Singapore Law Gazette (December 2013)

01Presidents

Message

Singapore Law Gazette December 2013

Ms Julie Woon and her partner at JurisOne LLP, Ms Diane Ng were part of a long queue snaking out from the Law Societys premises at South Bridge Road on Tuesday, 22 October 2013. They were two among hundreds of lawyers casting their votes in this years Council elections. Their attention was soon drawn to the presence of a young couple in the queue. They were casually dressed and looked more like tourists than lawyers. Curious, Julie turned to them and asked if they knew what the queue was for. One of the two, a young man, replied with a shrug of his shoulders, Not really. We think they might be giving away breakfast inside.

We had a good laugh as Julie recounted this little episode to me recently over lunch. Although tourists, the young couple were engaged in what I thought was a most Singaporean activity, viz joining a queue in expectation of receiving something without knowing exactly what the queue was for. Well, I told my lunch companions, they got it wrong that morning. The lawyers who queued up that day were there to vote, not to receive something from the Law Society.

As I thought about it again a couple of days later, I was less certain about the conclusion I had drawn earlier when I was fi rst told of the incident. Is it true that members were only there to vote with no expectations that morning of receving anything? I realised of course that my conclusion was fundamentally fl awed. Not every member may have thought about or have crystallised their specifi c expectations that day but one thing is clear: members are entitled to have expectations of the new Council.

In a very short while, a new Council will take offi ce in the new year and hopes to serve the Society and the Profession as best as it can. As we stand on the cusp of the new year, the excitement of the changes the profession is poised to make and the weight of expectations of members with diverse practices, backgrounds, strengths and weaknesses may have left some in the new Council feeling like enthusiastic climbers planning their fi rst summit, eager to experience the exhilaration of the climb, but at the same time, dreading the prospect of failure at the hands of fatigue, slippages and other headwinds.

December, I have always thought, is the time of expectations. January is the time of resolutions.

In December, companies and businesses look at the year just passed and measure performance against budgets and expectations set earlier and then start the goal setting process all over again for the new year. Individually, we take stock of practice and fi nancial goals, measure them against expectations set a year earlier, suck in our breath, then plan and crystallise expectations for the new year ahead.

For myself, I have learnt it is best to adopt an evidence based approach to help in this process. I need to know what I can do, what I am better at and what I am lesser at. I need to make allowances and try to give myself greater margins in terms of time and resources to be devoted to competing interests, duties and responsibilities. But adopting an evidence based approach doesnt mean diminishing your goals and diluting your expectations for the new year. Take the time to take stock of the years events. I believe in doing so, you will fi nd to your surprise, events, some big, some small, where the outcomes were quite unexpected and often, quite inspirational. Lifes surprises can often be uplifting and encouraging.

My friends, may I suggest that in taking stock, we consider not just our work in the year that is passing. Look too at the changes in the profession that will soon be taking place the introduction of the Singapore International Commercial Court, the Singapore International Mediation Centre, the Primary Justice Project, amendments to the insolvency and the intellectual property regimes, changes to family law practice, the third law school and the recent announcement by the Ministry of Law to directly fund criminal legal cases here, just to name a few.

Changes do bring about challenges, but not all challenges are bad. Take time to fi nd out more about these changes; consider how your practice may strengthen in depth or broaden in scope as a result of these developments.

In a sense, at the end of every year, we can be a little like the climber contemplating his challenge ahead; exhilarated by the climb ahead but struggling somewhat under the weight of expectations and the fear that the quest itself will encounter headwinds. We are at a unique point in the development of the legal profession in Singapore, at a moment awaiting the implementation of bold and ambitious changes. Do these changes only portend headwinds to come or do they open up for you possibilities of new opportunities and vistas of new practice areas? Know the changes and study them!

Well do well to bear in mind the advice the lawyer, Mr Jaggers, gave to Pip in Charles Dickens Great Expectations: Take nothing on its looks; take everything on evidence. Theres no better rule.

A Blessed Christmas and a happy and healthy 2014 to all members!

Lok Vi Ming, Senior Counsel President The Law Society of Singapore

Great Expectations

Great Expectations 01

Presidents Message M

Diary and Upcoming Events 04Council and Committee Updates 05Guidance Note 2013 Paragraph 11: Arrangements for Practice Training 06Contracts/Relevant Legal TrainingAnnual Dinner and Dance 2013 08Results of the Singapore Law Gazette Awards 2013 18

NewsN

Employment Contracts Termination and Dismissal 20The Womens Charter (Matrimonial Proceedings) Amendment Rules 2013 30The Court of Appeal as Transaction Costs Engineer 35Deutsche Bank AG v Chang Tse Wen [2013] SGCA 49

FeaturesF

Tea with the Law Gazette Interview with Yap Teong Liang, 40Chairperson of the Family Law Practice Committee The Young Lawyer Dining in the Dark Brightens Up Your Soul 41

ColumnsC

Alter Ego The Year of Learning 43Travel Boshintang and Other Korean Specialties 45

LifestyleL

Notices Professional Moves 50Information on Wills 51N 54Appointments

A

Contents

Th e Singapore Law Gazette

An O cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Lok Vi Ming, SCVice Presidents Mr Leo Cheng Suan Mr Th io Shen Yi, SCTreasurer Mr Kelvin Wong

Mr Wong Meng Meng, SC, Mr Young Chee Foong, Mr Lim Seng Siew, Ms Kuah Boon Th eng, Ms Rachel Eng, Mr Adrian Tan, Mr Gregory Vijayendran, Ms Lisa Sam, Mr Michael S

Chia, Mr Moiz Sithawalla, Mr Anand Nalachandran, Mr Sean La Brooy, Mr Lee Terk Yang, Mr See Chern Yang, Ms Hazel Tang, Mr Josephus Tan, Ms Simran Kaur, Mr Kenneth See

Editorial BoardMr Gregory Vijayendran, Ms Malathi Das, Mr Prakash Pillai, Ms Celeste Ang, Mr Joel Teo, Mr Chua Sui Tong, Ms Vanessa Lim, Ms Lye Huixian, Mr M Lukshumayeh, Mr Marcus Yip, Mr Mohan Gopalan, Mr Rajan Chettiar, Ms Simran Kaur, Ms Supreeta Suman, Mr Vincent Leow, Mr Yeo Chuan Tat, Mr Yeoh Lian Chuan

Th e Law Society SecretariatChief Executive O cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth Goh, Mr Kevin WangConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cli ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Shahrany Hassan, Ms Vimala Chandrarajan, Ms Nadine Yap, Ms Babara SeetPublications Ms Sharmaine LauRepresentation & Law Reform Ms Michelle Woodworth Cordeiro

Publishing Reed Elsevier (Singapore) Pte Ltd trading as LexisNexisAssociate Director, Contract Publishing Ivan YapEditor ChandranieCover Design Mohd Khairil JohariDesigner Mohd Khairil JohariWeb Administrator Jessica WangAdvertising Account Manager Anthony Eng For Advertising EnquiriesTel: (65) 6349 0172Email: [email protected] Markono Print Media Pte Ltd

LexisNexis, a division of Reed Elsevier (Singapore) Pte Ltd, is a leading provider of legal and professional information in Asia, with o ces in Singapore, Malaysia, Hong Kong, India, England, Scotland, Ireland, Australia, New Zealand, Canada and South Africa. Th e complete range of works published by LexisNexis include law reports, legal indexes, major works, looseleaf serivces, textbooks, electronice products and other reference works for Asia.

