Employment (Amendment) Bill – Speech by Dennis Tan

(Delivered in Parliament on 20 November 2018)

Mr Deputy Speaker sir, I declare my interest as a lawyer who also advises on employment law matters and disputes in my practice.

PMETs to be included in the Act
It is good news that under this Bill, PMETs earning more than $4500 a month will be included in the Employment Act. Until now, our employment law has this anomaly whereby the basic law on employment matters for PMETs earning more than $4500 are not provided for in our statutes. Today’s amendments to include the basic employment rights of PMET in important areas such as pay, dismissal, leave, sick leave and hospitalization leave as well as employment related claims is a right step to take.

Definition of “dismiss”
The Bill proposes to introduce a new definition of the word “dismiss”. I have some concerns about the part of the definition beginning from (I quote) “…and includes the resignation of an employee if the employee can show on a balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of any conduct or omission, or course of conduct or omissions, engaged in by the employer”. I do understand and accept the intention to include the situation where an employee may be forced by circumstances created by an employer to resign. However, I do have a concern over the broad and vague wording of “any conduct or omission” or “course of conduct or omission” which I fear may create ambiguities and uncertainties and may give grounds for abuse by employees who may have left due to bad blood but who might not actually have been so forced to leave by their employers.

To work at least 6 months before one can lodge claim for wrongful dismissal at the Employment Claims Tribunal
The Bill proposes to provide the right for a relevant employee to lodge a claim at the Employment Claims Tribunal for wrongful dismissal. For someone who is employed in a managerial or an executive position, clause 3(b) of the Bill proposes to reduce the prior period of service from 12 to 6 months before a claim can be lodged to the Tribunal. May I ask the Minister why does the Government now think that 6 months is sufficient and why for example it should not be any less time e.g. 3 months which is a common duration for confirmation of employment?

Statutory definition of ‘manager’ or ‘executive’.
Mr Speaker, in light of the recent High Court decision in Hasan Shofiqul v China Civil (Singapore) Pte Ltd [2018] SGHC 128, would the Minister consider providing a clear statutory definition of what constitutes a ‘manager’ or an ‘executive’ in the Employment Act itself? Any interpretation published elsewhere including MOM guidelines is not binding in law in a similar way. It is clear from this case and also anecdotally that companies have tried to exploit the lack of a statutory definition to give inflated titles to fit the category of managers and executives when the reality of the job scope may be otherwise.

Wrongful dismissal to be heard in Employment Claims Tribunal
I note that the Bill is proposing to allow wrongful dismissal claim to be handled by the Employment Claims Tribunal under the Employment Claims Act. I welcome this move. In my speech at the debate during the Second Reading of the Employment Claims Bill in August 2016, I had proposed that (and I quote) “the Government should consider having one Tribunal that can hear all types of labour related employment disputes. This may also take away some cases from the courts. We can have a Tribunal that hears claims on employment claims, unfair dismissal and discrimination.” (unquote).

In my speech then, I noted that the then Employment Claims Bill only dealt with salary-related claims, not other type of claims or grievances related to work or workplace. I said that there was no specific tribunal to address issues of unfair dismissal or discrimination. I said that MOM had in previous years acknowledged that there are such cases. In January 2013, the then Acting Minister for Manpower, said that from 2007 to 2012, MOM received annually an average of 70 cases from female employees who felt they had been unfairly dismissed, out of which 70% involved pregnant women. I had said in my speech then that we should not overlook the issues of unfair dismissal or discrimination but that we should look to the examples of other first world countries like the UK which has been having an employment tribunal handling different types of claims.

I also pointed out that employment claims disputes are often mired in the context of contending allegations of breaches of employment contract. I also said the following (and I quote): “unfair dismissal or discrimination could well be part of the factual matrix in some of the cases. How would the tribunal handle submissions or evidence on such issues? It may well be unfair to parties in such cases for the appointed tribunals to just ignore arguments relating to, for example, unfair dismissal or discrimination.

