6 February, 2019
The Singapore Employment Act (EA) provides covered-employees with protection from wrongful dismissal. However, employers in Singapore have thus far not been provided with much official guidance on the concept of wrongful dismissal.
On 26 December 2018, the Ministry of Manpower (MOM) published on its website guidelines as to what constitutes wrongful dismissal. According to the MOM guidelines, the following are examples of a wrongful dismissal:
- Dismissal on discriminatory grounds;
- Dismissal to deprive an employee of benefits or entitlements;
- Dismissal to punish an employee for exercising a right.
Dismissal on discriminatory grounds
MOM considers a dismissal to be on discriminatory grounds if it is based on age, gender, disability, family responsibilities, nationality, pregnancy, race or religion. A plain reading of this raises the question of whether MOM intends for the grounds of discrimination mentioned in the guidelines to be exhaustive. It is unclear whether the MOM will recognise other grounds of discrimination apart from those mentioned. It would be safer and more prudent for employers not to treat those grounds of discrimination as exhaustive, particularly since Singapore does not have any anti-discrimination legislation which may serve to provide an exhaustive list of grounds of discrimination.
In that regard, it is interesting that MOM has considered dismissal on discriminatory grounds to constitute wrongful dismissal despite the fact that Singapore does not have any anti-discrimination legislation apart from Article 12 of the Singapore Constitution, which provides generally for the equal treatment of all Singapore citizens before the law.
In light of the absence of specific anti-discrimination legislation, there is some uncertainty as to what the MOM would consider to be discrimination for the purpose of wrongful dismissal.
For example, would the discrimination need to be direct discrimination (i.e., where the employee is treated differently and worse by the employer for certain reasons) or would indirect discrimination (i.e., where the employer implements a practice, policy or rule which applies to all employees in the same way but which has a different and worse effect on some employees than others, and is not reasonable in the circumstances) suffice? It appears that only the former would constitute wrongful dismissal, but it is impossible to say for certain at this stage.
Dismissal to deprive an employee of benefits or entitlements
In this regard, MOM has cited the specific example of a dismissal to deprive an employee of her maternity benefits. However, this category of dismissal appears sufficiently broad to encompass the deprivation of other types of benefits or entitlements. For example, there should be no reason a dismissal to deprive an employee of his paternity benefits would be treated differently from a dismissal to deprive an employee of maternity benefits. Other benefits such as retrenchment benefits or remuneration could conceivably also come under this category, though a question remains how far the protection would go – while statutory and contractual benefits would likely be included, would it be wrongful dismissal to terminate an employee's employment to avoid providing an entitlement set out in a policy?
Dismissal to punish an employee for exercising a right
The example provided by MOM here is the dismissal of an employee after the employee has submitted a mediation request to the Tripartite Alliance for Dispute Management for salary-related claims. This category of wrongful dismissal may conceivably also extend to employees who are dismissed for making a police report, or commencing a civil claim, in respect of workplace harassment or bullying. However, the inclusion of other forms of employee self-help measures such as employees internally reporting instances of harassment or bullying or whistleblowing is less certain. The use of the word "punish" does at least suggest that there must be a nexus between the relevant exercise of a right and a dismissal, such that an employee who has exercised such a right would not automatically attract some form of immunity from termination.
Looking to the future
The EA definition of wrongful dismissal is a dismissal made without "just cause or excuse". This has been widely understood to involve an inquiry into whether the complaint against the employee (whether performance or conduct based) was sufficiently serious so as to justify dismissal. In contrast, the MOM guidelines seem to suggest an expansion of the term, to include dismissals on specifically prohibited grounds. This is likely to lead to the increased importance of ascertaining the real or operative reason for an employee's dismissal.
The upcoming amendments to the EA which are to take effect by 1 April 2019 do not shed further light on what constitutes wrongful dismissal. Given that all private sector employees will be able to make a claim for wrongful dismissal once the amended EA takes effect, employers can reasonably expect that the MOM's guidelines on the matter will be further elaborated and supplemented, possibly by way of guidelines issued by the Tripartite Alliance for Fair & Progressive Employment Practices.
Given the potential seriousness of an allegation of wrongful dismissal, employers are advised to keep a close eye on developments in this space. If you would like more information or to discuss how you or your business may be affected, please contact the individuals below.
For further information, please contact:
George Cooper, Partner, Ashurst ADTLaw
george.cooper@ashurst.com