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Th e Singapore Law Gazette is the o cial publication of the Law Society of singapore. Copyright in all material published in journal is retained by the Law Society. no part of this journal may be reproduced or transmitted in any form or by any means, including recording and photocopying without the written permission of the copyright holder, application for which should be addressed to the law society. Written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. the journal does not accept liability for any views, opinions, or advice given in the journal. Further, the contents of the journal do not necessarily re ect the views or opinions of the publisher, the Law Society or members of the Law Society and no liability is accepted or members of the Law Society and no liability is accepted in relation thereto. Advertisements appearing within this publication should not be taken to imply any direct support for, or sympathy with the views and aims of the publisher or the Law Society.

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Upcoming Events16 & 17 January 2014Criminal Law Conference 201424 & 25 April 2014Litigation Conference Workshop

18 November 2013Seminar on Labour RelationsOrganised by Continuing Professional Development Committee2.30pm-6.00pmSingapore Management University

22 November 2013Day of Conveyancing HighlightsOrganised by the Continuing Professional Development Committee9.00am-5.05pmNTUC Business Centre

23 November 2013Annual Bowling Tournament Piala Pala 2013Organised by the Sports Committee10.00amPlanet Bowl @ CSC

28 November 2013Recent Developments in International LawOrganised by the Continuing Professional Development Committee5.00pm-7.00pmNTUC Business Centre

5 November 2013Seminar on Best Practices and Developments on NIMA-PIMAOrganised by the NIMA-PIMA Committee 2.30pm-5.15pmCliftons Singapore

10 November 2013 16th Charity Golf TournamentOrganised by the Criminal Legal Aid Scheme CommitteeTanah Merah Country Club

11 & 12 November 2013Annual CPD Day 2013Organised by the Continuing Professional Development Committee9.00am-5.30pm and 2.00pm-5.30pmSupreme Court and Cliftons Singapore

15 November 2013Law Society Annual Dinner & Dance 20137.30pmShangri-la Hotel

Diary

04News

Singapore Law Gazette December 2013Singapore Law Gazette November 2013

Diary and Upcoming Events

Updated Compilation of the Law Society Practice Directions, Rulings and Guidance Notes

Council approved the compilation of the 1989 Practice Directions and Rulings (PDR) including the relevant PDRs to be modifi ed or repealed. The compilation of the PDR will be made available as an e-resource on the Members Library of the Societys website.

Charity Golf Tournament 2013

Council noted that the Charity Golf Tournament in aid of the Criminal Legal Aid Scheme, held on 10 November 2013, raised a total sum of $380,000, which is by far the highest amount raised since the inception of the tournament in 1998.

Launch of legaleSE

The Law Awareness Committee held a launch for legaleSE, an initiative to assist social entrepreneurs with legal information required to operate a business with a cause in Singapore. The launch was held on 7 December 2013 and included the release of a publication titled legaleSE Toolkit, talks, seminars and legal clinics for such enterprises.

3rd Southeast Asia Pro Bono Conference

Council noted that the Law Society would be hosting the third Southeast Asia Pro Bono Conference from 9 to 11 October 2014.

Council and Committee Updates

05News


Council and Committee Bulletin

Guidance Note 2013 Paragraph 11: Arrangements for Practice Training Contracts/Relevant Legal Training1. This Guidance Note takes effect on 14 November 2013.

2. This Guidance Note is in relation to an agreement, whether in writing or otherwise (agreement) which a person (a trainee) enters into with a law practice:

a. to serve his/her practice training period under a practice training contract (whether or not the practice training contract has been registered with the Singapore Institute of Legal Education or any other body or authority); or

b. to undergo relevant legal training in order to become a qualifi ed person.

3. Based on feedback from some law practices, there have been situations where a trainee does not join a particular law practice despite having entered into an agreement with that law practice. There may be various reasons why a trainee may not join a particular law practice eg the trainee may wish to join the Legal Service, or another law practice, or may decide on a different career altogether.

4. In the situation where a trainee does not wish to join a particular law practice (fi rst-mentioned law practice) because he/she intends to join another law practice (second-mentioned law practice), that trainee may have already entered into an agreement with the fi rst-mentioned law practice.

5. This Guidance Note is designed to refl ect appropriate conduct by the parties to an agreement in the situation where a trainee, having entered into an agreement with a law practice, intends to enter into another agreement with another law practice.

6. The parties to an agreement should be aware of the following:

a. If a trainee enters into an agreement with a law practice but subsequently does not wish to join that law practice, it is only common courtesy to inform the law practice as soon as practicable that he/she will not be joining the law practice.

b. Based on an agreement that a trainee has entered into with a law practice, that law practice is likely to have committed resources for purposes of the practice training or relevant legal training for that trainee and it may have turned down other applicants for practice training or relevant legal training.

c. It would not be advisable or appropriate for a trainee to enter into an agreement with more than one law practice solely for the purpose of securing options to pick and choose which law practice to join.

7. If a trainee intends to enter into an agreement with a second-mentioned law practice, and the second-mentioned law practice is or should be aware that the trainee has already entered into an agreement with a fi rst-mentioned law practice, the second-mentioned law practice should advise the trainee to fi rst inform the fi rst-mentioned law practice that he/she would not be joining that fi rst-mentioned law practice and preferably to obtain their consent, before considering whether to offer an agreement to that trainee.

8. This Guidance Note is advisory only and is not binding on the parties to an agreement.

9. The Society does not express a view on the validity of an agreement and this Guidance Note does not affect the legal rights of the parties to an agreement.

Date: 14 November 2013

The Council of the Law Society of Singapore

06News


Guidance Note 2013 Paragraph 11

The Law Society held its Dinner & Dance cum Charity Gala at the Shangri-La Hotel on Friday, 15 November 2013.

The Dinner was attended by about 500 guests, including Judges and Judicial Commissioners of the Supreme Court and other distinguished guests.

The Master of Ceremonies for the evening was the lovely Oon Shu An.

At the Dinner, two awards were presented the C C Tan Award and Pro Bono Ambassador Award. The C C Tan Award for 2013 was conferred on Mr George Lim Teong Jin, SC while the Pro Bono Ambassador Award for 2013/2014 was conferred on Mr Josephus Tan.

Other award recipients for 2013 included the following:

Volunteer of the Year Award: Large-sized law practice: Rodyk & Davidson LLP Mid-sized law practice: Patrick Tan LLC Small-sized law practice: OTP Law Corporation Sole practice: Rajan Chettiar & Co

Plaque of Appreciation: Mr Lim Tat, Mr Wendell Wong, Ms Renuka d/o Karuppan

Chettiar, Mr Parwani Vijai Dharamdas and Mr Low Chai Chong

Friend of the Law Society: Mr Yeong Zee Kin, Senior Assistant Registrar, Supreme

Court

The Shanghai jazz band Shanghai Swingers entertained throughout the Dinner and played some nostalgic Shanghai jazz songs.

