This article was written by Patrick Tay, a Member of Parliament and Assistant Secretary-General of NTUC. Original article republished with permission.
With the economic challenges brought about by the COVID-19 pandemic, the number of claims related to wrongful dismissal has risen significantly in recent months, with the number of claims in April 2020 double that of the average per month from January to April 2020. What are your employment rights as an employee, and what are some things to look out for, if you believe you’ve been wrongfully dismissed?
Question: What Protections Do Employees Have From Being Wrongfully Dismissed?
In April 2019, the tripartite partners, comprising the Singapore Ministry of Manpower, National Trades Union Congress and Singapore National Employers Federation (SNEF) jointly developed and released a set of guidelines to give a clearer picture of what constitutes wrongful dismissals, and ensure that employees are adequately protected.
Read More: Tripartite Guidelines on Wrongful Dismissals
Question: What If I Am Unfairly Terminated Or Dismissed For Reasons Such As Poor Performance, Or If I Am “Forced” To Resign?
An employer may dismiss an employee for poor performance, but not without notice. If so, the employer will need to substantiate the poor performance.
Where poor performance is cited, the Guidelines suggest the following:
1) Whether the poor performance was observed over a certain period (or was a one-off incident).
2) Whether there was prior communication to the employee about the poor performance e.g. via performance reviews.
3) Whether there was documentation of the poor performance e.g. the incidents involved, documented performance reviews.
“Forced resignation” may also be considered wrongful dismissals. The employee will have to substantiate his claim that he was forced to resign.
On the other hand, an employer may, after due inquiry, dismiss an employee without notice for misconduct. If misconduct is cited as the reason, the burden rests on the employer to prove this. Examples of misconduct include theft, dishonest or disorderly conduct at work, insubordination, and bringing the company to disrepute.
Question: As Long As My Employer Dismisses Me With Notice, It Should Not Be Wrongful?
While both employers and employees have a right to contractually terminate employment with notice, there are situations in which exceptions apply, for example in a situation whereby there is redundancy.
While redundancy is a legitimate reason for companies to let go of workers, employees need to be given ample notice. Importantly, in situations where there is redundancy, which happens usually when a company has excess manpower or undergoes restructuring, retrenchment should only be taken as a last resort.
It bears noting that an employee is presumed to have been retrenched if the employer cannot show a plan to fill the vacancy any time soon regardless of what the termination of employment is called . During this COVID-19 period, if a company is found to have disguised their retrenchments, the relevant authorities can and will consider withdrawing government support like the Jobs Support Scheme and suspending work pass privileges.
Further if retrenchment is inevitable, the Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment and NTUC Fair Retrenchment Framework provides guidance on how companies should conduct the retrenchment exercise.
Employers should also note and comply with the Advisory on retrenchment benefits payable to retrenched employees as a result of business difficulties due to COVID-19, issued by the Tripartite Partners.
Other Instances Where Termination With Notice May Be Wrongful:
Other instances in which termination with notice may be wrongful include termination for the following reasons: discrimination against age, gender, religion, marital status, family responsibilities and disability; deprivation of benefits such as maternity benefits; punishing an employee for exercising his or her employment rights; or if the reason given is false. In these situations, the employee will need to substantiate that the reason for dismissal is wrongful.
As an employee, you should know your employment rights to protect yourself adequately. If you believe that you have been wrongfully dismissed, do first and foremost examine your employment contract to ensure that you have not violated any of the terms. You may also wish to look through the Tripartite Guideline on Wrongful Dismissals.
In the event that you are unable to resolve the issue internally, non-union members may file a claim for mediation with the Tripartite Alliance for Dispute Management (TADM). Should your dispute remain unresolved, the matter will be referred to the Employment Claims Tribunal for a determination.
If you are a union member, do approach your union for assistance. If there are valid grounds, the union may appeal to the Minster for Manpower on your behalf.