In Singapore, the issue of wrongful dismissal has been a growing concern, particularly with the economic turbulence caused by the COVID-19 pandemic.
The Tripartite Guidelines on Wrongful Dismissal, introduced in 2019 by the Ministry of Manpower (MOM), the Singapore National Employers Federation (SNEF), and the National Trades Union Congress (NTUC), provide clarity and guidance on this matter.
The Tripartite Guidelines on Wrongful Dismissal aim to help employers, employees, mediators, and adjudicators understand the new provisions on wrongful dismissal in Singapore.
These guidelines outline the circumstances under which a dismissal may be considered wrongful and the legitimate reasons for termination.
Definition Of Wrongful Dismissal
A dismissal is defined as the termination of a contract of service between an employer and an employee at the employer’s initiative. This can happen with or without notice, including salary-in-lieu of notice. It also includes involuntary resignation.
It is considered wrongful to dismiss an employee without just or sufficient cause. The guidelines provide illustrations to guide employers, employees, mediators, and adjudicators on what constitutes dismissals that are not wrongful and what constitutes wrongful dismissal under the Employment Act.
When Is An Employee Wrongfully Dismissed?
Employers must have legitimate, non-discriminatory reasons and follow proper procedures when dismissing employees.
According to the Tripartite Guidelines on Wrongful Dismissal, terminations that are motivated by discrimination, deprivation of benefits, retaliation, lack of evidence, or constructive in nature can be deemed unlawful.
1. Dismissal On Discriminatory Grounds
Employers are prohibited from dismissing employees due to age, gender, disability, family responsibilities, nationality, pregnancy, race, or religion. Any termination that is found to be motivated by discrimination against these protected attributes would be considered wrongful dismissal.
Examples:
- Dismissing an older employee nearing retirement age despite their satisfactory performance.
- Terminating a female employee upon discovering she is pregnant.
- Letting go of a Singaporean employee in favour of a foreign worker with similar qualifications.
2. Dismissal To Deprive Employees Of Benefits/Entitlements
Employers cannot use dismissal to avoid providing employees with their rightful benefits or entitlements. This includes terminating an employee during or shortly after a period of illness to avoid paying medical benefits or dismissing someone after they inform the employer of their pregnancy.
Examples:
- Dismissing an employee on prolonged medical leave to avoid paying for their hospitalisation costs.
- Terminating an employee’s contract immediately after they inform the employer of their pregnancy.
- Disguising a redundancy situation as a performance-based dismissal to avoid paying retrenchment benefits.
3. Dismissal To Punish Exercise Of Employment Rights
Employers cannot terminate employees as retaliation for exercising their legitimate employment rights, such as refusing a salary reduction, filing a complaint, or requesting mediation for non-payment of salaries.
Examples:
- Dismissing an employee after they refused to accept a unilateral salary cut proposed by the employer.
- Terminating an employee who filed a complaint about unfair treatment or discrimination at the workplace.
- Letting go of an employee for requesting mediation with the employer over non-payment of salaries.
4. Dismissal On Unsubstantiated Grounds
Employers must have clear, documented evidence if they dismiss employees due to misconduct or poor performance. Termination without a proper inquiry or without giving the employee a chance to respond would be considered wrongful.
Example:
- Dismissing an employee for alleged misconduct without conducting a thorough investigation and providing the employee an opportunity to explain their actions.
5. Constructive Dismissal
This occurs when an employer’s conduct or omissions force an employee to resign involuntarily. The employer then considers the resignation a wrongful dismissal.
Example:
- An employer significantly changes an employee’s job scope, reporting structure, or compensation without their consent, leading the employee to feel they have no choice but to resign.
Legitimate Reasons For Dismissal According To Tripartite Guidelines
The guidelines provide two legitimate reasons for dismissal: misconduct and poor performance. As mentioned, the employer has the burden of proof. Failure to justify misconduct or poor performance makes the dismissal invalid or wrongful.
Misconduct
The employer can dismiss an employee without notice for misconduct after due inquiry. Misconduct includes but is not limited to:
- Theft
- Dishonesty
- Disorderly conduct at work
- Insubordination
- Bringing the organisation into disrepute.
Example of Misconduct:
A financial analyst was discovered secretly accessing client account information without authorisation and using the confidential data to make unauthorised trades for his own gain.
After conducting a proper inquiry and allowing the analyst to respond, the company determined that his dishonest and unethical conduct constituted a serious breach of trust and confidentiality, which are core values for the financial services firm.
The company then dismissed the employee without notice, citing his misconduct as the legitimate reason. This dismissal without notice would likely be considered lawful under the Tripartite Guidelines on Wrongful Dismissal in Singapore, as the employer followed the proper procedures.