For the fi rst time the Law Society presented a runway launch of the limited edition capsule womens wear collection by Ms Priscilla Ong from design house Ong Shunmugam which showcased 10 of our very own members cat-walking and displaying the eye-catching designs for a good cause to raise funds for the Law Societys Pro Bono Services Offi ce (PBSO). Ong Shunmugams capsule collection includes the labels classic and best-selling designs issued in limited black and white editions, specially designed for women in the legal profession. Fifty per cent of proceeds from the sale of each piece was donated to PBSO.

Other fund-raising activities at the Dinner included a silent ballot and live auction. Premium tables were also sold to raise funds for PBSO. The Law Society would like to thank the following fi rms who purchased the Gold and Silver tables:

Gold Table 1. TSMP Law Corporation 2. Clifford Chance/Cavengah Law LLP

Silver Table 1. Advocatus Law LLP 2. Baker & Mckenzie Wong & Leow 3. Harry Elias Partnership LLP 4. Salem Ibrahim LLC

The Law Society would like to especially thank those who kindly assisted in the Charity Gala on a pro bono basis Mr Jameson Koh of Marvele Group Pte Ltd and Mr Desmond Moey of Serendip Pte Ltd, the production companies that helped to organise the fashion show; and Ms Oon Shu An who was the master of ceremonies.

The Law Society would also like to thank the following sponsors: Claude Bernard; Freshfi elds Bruckhaus Deringer Singapore Pte Ltd; Fujitsu Asia Pte Ltd; Hock Tong Huat Pte Ltd; Jade The Fullerton Hotel Singapore; Lockton Companies (Singapore) Pte Ltd; Marvele Group Pte Ltd; Ong Shunmugam; Remy Cointreau International; Serendip Showbiz Pte Ltd; and Mr Chelva Retnam Rajah, SC.

Annual Dinner & Dance 2013

08News


Annual Dinner & Dance

Sponsored Article

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Fujitsu_SponsoredQ&A-FA.indd 1 12/18/13 4:13 PM

1Vice-President Mr Th io Shen Yi, SC, reading the citation for

the CC Tan awardPresident Mr Lok Vi Ming, SC (left), presenting the CC Tan award to Mr George Lim, SC

Mr Josephus Tan (right), receiving the Pro Bono Ambassador award from President Mr Lok Vi Ming, SC

All the award winners for 2013 posing with Judges and Judicial Commissioners, former CJ Chan Sek Keong and Council Members

Mr George Lim, SC, giving his acceptance speech for the CC Tan award

10News

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Our members doubling up as models for the evening, in Ong Shunmugams capsule collection

Master of Ceremonies for the evening, Ms Oon Shu An

President Mr Lok Vi Ming, SC giving a speech at the dinnerTh e live auction with proceeds going to the Pro Bono Services O ce

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Results of the Singapore Law Gazette Awards 2013The Publications Committee launched the Singapore Law Gazette Awards this year to acknowledge and recognise contributors to the Features section of the Gazette, whether they be practising members, judicial offi cers, in-house counsel, academics, practice trainees or law students. The criteria for the awards covered depth of analysis, display of thought leadership, depth of research, and writing style. We are pleased to announce the winners: 1. Best Feature Article: The Death Penalty and the

Desirability of Judicial Discretion (March 2013) by Associate Professor Dr S Chandra Mohan and Priscilla Chia Wen Qi, Singapore Management University

2. Best Feature Article by a Young Lawyer: Locus Standi

in Judicial Review: Two Roads Diverge in a Singapore Wood (February 2013) by Tham Lijing, Tan Rajah & Cheah

We would like to thank our panel of judges who painstakingly read through the articles nominated by the Publications Committee:

1. Justice (Retired) Kan Ting Chiu2. Mr Michael Hwang, SC3. Mr Philip Jeyaretnam, SC4. Professor Michael Hor, Faculty of Law, National

University of Singapore5. Ms Simran Kaur Toor, Council Representative,

Publications Committee The Publications Committee also awarded a Special Mention prize for the article When Should Video Conferencing Evidence be Allowed? (September 2012) by Michael Hwang, SC and Anthony Cheah Nicholls of Michael Hwang Chambers. We warmly congratulate the winners! If you would like to read the winning articles online, please visit www.lawgazette.com.sg and either go to the archives section to download the articles or search for the articles by keying in the name of the article. We invite aspiring writers to contribute to the Law Gazette. The qualifying period for the 2014 Law Gazette awards is July 2013 to June 2014. If you wish to contribute an article, please write to the Director of Publications, Sharmaine Lau at [email protected]

Invitationfor Contribution of Articles

The Singapore Law Gazette (SLGHUVMJPHSW\ISPJH[PVUVM[OL3H^:VJPL[ `HPTZ[VIL HU LK\JH[PVUHS YLZV\YJL MVY IV[OWYHJ[PZPUN SH^`LYZ HUK PUOV\ZL JV\UZLSH MVY\TMVYKLIH[LHUKH\ZLM\S YLMLYLUJLVMOPNOX\HSP[`JVTTPZZPVULKHY[PJSLZJV]LYPUNHSSSLNHSZWLJPHS[PLZ

4LTILYZVM [OL3H^:VJPL[ `UVUWYHJ[PZPUN SLNHSWYVMLZZPVUHSZHUKWYVMLZZPVUHSZPU YLSH[LK LSKZ HYL^LSJVTL [V Z\ITP[^LSSYLZLHYJOLKTHU\ZJYPW[Z [OH[ HYL VMLK\JH[PVUHSTLYP[HUKSPRLS`[VILVMPU[LYLZ[[VH^PKLYHUNPUNSLNHSH\KPLUJL

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;OL:3.PZ[OLWYLTPLYSLNHSQV\YUHSMVYHSSSH^`LYZHUKV[OLYYLSH[LKWYVMLZZPVUHSZWYHJ[PZPUN PU :PUNHWVYL 6\Y HY[PJSLZ HYL YLHK I` YLHKLYZ PUJS\KPUNWYHJ[P[PVULYZ[OLQ\KPJPHY `[OLSLNHSZLY]PJL[OLHJHKLTPHSPIYHYPLZV]LYZLHZIHYHZZVJPH[PVUZHUKHZPNUPJHU[U\TILYVMPUOV\ZLJV\UZLSPU:PUNHWVYL

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SIAC Rules: An AnnotationEdited by Hilary Heilbron QC, Jonathan Hirst QC, Klaus Reichert SC and contributions from Members of Brick Court Chambers

Key Features- Rule by rule commentary by experienced arbitration practitioners- Analysis of Singapore Arbitration Law- Comparison between SIAC Rules and other institutional rules

Table of ContentsRule by rule commentary of the SIAC Rules

The title will complement our other titles on Singapore International Arbitration. How arbitration under a particular set of institutional rulesoperates is often critical to a decision as to whether parties adopt those rules and, if they do what their effect is.

This new annotation to the 2013 SIAC Rules, which came into force in April 2013, is compiled and edited by experienced international arbitrationpractitioners from Brick Court Chambers, one of the leading Commercial set of Chambers in London. This title also provides detailed and verypractical guidance to any party considering the adoption of an agreement to arbitrate under the SIAC Rules and any practitioner who is involvedin SIAC arbitration under the new Rules.

