You’re Fired!

Employee dismissals are a necessary part of working culture. However, companies should still strive to handle them delicately and impartially. HRM investigates

Last year, then Acting Manpower Minister Tan Chuan Jin revealed that the Ministry of Manpower (MOM) received an average of around 70 complaints of unfair dismissals from female employees every year between 2007 and 2013.

A sizeable 70% of these involved pregnant women.

According to Tan, the majority of these cases were not simple. In most, both the worker and employer were unable to validate whether the sacking was with or without sufficient cause.

Tam reaffirmed that the Employment Act (EA) “protects employees against unfair dismissal” and that under the Act, female workers are further protected from unfair dismissal during pregnancy.

The Act also ensures female staff are entitled to paid maternity leave and prevents their dismissal while they are taking it.

Nevertheless, where the employee’s case falls outside the ambit of the EA, the conditions of dismissal will be governed primarily by the terms of the employment contract, says lawyer Kala Anandarajah, Partner and Head of Competition, Anti-trust, and Trade at Rajah & Tann Singapore LLP.

Unfair dismissal claims

According to Kala, if the employee is not covered by the EA, there is nothing to prevent them from alleging that they have been unfairly dismissed by the employer.

That’s particularly true where the employer summarily dismisses the employee without adequate reasons or where the procedure related to summary dismissal has not been followed.

“The employee will have to show evidence of the unfair dismissal,” says Kala.

“If the employee succeeds in an action alleging unfair dismissal, as a general rule, the employer will be liable to pay the employee damages equivalent to all amounts that the employee (would) get under the terms of the employment agreement. “

Summary dismissal refers to dismissing an employee without notice.

The high-profile sacking of a National Trades Union Congress (NTUC) assistant director in 2012 was one recent example (see: boxout).

That same year, a top-level banking executive at Barclays was fired after a video of him hurling abuse at a group of construction workers emerged online (see: boxout).

Even if the action does not succeed, there is a time and opportunity cost incurred by the employer.

“As such, it is important to take measured approaches in terminating an employee; although (just) providing the reason for the termination is not the solution,” says Kala.

In addition, when the employee being terminated is a Singaporean citizen, the employee may file a complaint with the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) alleging that they have been discriminated against by reason of nationality.

“In this instance, TAFEP may commence an investigation against the employer and where the employer remains recalcitrant or unresponsive, the employer’s work pass privileges may be curtailed,” adds Kala.

Documenting the reasons

While companies have every right to dismiss their employees, they must adhere to all relevant procedures, if any, within the firm.

“Where it is a case of giving notice to terminate, do ensure that proper notice is provided,” says Kala.

“Additionally, do verify the entitlements due to the employee at termination and ensure that these are provided.”

If the employee is to be sacked immediately and without notice, it is crucial for the employer to realise that this could be a breach, if the employment agreement does not allow payment in lieu.

“Hence, we recommend that if the employer is going to do this, it is critical that the employer be thorough in assessing what the employee could be entitled to and provide it in full,” explains Kala.

When there is a decision to proceed ahead with a summary dismissal, the employer needs to ensure that relevant internal grievance procedures, if any, are complied with.

“If there are no such procedures, then it is particularly important to document the reasons comprehensively for the termination,” she adds.

“At the very least, the employer should document instances of the employee’s conduct relating to the summary dismissal, including any warning letters that had been previously issued.”

According to MOM’s Guide on Employment Laws for Employers, an inquiry to determine whether the worker has indeed been guilty of a serious offence or gross misconduct needs to be conducted.

Should the inquiry find the worker guilty of either, then the company may fire him without providing any notice.

Rise of constructive dismissals

Another aspect of dismissal becoming a more common occurrence in Singapore is that of “constructive dismissal”, says Kala.

“These generally arise where the employee is able to show that the employer had through actions, gradually demoted the employee or had removed benefits that the employee was entitled to,” she explains.

“Other illustrations include demotion of the employee, unilateral reduction in salary of employee, failure to pay salary, and undermining the position of a senior employee.”

The issue of constructive dismissal was personified in a recent case of an IBM New Zealand employee, who eventually lost his appeal (see: boxout).

Kala adds that in legal terms, constructive dismissal amounts to a repudiatory breach of the employment contract, where the employer had engaged in a significant breach which goes to the root of the employment contract.

 

Barclays banker pays the price for rant

Singapore-based Barclays banker Olivier Desbarres found himself in hot water in 2012 when he was filmed exploding into a rage against a group of construction workers outside his home.

Hurling vulgarities at them, the 37-year-old former head of foreign-exchange strategy in Asia had also threatened their family members, claiming he could easily find them as “I am a man with resources”.

He was also filmed throwing a sheet of zinc panel into the construction pit.

The construction company filed a police report after his outburst.

According to the Huffington Post and the Wall Street Journal, Desbarres was subsequently sacked for his unacceptable behaviour.

“It’s a very sad thing. But that kind of behaviour... is so completely out of the standards that we expect, we had to ask him to leave,” a bank source reportedly told The Business Times.

 

 

Sacked for racist comments

Amy Cheong, then an assistant director with the National Trades Union Congress (NTUC), was fired after she posted offensive comments on her Facebook page.

Cheong made insulting remarks about Malay void deck weddings and published a public status on her personal Facebook timeline.

She linked Malay weddings to high divorce rates and questioned how society could “allow people to get married for 50 bucks”, filling her post with vulgarities.

In a separate post, she also allegedly wrote, “Void deck weddings should be banned. If you can’t afford a proper wedding then you shouldn’t be getting married. Full stop.”

Her comments drew serious fire from netizens and although she apologised soon after, she was sacked from her high profile position.

In a statement to the media, NTUC secretary-general Lim Swee Say said the NTUC had “terminated with immediate effect the services of Ms Amy Cheong, Assistant Director, Membership department, after establishing with her that she did post offensive comments... on 7 October 2012”.

“Regrettably and rightly so, her comments have upset members of the public, including many union members,” said Lim.

“We are sorry that this has happened. We have counselled the staff and impressed upon her the seriousness of her action. She is remorseful and has apologised for her grave lapse of judgement.”

Lim also stressed that the NTUC “takes a serious view on racial harmony in Singapore”, adding that it “will not accept and have zero tolerance towards any words used or actions taken by (its) staff that are racially offensive”.

 

 

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