The employer’s ability to demonstrate the proven misconduct justifies the dismissal without notice, ensuring it is not deemed wrongful.
Poor Performance
Poor performance cannot be a reason for dismissal without notice in Singapore. The employee must be notified before they are terminated. Moreover, the employer must substantiate or give the employee a chance to improve before dismissing them.
Example Of Poor Performance:
A software engineer had her performance decline in the second year of her employment, with missed deadlines, poor code quality, and increasing bugs in the company’s mobile app.
His employer documented the performance issues and provided feedback and support for improvement, but his performance did not improve over several months.
Faced with the ongoing performance problems impacting the company, the employer decided to terminate the engineer’s employment, providing the required notice period as per her contract.
This dismissal with notice would not be considered wrongful, as the employer followed due process and cited the legitimate reason for poor performance.
Procedural Requirements For Fair Dismissal In Singapore
Tripartite Guidelines on Wrongful Dismissal provide a clear framework for employers to follow fair dismissal procedures in Singapore. The guidelines outline several procedural requirements for employers:
- Misconduct Inquiries: For dismissals due to misconduct, the employer must conduct a proper inquiry and give the employee time to respond to the allegations and present their case before dismissing them without notice.
- Performance Management: For dismissals due to poor performance, the employer must provide documentation of the employee’s shortcomings and give them opportunities to improve before terminating their employment with notice.
- Reason for Dismissal: Employers must provide a reason for dismissal if the employee requests it, even for dismissals with notice.
- Suspension: Employers may suspend an employee during an inquiry of misconduct. If the inquiry will last more than one week, the employer must seek approval from the Commissioner for Labour.
- Adherence to Employment Contracts: Employers must ensure that the dismissal is in line with the terms of the employment contract, such as the required notice period.
- Salaries: Employers must pay the employee on the last day or within three working days from the date of dismissal.
Recourse For Employees Facing Wrongful Or Unfair Dismissal
The guidelines also outline the avenues available for employees to seek recourse for wrongful dismissal:
- Internal Appeal: Employees should first appeal to their Human Resources (HR) department against their unfair dismissal. Arrange to meet with your HR department, bring documents that justify your case as evidence, seek to clarify any misunderstandings that may have led to your dismissal, and attempt to resolve the matter in an amicable manner.
- Ministry of Manpower (MOM): If an employee feels that they have been wrongfully dismissed or if they have been denied re-employment due to their age, they may appeal to the Ministry of Manpower.
- Mediation through TADM: Employees can file a mediation request with the Tripartite Alliance for Dispute Management (TADM) within one month of dismissal to resolve disputes related to wrongful dismissal.
- Employment Claims Tribunal: The Employment Claims Tribunal (and on appeal, the High Court of Singapore) is required to follow the Tripartite Guidelines when deciding a claim involving wrongful dismissal.
- Seek legal advice: Consult a lawyer to help guide you through the legal process and assist in preparing necessary documents, especially if the situation escalates to Court.
- File a claim within the specified time frame: File a claim within the designated time limits: one month from the final day of employment, or, if the dismissal was wrongful and occurred during pregnancy, within two months following childbirth.
Conclusion About Wrongful Dismissal In Singapore
Wrongful dismissal is a serious issue in Singapore, with the law providing broad protections for employees against unfair termination of employment.
The Tripartite Guidelines on Wrongful Dismissal, enforced by the Employment Claims Tribunal and the High Court, outline the legitimate grounds for dismissal and the procedures employers must follow.
If you believe you have been wrongfully dismissed, it is advisable to seek legal advice from a reputable law firm like Tembusu Law.
For any legal needs, our extensive expertise from criminal law to family/divorce law, we can review the details of any case, advise on your rights and options, and guide you through the process of seeking redress.
Schedule an appointment today!
Frequently Asked Questions About Wrongful Dismissal In Singapore
How Do I Prove Wrongful Dismissal?
To prove wrongful dismissal, you must gather evidence of the employer’s misconduct or breach of contract.
This can include documents, witness statements, and records of the employer’s actions. Seek legal advice from a firm like Tembusu Law to help you build a strong case.
Can I File A Claim For Wrongful Dismissal If I Was Terminated Due To Redundancy?
Yes. You can file a claim for wrongful dismissal if you were terminated due to redundancy. However, you will need to prove that the redundancy was not genuine or that the employer did not follow the proper procedures for redundancy.
Can I File A Claim For Wrongful Dismissal After The Time Limit?
No, you cannot file a claim for wrongful dismissal after the one-month time limit has expired. If you believe you have been wrongfully dismissed, you must file your claim within the specified time frame.
What Is Constructive Dismissal?
Constructive dismissal occurs when an employer’s conduct or omissions force an employee to resign involuntarily. This can include significant changes to the employee’s job scope, reporting structure, or compensation without their consent.