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The Foreword, written by Lord Hoffmann, states:

"..... The SIAC Rules have also been periodically amended and arenow into their Fifth Edition, which came into force on 1 April 2013.Practitioners have to keep up with these changes and thepurpose of this commentary on the new Rules is to enable themto do so. I must declare an interest because it has been writtenby members of Brick Court Chambers, from which I practise. ButI think I can nevertheless commend it to anyone concerned withan arbitration under the SIAC Rules in Singapore or elsewhere."

BRICK COURTCHAMBERSBARRISTERS

Employment Contracts Termination and Dismissal

Introduction

When can an employer summarily dismiss an employee for misconduct? Can an employee sue under common law for an employers wrongful dismissal? Can an employee sue for a wrongful manner of dismissal? How does wrongful dismissal relate to the implied term of trust and confi dence or an implied duty of good faith (if any)?

In practice, such issues become pertinent when the cause for the dismissal does not fall within any of the stipulated grounds of termination in the employment contract. From an employers perspective, the right to dismiss summarily may become signifi cant where the termination of the employment contract in circumstances other than a repudiatory breach requires the employer to make severance or redundancy payments.1 Summary dismissal may allow the employer to avoid such payments, subject to the express terms of the employment contract. From the employees perspective, wrongful dismissal can found a claim for breach of the

employment contract and thus damages. This article discusses the above issues with reference to legal authorities from Singapore as well as other common law jurisdictions.

General Principles on Termination of Employment Contract

The starting point is that an employer-employee relationship is generally founded on contract and in such an event, would be subject to the general principles of contract law (or additionally the Employment Act (Cap 91) (EA), where it is applicable).

Thus, where an employer or employee intends to terminate the employment contract, either party has to terminate the contract in accordance with the stipulated terms of the contract.2 Most employment contracts would, therefore, stipulate a notice period for termination or payment of salary for such period in lieu.3 Where no such notice period is contractually stipulated for, the common law would imply

When can an employer summarily dismiss an employee for misconduct? Can an employee sue under common law for an employers wrongful dismissal? Can an employee sue for a wrongful manner of dismissal? How does wrongful dismissal relate to the implied term of trust and confi dence or an implied duty of good faith (if any)? This article explores these contentious issues of employment law.

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a reasonable notice requirement for such termination or payment of salary in lieu.4 Where the EA governs the employment contract, the notice period provided for ins 10(3) of the EA would apply. Notice need not be given in writing (perhaps unless the employment contract stipulates)5 but has to be given by the right party.6

In this sense, an employer or employee can terminate an employment contract without any good reason by simply giving the requisite notice of intention to terminate.7 (However, this may be subject to several qualifi cations elaborated upon below.)

A wrongful dismissal claim at common law is, therefore, based on the foregoing principles. The House of Lords in Johnson v Unisys Ltd [2003] 1 AC 518 (Johnson v Unisys) stated clearly that an action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the employment relationship, or pay the employee a certain sum that is a function of his or her salary in lieu of the same, in the absence of just cause for dismissal; however, the wrongful dismissal action is not concerned with the wrongness or rightness of the dismissal itself.8 The consequence is that an employer is legally entitled to dismiss an employee without having any just cause,9 and is not bound to give the employee a fair hearing before such dismissal, insofar as he has given notice of termination or payment of salary in lieu of the same.10 Where the employer had failed to give such notice of termination or payment in lieu, the employee is entitled to claim against the employer for damages for breach of contract; such damages would amount to the employees salary in lieu of such requisite notice.11 The notice period may be expressly stipulated in the employment contract, and in the absence of such express stipulation, would be a reasonable period.

Wrongful Dismissal, Implied Term of Trust and Con dence and Good Faith

A distinction should also be drawn between the issue of whether there was wrongful dismissal (ie notice or payment in lieu was furnished) and whether the manner of dismissal was fairly made.12 Their Lordships in Johnson v Unisys held that there was no right at common law to an employee being dismissed in a fair manner. In Johnson v Unisys, the plaintiff was an employee who alleged that he had suffered a mental breakdown as a result of the employer dismissing him on the very day he was called into a meeting where certain allegations were made against him. The House of Lords held that the there is no cause of action in common law for the unfair manner of dismissal, and that the claim was properly struck out.

Their Lordships considered that the implied term of trust and confi dence in employment contracts should not be extended to further require the employer to treat the employee fairly in the manner of dismissal as there would be potential problems of causation and disproportionate liability on the part of employers.13 However, in that case, their Lordships decided this issue on the basis that it would not be the proper exercise of the judicial function to extend the scope of this implied term where this is clearly within the ambit of legislatures function; the evidence of this being the UK Employment Rights Act 1996 which was legislated specifi cally to deal with such matters. Consequently, it was not open to the judiciary to create a parallel remedy at common law which is not subject to the same limits that the legislation contains.14

The decision in Johnson v Unisys was circumscribed or clarifi ed by a subsequent House of Lords decision, Eastwood v Magnox Electric and McCabe v Cornwall County Council [2005] 1 A.C. 503 (HL) (Eastwood). Their Lordships in Eastwood drew a distinction between an employers acts pre-dismissal, which would fall within the scope of the implied term of trust and confi dence, and an employers acts at the point of dismissal and post-dismissal, which would not fall within the scope of the implied term and thus could not be grounds for an employees claim for unfair dismissal (for the reasons stated in Johnson v Unisys). Thus, the House of Lords in Eastwood held that an employee who suffers fi nancial loss from psychiatric or other illness caused by his pre-dismissal unfair treatment (eg unjustifi ed suspension of employment) may have a common law cause of action which precedes and is independent of his subsequent dismissal.15 Lord Steyn in both Johnson v Unisys and Eastwood expressed his view that the precedent of Addis v Gramophone Company Limited [1909] 1 AC 488 (HL) did not preclude the possibility of a claim for special damages fl owing from the manner of a wrongful dismissal16 and that Parliament could not have intended to circumscribe the possibility of common law claims for unfair dismissal.17 As he pointed out, the majority of the House in Johnson v Unisys premised their decision on the assumption that the co-existence of a statutory scheme and the development of a common law remedy would not be workable, but this assumption was not established; if the concern was that of possible double recovery, it should not pose a signifi cant obstacle.18 Notwithstanding this, Lord Steyn noted the formidable evidential diffi culties in respect of proving causation for such a claim.19

The above area of law is not yet settled under Singapore law. This was considered in Chan Miu Yin v Philip Morris Singapore Pte Ltd [2011] SGHC 161 (Chan Miu Yin) at [34]-[45]. The Court there decided, in the context of a

21Feature


striking out application, that it was not plain and obvious that Singapore law does not recognise a common law claim for damages based on unfair dismissal.

It, therefore, remains open to the Singapore Courts to adopt the approaches in Johnson v Unisys and/or Eastwood. While this remains a theoretical possibility, it is to be wondered how signifi cant an in-road on this area of law would be since, as pointed out by Lord Steyn, a claimant would most likely face insurmountable diffi culties in proving causation for such claims.

The gloss to the above principles on termination of employment contracts by giving notice or payment in lieu is that it is open to argument that under Singapore law, there may be implied in employment contracts a term that the employer will not exercise the contractual right to terminate the employment contract in bad faith.

