentioned earlier on as well. You know, there are certain quantum limits depending on whether.00:21:22The payment or the employee payment is union, assisted or not. OK, so those are the employment claims questions. I will go back to the chat.00:21:33Questions and I\'ll read them before I answer.00:21:36A bit. See some right about.00:21:48OK, there\'s a question about unions. And the question is for unionized employees. In the event that there is a clash between the EU, I assume you\'re referring to the Employment Act, not that employment, right? So assuming there\'s a clash between the Employment Act and the collective.00:22:03Women, does the Employment Act override the collective agreement?00:22:11It is very.00:22:11Uncommon for there to be a clash per se, right? So the collective agreement negotiated by the trade unions typically will provide terms consistent with the Employment Act or more favorable than the Employment Act.00:22:24OK, but yes, you know if let\'s say there is a clash in that the collective agreement for some reason provides you know for benefits which are less favorable than the EA or contributes the EA, then yeah, the collective given the terms of the collective before. But Lisa is very uncommon.00:22:44For the unions, negotiate.00:22:46A contract that is less.00:22:48Favorable than the employment debt.00:22:56Yeah, just let me have a look.00:23:13There\'s a question about whether this if there\'s a breach of section in one and 84, can that be claimed under the Institute? So it depends on, OK, the question is, what if it is a breach of section in one and 84, can that be claimed under the ECT?00:23:32So it depends on what the manifestation of that is, right? So if it\'s, let\'s say, a wrongful dismissal, if it\'s caused as a wrongful dismissal thing like you dismiss me.00:23:43Without.00:23:45You know, because just because I\'m pregnant and it\'s a wrongful dismissal claim, then yes, potentially get go under the ACT. So it depends on how that that claim is is is cast.00:24:00Uh.00:24:06OK, there\'s a there\'s a question here on the chat for me to answer for question six, OK, so.00:24:14I\'m just gonna your question 6 on the screen again. So there\'s a question.00:24:196.00:24:21So as I mentioned, I\'m not entirely sure what the question is asking for, but.00:24:26Well, what I answered earlier on was that for section 12 of the CSA basically preserves certain sections of the E to apply to employees under the CDC SA.00:24:37So I just wanted to say that in that question, the sections mentioned, which is sections 818484 A.00:24:45Would apply.00:24:47To employees that you know who fall under the CD SACD CSA in the same way that they would apply to employees falling under the employee net.00:24:56OK. So that was like that was answer that I gave.00:24:58Earlier on.00:25:14OK, maybe I will answer the last.00:25:17Question that I have for the.00:25:23For the course 1st and then I will go back and do a sweep of the remaining questions on the variety of topics.00:25:31And so the last question that I want to deal with that is from the outline or the questions that I submitted beforehand is on anti discrimination legislation, right? So.00:25:4328.00:25:52Yeah.00:25:54So I\'m going to answer the 28. Everybody just take a moment to read it, which is also related to the TV.00:26:13OK, so the recommendations right?00:26:17For the workplace, fence legislation is for there to go through compulsory mitigation and TDM, so that relates to the workplace fairness legislation, right? So.00:26:28The so you\'re right, you know that mediation with TDM is compulsory before, before it actually goes to the CT stage, right? You need to get a certification.00:26:39Before the eject will will hear the claim.00:26:43But the reason why the recommendation is also relevant is because workplace discrimination claims right. Unless it unless it\'s solved.00:26:52Of put under the guise of a wrongful dismissal claim, you know, it\'s not usually.00:26:57Hurt by the ACT.00:26:58But a pure.00:26:59Workplace discrimination claim, as opposed to a summary dismissal or wrongful dismissal claim you know didn\'t use. We brought before the ECT right? It was brought, you know, before Feb and then was far as a complaint to the mom and talked.00:27:13So the recommendation you know, as I said, is still relevant. You know, once the workplace finance legislation comes in into play.00:27:21And it\'s brought before the auspices of, you know, whichever the Tribune, I mean the, the, the ECT that you know, TDM, you know, will be a prerequisite to mitigation.00:27:30But, but you\'re right that generally it is compulsory to go through mediation before with the TDM before pursuing ECT 3 just at the moment.00:27:40You know, wrongful dismissal, wrongful discrimination claims. Sorry. Wrongful dismissal claims are not brought.00:27:46By the ACT.00:27:48Unless it is a wrongful dismissal claim.00:27:52Unless it\'s all wrapped with the rubber disposal clean.00:27:58OK. And and just to for completeness, I should just say that not all workplace discrimination claims are wrongful dismissal claims, because workplace discrimination claims could be, for example.00:28:08You know, I was discriminated in not getting a promotion, right? So it\'s not a dismissal issue or I was not given a salary review or a salary agreement because, you know, I was discriminated or that, you know, it was.00:28:19Only given to.00:28:21You know, non frightening even or something like that. So. So just bear in mind that workplace discrimination claims to be wider than just summary dismissal claims.00:28:30Our offer business, OK.00:28:34OK. So I\'ll just stop sharing because I\'ve covered all the questions.00:28:40Oh.00:28:42The questions are submitted so in the remaining time that we have.00:28:46I\'ll just look through the.00:28:47Questions that are in the chat right?00:28:55I think some of them are really unsafe.00:29:05OK, people who have raised their hands want to.00:29:11Unmute yourself and ask the question.00:29:17No.00:29:25OK. I\'ll just go through some of the questions. I do hit time.00:29:30OK. The first question that I answer is it possible for finding that that the person was an employee based on factors like control, despite contractual terms stipulating that the President was not an employee? Yes.00:29:43So this is a situation of efecto employment, right? So you may you may have a contract that says that that, that the person is a independent contractor, but if let\'s say all the, you know, control factors and all the other factors which points to a de facto employment I place then.00:30:02UM, the courts will find that the person is actually an employee and then there will come with, you know, all the employment obligations as an employer.00:30:12So that\'s the.00:30:14First question, at least on my list.00:30:25In a non fixed term, OK, the question is in a non fixed term contract if there is on.00:30:32Sorry.00:30:39OK, so the question is in a non fixed term contract. If there is an express term to dismiss.00:30:46OK, I would use the word dismiss, right? It\'s been loaded, so if there\'s an express term to terminate or notice or payment in lieu of notice, can an employer?00:30:56Terminate without cause OK.00:30:58Yes. So if there\'s an express term to terminate on notice of or in lieu of notice, then an employer.00:31:05Can terminate the contract without cause by just giving notice or payment of your notice and not give a reason.00:31:16OK, there\'s a question about something business. So just let me read it. So is is the question that says for summary dismissal you mentioned?00:31:21That if there has been a regulatory breach.00:31:31OK, I suspect this could be from the video away from video that I don\'t remember seeing it now. So the question is for summary dismissal. You mentioned that if there\'s been a regulatory breach, the ostensible reason for summary d