(Delivered in Parliament on 16 August 2016)
Deputy speaker sir,
I declare my interest as a lawyer who does handle employment matters and disputes in the course of my work.
The proposed constitution of the Employment Claims Tribunal to decide on employment claims as proposed under this Employment Claims Bill is indeed a step in the right direction. I have a few concerns which I hope the Minister can address.
Narrow scope of claims covered under the Bill
First, I note that the Bill will only deal with salary-related claims, not other type of claims or grievances related to work or workplace. Deputy Speaker, sir, I also seek the Minister’s clarification whether the Ministry intend to set up similar tribunals to handle work place grievances such as unfair dismissal or discrimination. Currently there is no specific tribunal to address such issues. MOM has in previous years acknowledged that there are such cases. In January 2013, then-Acting Minister for Manpower, Mr Tan Chuan Jin, 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. We should not overlook the issues of unfair dismissal or discrimination. 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 for a long time now.
I would like to point out that employment claims disputes are often mired in the context of contending allegations of breaches of employment contract. 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.
Deputy Speaker, sir, instead of having different forums to hear different type of employment or labour related disputes, may I propose that 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. And I agree with my colleague, Mr Faisal Manap, that foreign domestic workers should be entitled to the use of the ECT. Yes, such cases can be included in an enlarged Tribunal.
By way of example, the Employment Tribunal in UK hears claims from employees arising from ‘unlawful treatments’ by employers, potential employers or even trade unions[1]. ‘Unlawful treatment’ includes unfair dismissal, discrimination and unfair deductions from one’s pay[2].
This is a model we can study.
Extension of time limit for claiming
The Bill provides that claims must be filed for mediation within 1 year from the date on which the claim arises or 6 months if the employment relationship has ended. Comparing with the statutory time limits for claims in the State and High Courts for employment contracts related claims which is 6 years, the proposed time bars of 1 year and 6 months, respectively, is extremely short. Will the minister explain the rationale for having such short time limits under the Bill? Will the Minister consider raising the limits to at least one year after the employment relationship has ended? I have asked this because 6 months is really a short time and it could well be that the employee was busy looking for a new job, adjusting to a new job or his or her family may require urgent attention or as we often see in employment disputes, the employee may be communicating with his or her employers and trying to come to an agreement regarding the dispute.
Claims should not be limited to $20,000
Under the Bill, claims are limited to $20,000 or $30,000 for claimants who go through the Tripartite Mediation Framework or MOM conciliation prescribed under the Industrial Relations Act. I am of the view that, unlike the Small Claims Tribunal, 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, rather than let it go on to the State Courts or beyond where legal costs will be considerably higher.
Tribunal not bound by rules of evidence in the conduct of any proceedings
Clause 21 of the Bill provides that the tribunal is “not bound by the rules of evidence in the conduct of any proceedings and may inform itself on any matter in such a manner as the tribunal thinks fit”. This is something which is not satisfactory. If, as what I suggested earlier, that the claim limits should be increased beyond $20,000, we should definitely enhance the current provision in clause 21 of letting the tribunal not be bound by the rules of evidence in proceedings under this Bill. I am saying this because under the proposed provisions, the tribunal has a wide discretion whether to admit or accept evidence. The risks of a tribunal failing to consider relevant evidence or making its decision based on arguably wrongful evidence cannot be discounted. I feel that 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. This problem of the tribunal not bound by rules of evidence is further compounded by other provisions in the Bill. For example, Clause 23 provides that appeal against any decision of the tribunal is to the High Court but only on issue of law or the claim being outside the jurisdiction of the High Court. The High Court is prohibited by Clause 25(2) of the Bill to vary the tribunal’s decision on a question of fact or to receive further evidence. Why do we accept further evidence especially if further evidence turned up after the proceedings?
Deputy Speaker sir, this Bill is a step in the right direction but I hope we can do much more with the proposed Tribunal.