This was considered in the decision of Chan Miu Yin at [46]-[59]. The Court there decided, in the context of a striking out application, that it was not plain and obvious that Singapore law does not recognise the existence of an implied term that the employer will not exercise the contractual right to terminate the employment contract in bad faith. The Court in Chan Miu Yin noted the Singapore Court of Appeal decision of Latham Scott v Credit Suisse First Boston [2000] 2 SLR(R) 30 (CA) (Latham Scott), where the Court considered, inter alia, the plaintiffs argument that his employer had acted in bad faith in dismissing him, notwithstanding that the Court noted that the employment contract could have been terminated without any reasons insofar as the notice period was adhered to.20

There are signifi cant problems with the possibility of such an implied duty of good faith. First, it is not clear on what authority the Court in Latham Scott was considering the issue. Second, the issue of exercising a right of termination in bad faith appear to be at odds with the right to terminate without giving any reason. Common law has been slow to extend a doctrine of good faith into contract law, and particularly, the exercise of contractual rights.21 The Court in Chan Miu Yin suggested that this could be overcome by resorting to the implied term of trust and confi dence as was contemplated by Lord Hoffmann in Johnson v Unisys. This seems rather contrived because, as done in Eastwood, the purpose of the implied term is to preserve the continuing relationship which should subsist between employer and employee.22 The exercise of the right to terminate an employment contract is antithetical to that purpose. Why should the implied term of trust and confi dence then bite on the termination of contract? Nevertheless, it remains open under Singapore law that such an implied duty exists,

whether in the form of an implied duty of termination not in bad faith (or a general duty of good faith) or within the scope of the implied term of trust and confi dence.

It should, however, be noted that the Singapore High Court in Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) [2000] 1 SLR(R) 670 (HC) (Noor Mohamed) has held that in the specifi c scenario where an employment contract was terminated in circumstances where redundancy results and that employee would have been entitled to redundancy payments if he had been retrenched on the basis of redundancy, there would be a presumption that the termination was in fact on the basis of redundancy. The employer would then have the burden to rebut this presumption to show that it was not solely or mainly due to such redundancy that the employment contract was terminated. The rationale for this is that it would otherwise be easy for employers to eschew their legal obligations to repay redundancy benefi ts where the employee had been entitled.23 The Court relied on two English authorities, Malton v Crystal of Scarborough Ltd [1971] ITR 106 and Stride v Moore (Metal Spinners) Ltd [1967] ITR 11724 to conclude that the above-stated principles was the law in England, and that Singapore law should follow that. The diffi culty with this reasoning and the reliance on these authorities is that they were decisions of industrial tribunals which based their decisions on the UK Redundancy Payments Act 1965. Specifi cally, s 9(2)(b) of the Act provides for the above presumption: an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so

22Feature


dismissed by reason of redundancy.25 In contrast, no such presumption is provided for in the EA. Section 45 of the EA only states as follows:

No employee who has been in continuous service with an employer for less than 3 years shall be entitled to any retrenchment benefi t on his dismissal on the ground of redundancy or by reason of any reorganisation of the employers profession, business, trade or work.

The authority upon which the Court in Noor Mohamed came to its decision on the presumption of redundancy is, therefore, questionable. While the rationale for adopting such an approach is sensible, ie to prevent employers from circumventing the legislative purpose of the redundancy provision, the reasoning by which it came to adopt such an approach could have instead been based on a purposive reading of the EA. The reasoning process of the Court is signifi cant for employment scenarios that are not governed by the EA. Taking the ratio and the phrasing of the decision in Noor Mohamed on its face, it is plausible to extrapolate the reasoning and reliance on the two English authorities above generally to all employment contracts, whether governed by the EA or otherwise. This is signifi cant because it would be akin to an implied duty of termination not in bad faith (or duty of good faith) discussed above, or perhaps be deemed to be a consequence of such an implied duty, in which case, there would be Singapore authority for arguing that such an implied duty already exists. However, this would be developing employment law on a wrong footing. It appears then that it remains open whether Singapore employment law would develop this area. One would have to be mindful of the approaches taken in Johnson v Unisys and Eastwood discussed above, where their Lordships were cautious not to develop the common law in this regard where Parliament had already specifi cally legislated for it in respect of certain categories of employment contracts.

Summary Dismissal

Unlike termination by notice or payment of salary in lieu, summary dismissal entitles the employer to terminate the employment contract immediately without notice or payment in lieu.26 This is because summary dismissal is predicated on the employees repudiatory breach of the employment contract.

Generally, an employee may be summarily dismissed from employment on the basis of: (i) an express term in the employment contract providing that the employer may do so upon the occurrence of certain stipulated circumstances;27 or (ii) upon the repudiatory breach of the employment contract, which is then accepted by the employer.28

Legal authorities suggest that misconduct, even though not expressly stipulated in the employment contract to be a ground for termination, could justify summary dismissal of an employee on the basis of a repudiatory breach of the employment contract (presumably, the breach of an implied condition of the employment contract). The EA also provides for summary dismissal on the basis of misconduct in respect of employment relationships that are governed by the EA, which will be discussed below.

Summary Dismissal for Misconduct under the Employment Act

If an employment relationship falls within the scope of the EA, the employee may be summarily dismissed on the basis of misconduct pursuant to s 14 of the EA. In this regard,s 14 of the EA states:

Misconduct of employee

14.(1) An employer may after due inquiry dismiss without notice an employee employed by him on the grounds of misconduct inconsistent with the fulfi lment of the express or implied conditions of his service except that instead of dismissing an employee an employer may

(a) instantly down-grade the employee; or

(b) instantly suspend him from work without payment of salary for a period not exceeding one week.

(2) Notwithstanding subsection (1), where an employee considers that he has been dismissed without just cause or excuse by his employer, he may, within one month of the dismissal, make representations in writing to the Minister to be reinstated in his former employment.

(3) The Minister may, before making a decision on any such representations, by writing under his hand request the Commissioner to inquire into the dismissal and report whether in his opinion the dismissal is without just cause or excuse.

(4) If, after considering the report made by the Commissioner under subsection (3), the Minister is satisfi ed that the employee has been dismissed without just cause or excuse, he may, notwithstanding any rule of law or agreement to the contrary

(a) direct the employer to reinstate the employee in his former employment and to pay the employee an amount that is equivalent to the wages that the

23Feature


employee would have earned had he not been dismissed by the employer; or

(b) direct the employer to pay such amount of wages as compensation as may be determined by the Minister,

and the employer shall comply with the direction of the Minister.

(5) The decision of the Minister on any representation made under this section shall be fi nal and conclusive and shall not be challenged in any court.

(6) Any direction of the Minister under subsection (4) shall operate as a bar to any action for damages by the employee in any court in respect of the wrongful dismissal.

(7) An employer who fails to comply with the direction of the Minister under subsection (4) shall be guilty of an offence and shall be liable on conviction to a fi ne not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both.

(7A) Where any amount to be paid by an employer under subsection (4) is not paid in accordance with the direction of the Minister and the employer has been convicted of an offence under subsection (7), the amount or so much thereof as remains unpaid shall be recoverable by the court as if it were a fi ne and the amount so recoverable shall be paid to the employee entitled to payment under the direction of the Minister.