It is naïve to pretend such scenarios will not happen and it may be an injustice to employees or employers if the tribunal were to disregard such issues or evidence completely.” (unquote).

As per my speech during the debate for the Second Reading of the Employment Claims Bill, I think the Employment Claims Bill should also hear claims on discrimination. Let me also cite an example of such discrimination where anecdotally some of us may have heard of not infrequently: a manager of a company preferring to recruit people of the same ethnic origin or nationality.

Limit of claims to $20,000 or $30,000
Under the Employment Claims Act, claims are limited to $20,000 or $30,000 for claimants who go through the Tripartite Mediation Framework or mediation assisted by their unions under the Industrial Relations Act. In the debate at the Second Reading of the Employment Claims Bill, I also said that (and I quote): “…we should set a higher minimum monetary limit for cases before the employment claims tribunal. A good indication of a minimum limit should be the median annual income so that employers are less likely to be able to delay a hearing before the tribunal, on the calculation that the employee may not have sufficient resources to pursue the case in the civil courts. Hence the claim limit should be raised beyond $20,000. Let it cover claims involving PMETs too and PMETs with higher income.” (unquote)

With today’s Amendment Bill, the Employment Act will cover PMETs earning a higher income. I also understand that the Employment Claims Tribunal is already hearing claims from PMETs. However it appears that the limits of $20,000 and $30,000 has not been raised yet. Would the Government consider raising the limits so that more disputes can be heard by the Tribunal?

Quality of case handling
Mr Speaker, in closing, let me touch briefly on the importance of the quality of case handling both at the Employment Claims Tribunal hearing and the mediation before such hearing.

I have previously spoken against the provision in Employment Claims Bill which allows the Tribunal not to be bound by rules of evidence in the conduct of any proceedings where I pointed out that the risks of a tribunal failing to consider relevant evidence or making its decision based on arguably wrongful evidence cannot be discounted and this affects the quality of justice. Naïve or lesser educated workers who may not know how best to protect themselves with written evidence of any agreement with their employers may be disadvantaged by such a system.

Employees have no right to have lawyers representing them at the Employment Claims Tribunal as the law does not allow representation by lawyers so this means that lay people may not be fully equipped to ensure that their legal rights are protected and appropriate arguments are made in their favour. At the same time, I believe that the law does not expressly prohibit companies from using their inhouse legal counsel, who is a fully qualified lawyer to represent them at such proceedings. This may not be fair to the employees. It is a possible loophole which the Government may wish to address. Perhaps it may be more appropriate to have a non-legally trained person to represent the employer.

Even with legal provisions which may set the Employment Claims Tribunal apart from say the State Courts in hearing its usual cases in the Magistrates and District Courts, the Employment Claims Tribunal should always apply the law as faithfully as it can so that both employers and employees alike will be treated fairly and in accordance with their position under the law. Similarly, each party’s legal position under the employment contract must also be fully recognised during the mediation process before that.

I remember a few years ago a client of mine received a complaint of wrongful dismissal lodged by an ex-employee with MOM. This was pre-Employment Claims Tribunal. The employee had a record of disciplinary issues which the employer was able to present to MOM. Notwithstanding the disciplinary case, the employer had properly terminated the employment contract according to the notice provision of her employment contract and she was paid according to what she was due to be paid under the employment contract. The employer could well have terminated the contract on disciplinary grounds which would have meant that she would have been paid less upon termination. However, contrary to the clear contractual provisions and despite the disciplinary breaches, the company was told by MOM to provide ex-gratia payment to the employee. I hope that such a case was a one-off and certainly, I believe that such experiences should not be allowed to happen under the new regime where claims for wrongful dismissal will be heard in the Employment Claims Tribunal, including any mediation process.

Mr Deputy Speaker sir, this Bill is a step in the right direction and notwithstanding the proposals and concerns I have raised, I support this Bill.