(8) For the purpose of an inquiry under subsection (1), the employer may suspend the employee from work for a period not exceeding one week but shall pay him not

less than half his salary for such period. (9) If the inquiry does not disclose any misconduct on

the part of the employee, the employer shall immediately restore to the employee the full amount of the salary so withheld.

It should be noted that pursuant to s 2 of the EA (defi nition of employee), s 14 of the EA only applies to:

a person who has entered into or works under a contract of service with an employer and includes a workman, and any offi cer or employee of the Government included in a category, class or description of such offi cers or employees declared by the President to be employees for the purposes of this Act or any provision thereof, but does not include

(a) any seaman; (b) any domestic worker; (c) subject to subsection (2), any person employed

in a managerial or an executive position; and (d) any person belonging to any other class of

persons whom the Minister may, from time to time by notifi cation in the Gazette, declare not to be employees for the purposes of this Act

workman means

(a) any person, skilled or unskilled, who has entered into a contract of service with an employer in pursuance of which he is engaged in manual labour, including any artisan or apprentice, but excluding any seaman or domestic worker;

(b) any person, other than clerical staff, employed in the operation or maintenance of mechanically propelled vehicles used for the transport of passengers for hire or for commercial purposes;

24Feature


(c) any person employed partly for manual labour and partly for the purpose of supervising in person any workman in and throughout the performance of his work:

Provided that when any person is employed by any one employer partly as a workman and partly in some other capacity or capacities, that person shall be deemed to be a workman unless it can be established that the time during which that workman has been required to work as a workman in any one salary period as defi ned in Part III has on no occasion amounted to or exceeded one-half of the total time during which that person has been required to work in such salary period;

(d) any person specifi ed in the First Schedule;

(e) any person whom the Minister may, by notifi cation in the Gazette, declare to be a workman for the purposes of this Act.

The phrase managerial or an executive position is not defi ned within the EA. The Ministry of Manpower website, however, discusses the meaning of managers and executives as such:29

Managers and executives are employees with executive or supervisory functions. These functions include the authority to infl uence or make decision on issues such as recruitment, discipline, termination of employment, assessment of performance and reward, or involvement in the formulation of strategies and policies of the enterprise, or the management and running of the business.

They also include professionals with tertiary education and specialised knowledge/skills and whose employment terms are comparable to those of managers and executives. Professionals such as lawyers, accountants, dentists and doctors whose nature and terms of employment are comparable to executives would generally be deemed as such, and hence they would not be covered under the Act.

Junior managers and executives earning $4,500 basic monthly salary and below are only covered partially on the basic payment of salary. All other provisions do not apply to them.

Under the EA, the employer must have conducted due inquiry into the alleged misconduct before the employer can summarily dismiss the employee. It is not clear whether such due inquiry under s 14(1) of the EA would

involve the application of natural justice principles, eg audi alteram partem. Otherwise, it would be merely a unilateral investigation on the part of employer at its sole discretion. There is an old Singapore Court of Appeal decision which has held that natural justice principles do not apply to a dismissal for misconduct, and that decision was in the context of a dismissal under s 14 of the EA.30 However, the Court there31 relied on an old Privy Council decision which arose from Singapore that was decided in a context of an employment contract not governed by the EA or any legislation; the ratio of this decision would at best be that there is no right of natural justice when an employee is dismissed at common law (as opposed to under s 14 of the EA which clearly provides for due inquiry).32 The Singapore High Court also held that due inquiry under the EA did not require that the employer hears the employees defence.33 No authority was referred to in the Courts decision on that point. In contrast, legal authorities from other jurisdictions suggest that legislatively stipulated due inquiries by an employer into alleged misconduct on the part of employees would be subject to natural justice principles.34 The present state of Singapore law on due inquiry, therefore, pales in comparison to that in our sister jurisdictions. The purpose of legislatively requiring due inquiry would be arguably defeated if the employer could conduct its inquiry in any way it deems fi t.

The signifi cance of s 14 of the EA is that a dissatisfi ed employee has the right to complain to the Minister of Manpower. On this, the Singapore Court of Appeal in Lim Tow Peng and another v Singapore Bus Services Ltd [1974-1976] SLR(R) 673 (CA) stated at [17] and [19]:

Section 14 of the Act gave a dissatisfi ed employee the right to complain to the Minister. It was a right to object to an unfair dismissal. The section did not give him any other right. It did not confer on an employee any status. It did, of course, indirectly restrict the employers right to dismiss in that the dismissal could be inquired into and overruled by the Minister if a complaint was made to him. It gave the Minister, not the courts, the power to order reinstatement of the employee; Section 14 of the Act was not mandatory. An employer was not obliged to comply with s 14 but if he disregarded s 14 and dismissed an employee without an inquiry, as was the case here, the dismissal could be inquired into and reinstatement with full pay ordered by the Minister which could not be challenged in any court. The effect of s 14 was that a dismissal without notice before due inquiry was wrongful and not that it was ineffective or null and void

The real benefi t conferred on an employee by s 14 is the

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right to complain to the Minister and the power conferred on the Minister to order reinstatement regarding an unfair dismissal. The appellants in this case, for some undisclosed reason, chose not to exercise this right.

With regard to the above judicial statement, it is diffi cult to appreciate how a dismissal can be wrongful but not ineffective. Perhaps all that such a proposition was meant to do was to nonetheless deem such an acrimonious employment relationship terminated and entitle the employee to certain monetary compensation. Further, it is to be queried if s 14(5) of the EA, ie [t]he decision of the Minister on any representation made under this section shall be fi nal and conclusive and shall not be challenged in any court, is constitutionally valid.35 Such legislative provisions (in contexts other than involving national security, which raises the issue of non-justiciability) remains to be tested. However, s 14(5) of the EA does not preclude the Ministers decision from judicial review by the courts. The Singapore High Court in Stansfi eld Business International Pte Ltd v Minister for Manpower (formerly known as Minister for Labour) [1999] 2 SLR(R) 866 (HC) held at [21] that if the process by which the Minister reaches his decision is in breach of the rules of natural justice, s 14(5) would not be effective to oust the jurisdiction of the court. The Court thus held at [26] that when the Minister investigates into a complaint made under s 14 of the EA, the following rules of natural justice must apply:

fi rstly, that a party is told of the case he has to meet and of the allegations made against him; secondly, that he is given not only a fair opportunity to put his own case, but also a fair opportunity to correct or contradict the case and the allegations of the other party; thirdly, if a signifi cant point is to be taken against him by the tribunal, he should have a similar opportunity.

In that case, the Court held that the procedure adopted by the Ministry of Manpower in investigating into a summary dismissal fell short of these natural justice requirements in that the employer was not told of the employees allegations as it was not given the employees statement and there was no practice of putting one partys allegations to the other; instead, the inquisition was conducted by way of separate interviews with various parties.

Another important observation of s 14(1) of the EA is that the summary dismissal has to be on grounds of misconduct inconsistent with the fulfi lment of the express or implied conditions of his service. (emphasis added) It is to be questioned whether the emphasised words add a gloss to misconduct, ie it is insuffi cient that there was misconduct; the misconduct must have amounted to a

repudiatory breach of condition (express or implied) of the employment contract. There are, therefore, two possible ways to legally analyse plausible grounds for dismissal under s 14: (i) determine if the misconduct in question was the breach of an express or implied condition of the employment contract; or (ii) determine based on legal principles and precedents on the meaning of misconduct and the types of misconduct which could justify summary dismissal. The former approach requires an application of the principles laid down in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 (CA) regarding the determination of whether a term was a condition or not such that the breach of such a condition amounted to a repudiatory breach. This was the approach taken by the Singapore High Court in Cousins Scott William v The Royal Bank of Scotland plc [2010] SGHC 73 at [46]-[68]. Where the contract expressly stipulates a particular ground for dismissal, the issue would then be whether the misconduct falls within the scope of such a stipulated ground such as to justify dismissal.36 The latter approach is where the issue of misconduct is understood in the light of certain legal principles, specifi cally on misconduct in employment relationships; this approach was adopted in the Singapore High Court in Cowie Edward Bruce v Berger International Pte Ltd [1999] 1 SLR(R) 739 (HC), albeit not in the context of the EA. The two approaches are two sides of the same coin, ie the bottom-line under both approaches is that the misconduct must be so signifi cant such as to strike at the root of the contract.37 Yet, it is perhaps helpful to adopt the legal reasoning processes under both approaches together when considering summary dismissal on the basis of misconduct. After all, the determination of whether a term (express or implied) is a condition of the employment contract has to be done with specifi c reference to the fact that it is an employment contract and not any commercial contract. Legal authorities that discuss the meaning of misconduct would, therefore, be signifi cant. It is, therefore, pertinent to consider this below.

Misconduct

Based on a survey of legal authorities from Singapore and other common law jurisdictions, it appears that the following general principles could be gleaned of summary dismissal of employees on grounds of misconduct:

1. A legally valid dismissal of an employee has to be grounded on the employees repudiatory breach of the employment contract,38 or strikes at the root of the contract of employment, that it destroys the confi dence underlying such a contract;39

2. The relevance and effect of the misconduct must

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be judged by reference to its effect on the employer-employee relationship or has to have a suffi cient nexus with the employment relationship;40

3. The misconduct need not be in connection with the

performance of the employees duties;41

4. Generally, conduct inconsistent with the fulfi lment of the employees obligations to the employer would justify dismissal;42

5. If the misconduct in question was prejudicial or likely to be prejudicial to the interests or to the reputation of the employer, the misconduct could warrant dismissal;43

6. If the misconduct arose out of the work situation and had the potential to adversely affect the working environment, such misconduct could justify summary dismissal;44

7. An employer can rely on a certain misconduct in defence of any action for wrongful dismissal even if at the date of the dismissal, the misconduct was not known to him;45

8. It is a matter of degree in each case whether the act complained of is of the requisite gravity to justify dismissal;46

9. Account must be taken of the habits and attitude of the employer at the relevant time and cannot be judged totally in a vacuum.47

A brief survey of the following cases is pertinent to illustrate the above principles. More signifi cantly, it also illustrates how the determination of misconduct, which is a question of fact, can be controversial, contested and unpredictable.

In the Singapore High Court decision of Teo Chew Seng v Singapore Anti-Tuberculosis Association [1968-1970] SLR(R) 653 (HC), the Court held that the employees circulation to the rest of the staff of a circular derogatory of the employers senior executive offi cer (representing that this offi cer was a schemer, fi xer and dishonourable) amounted to misconduct that was incompatible with the continuance of the employees employment; no employer could reasonably have been expected to continue to employ such an employee.

In the Singapore Court of Appeal decision of Port of Singapore Authority v Wallace John Bryson [1979-1980] SLR(R) 670 (CA), the Court held at [8]-[9] that a harbour pilots involvement in a hit-and-run accident (for which he was charged for but his conviction was set aside on appeal) was not misconduct that was incompatible with the due or

faithful discharge of the employees duty qua his employment as a harbour pilot and which could reasonably be said to seriously prejudice or interfere with or detrimentally affect the employers (PSA) interests. (It should be noted that the latter grounds for dismissal was expressly stipulated in the employment contract.) This case perhaps illustrates how subjective such a determination could be, since it is arguable that a harbour pilots recklessness in operating a vehicle could prejudice the reputational interests of the employer.

In the Wellington Court of Appeal case of Smith v The Christchurch Press Co Ltd [2001] 1 NZLR 407 (Smith v The Christchurch Press Co Ltd),48 an employee was held by the Court to have been validly dismissed for sexual misconduct, in that the employee had sexual relations with another employee outside the offi ce during lunch hours. The Court held that it was valid because the misconduct was an issue concerning two employees, arose out of the work situation and had the potential to adversely affect the working environment. The Court further held that actual adverse effect on the employment situation did not need to be demonstrated to provide justifi cation for dismissal.

The Court in Smith v The Christchurch Press Co Ltd considered that [t]o justify dismissal, there had to have been a clear relationship between the conduct and the employment. This includes considerations of:

1. The impact or potential impact of the conduct on the employers business, including the question of bringing the employer into disrepute;

2. The incompatibility of the conduct with the proper discharge of the employees duties;

3. The impact upon the employers obligations to other employees; or

4. The undermining of the trust and confi dence between employer and employee.

In contrast, it was held in the Ontario High Court decision of Reilly v Steelcase Canada Ltd (1979) 26 O.R. (2d) 725 103 D.L.R. (3d) 70449 that an employees adulterous relationship with the wife of a fellow employee was not in modern times suffi cient cause for dismissal, because the interests and reputation of the employer had been unaffected. However, it is signifi cant that the test that the Court applied to determine the issue was whether the conduct in question, for which the employee was dismissed, was prejudicial or likely to be prejudicial to the interests or to the reputation of the employer.

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It is important to bear in mind that the determination of such issues must be made with reference to the specifi c context, taking into account social-political values and social mores and their impact on the particular employer in question. Thus, in Re Board Of School Trustees Of School District No. 34 (Abbotsford) And Shewan et al. [1986] B.C.J. No. 3256 26 D.L.R. (4th) 54 (British Columbia Supreme Court),50 the Court considered it relevant in its determination that the conduct of the employee (in this case, a teacher) would be deemed improper moral conduct in the local community (which the Court noted would have been different if it were a different environment, eg a certain other urban city), that such misconduct would lower the esteem that the community (including the students) held of the employer (the school), because the school set a standard that the community found unsuitable; accordingly, such misconduct justifi ed dismissal.

Yet, in a Supreme Court of Queensland, Court of Appeal decision, Moreton Bay College v Teys BC200811476; [2008] QCA 422,51 the Court held that a principals extra-marital relationship with the mother of a student was not suffi cient misconduct to found a dismissal. (This was a principal of a Christian college.) The Court noted that the employment contract did not specifi cally state such conduct as grounds for dismissal and that the employment contract did not refer to any Christian values or principles.

In another (rather infamous) Australian decision, Orr v University of Tasmania (1957) 100 C.L.R 526, the Court held that the university professors seduction of and sexual affair with a student and the circumstances in which this occurred entitled the university to dismiss him summarily.

In the Supreme Court of New South Wales decision of Randall v Aristocrat Leisure Ltd (2004) BC200406880,52 the Court held that an employees substantial wrongful conduct that is inconsistent with the fulfi lment of his or her obligations to the employer validly justifi es dismissal amounting to an act of repudiation of the employment contract. Further, the employees intentions with regard to the misconduct are important in determining the existence of the misbehaviour that justifi es dismissal.

Conclusion

The signifi cance of the above cases is that they illustrate how thorny issues of employees misconduct can be. While parties may have various reasons for wanting to terminate an employment relationship, it should be borne in mind that termination of employment contract or summary dismissal of an employee for misconduct should be done in accordance with the employment contract. Where

the contract is silent with regard to the specifi c alleged misconduct in question, there may be potential problems of actions of wrongful dismissal or complaints made under s 14 of the EA. Further, the uncertainty of the present state of law in respect of an implied duty on employer to not terminate employment contracts in bad faith or the scope of the implied term of trust and confi dence with respect to termination of employment poses further snares and traps when an employment relationship sours. It would be prudent for employers or employees to obtain legal advice in such contentious circumstances.

Notes

1 See eg Cousins Scott William v Th e Royal Bank of Scotland plc [2010] SGHC 73, where the employer sought to summarily dismiss the employee (so as to avoid paying redundancy payments) after entering into a redundancy agreement with the employee but failed.

2 For employment contracts governed by the EA, this is provided for in ss 10(1)-(2) of the EA. Such notice requirements may be waived by either employer or employee: s 10(4) of the EA.

3 Section 11 of the EA provides for termination of contract without notice by payment of salary in lieu.

4 Th e reasonable period of notice would be determined with reference to various factors including: (i) custom; (ii) nature of employment; (iii) the employees employment length; (iv) the period for which the employee was supposed to have been employed for; and (v) the periods at which the employee was paid his remuneration: see DCruz v Sea eld Amalgamated Rubber Co Ltd [1963] MLJ 154 at 157.

5 Latchford Premier Cinema Ltd v Ennion [1931] 2 Ch 409, where the oral (as opposed to written) termination of parties was mutually agreed to between parties.

6 See Alexander Proudfoot Productivity Services Co Spore Pte Ltd v Sim Hua Ngee Alvin and another appeal [1992] 3 SLR(R) 933 (CA), where the notice was given on the letterhead of an a liated company of the employer and was, therefore, held to be invalid as the employee had no employment/contractual relationship with this di erent entity.

7 Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) [2000] 1 SLR(R) 670 (HC) at [4], albeit in the context of termination and dismissal under the EA.

8 Johnson v Unisys Ltd [2003] 1 AC 518 (HL), citing at [39], Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1 at 39.

9 Johnson v Unisys Ltd [2003] 1 AC 518 (HL) at [40], citing Malloch v Aberdeen Corpn [1971] 1 WLR 1578 (HL) at 1581: At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. Th e servant has no remedy unless the dismissal is in breach of contract and then the servants only remedy is damages for breach of contract.

10 Johnson v Unisys Ltd [2003] 1 AC 518 (HL) at [39], [40].

11 Johnson v Unisys Ltd [2003] 1 AC 518 (HL) at [41].

12 Th is was rst stated by the House of Lords in Addis v Gramophone Company Limited [1909] 1 AC 488 (HL).

Ronald JJ Wong Rajah & Tann LLP E-mail: [email protected]

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13 Johnson v Unisys Ltd [2003] 1 AC 518 (HL) at [45]-[50].

14 Johnson v Unisys Ltd [2003] 1 AC 518 (HL) at [51]-[58].

15 Eastwood v Magnox Electric and McCabe v Cornwall County Council [2005] 1 A.C. 503 (HL) at [29].





20 Latham Scott v Credit Suisse First Boston [2000] 2 SLR(R) 30 (CA) at [44].

21 As noted by the Court in Chan Miu Yin v Philip Morris Singapore Pte Ltd [2011] SGHC 161 at [56]-[57].


23 Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) [2000] 1 SLR(R) 670 (HC) at [7], albeit in the context of termination and dismissal under the EA.

24 Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) [2000] 1 SLR(R) 670 (HC) at [15]-[16]. Th e correct citation for Stride v Moore, however, should be Stride v. Moore (Metal Spinners), Ltd. (1968) 3 I.T.R. 117.

25 K.W. Wedderburn and P.L. Davies, Employment Grievances and Disputes Procedures in Britain (University of California Press, 1964).

26 See Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) [2000] 1 SLR(R) 670 (HC) at [15]-[18].

27 Aldabe Fermin v Standard Chartered Bank [2010] 3 SLR 722 (HC) at [108]-[112].

28 Laws v London Chronicle (Indicator Newspapers) Ltd. [1959] 1 WLR 698 (CA) at 700-702.

29 http://www.mom.gov.sg/employment-practices/employment-rights-conditions/employment-act/Pages/default.aspx.

30 Lim Tow Peng and another v Singapore Bus Services Ltd [1974-1976] SLR(R) 673 (CA).

31 Lim Tow Peng and another v Singapore Bus Services Ltd [1974-1976] SLR(R) 673 (CA) at [23].

32 Vasudevan Pillai and another v City Council of Singapore [1968-1970] SLR(R) 100 (PC).

33 Velayutham M v Port of Singapore Authority [1974-1976] SLR(R) 307 (HC) at [33]: [i]n my view it was not necessary in this case that the plainti should be asked to appear before the meeting and be heard in his own defence.

34 See General Medical Council v. Spackman [1963] A.C. 627 (HL); Bumiputra Commerce Bank Berhad v Mahkamah Perusahaan Malaysia & Anor [2004] MLJ 344 (HC) at [9], [20]-[22]; Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd and another appeal [1995] 2 MLJ 753; Milan Auto Sdn Bhd v Wong Seh Yen [1995] 3 MLJ 537.

35 As the Singapore Court of Appeal in Chng Suan Tze v Minister for Home A airs and others and other appeals [1988] 2 S.L.R.(R.) 525 at [86] declared, all power has legal limits. See also art 93 of the Constitution of the Republic of Singapore: Th e judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force.

36 Port of Singapore Authority v Wallace John Bryson [1979-1980] SLR(R) 670 (CA), where the employment contract expressly stipulated as grounds for dismissal, misconduct in such a way as to seriously prejudice, interfere with, or a ect the interests of the Authority to its detriment (see [5]).

37 Cowie Edward Bruce v Berger International Pte Ltd [1999] 1 SLR(R) 739 (HC) at [39].

38 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 (CA).


40 Smith v Th e Christchurch Press Co Ltd - [2001] 1 NZLR 407 (Court of Appeal Wellington); Denham v. Patrick [1910] O.J. No. 90 (Ontario High Court of Justice); Cowie Edward Bruce v Berger International Pte Ltd [1999] 1 SLR(R) 739 (HC) at [40].


42 Randall v Aristocrat Leisure Ltd (2004) BC200406880 (Supreme Court of New South Wales) at [452].

43 Cowie Edward Bruce v Berger International Pte Ltd [1999] 1 SLR(R) 739 (HC) at [39]; Reilly v Steelcase Canada Ltd. (1979) 26 O.R. (2d) 725 103 D.L.R. (3d) 704 (Ontario High Court Of Justice). Th is was also an expressly stipulated grounds for dismissal in Port of Singapore Authority

Documents

Singapore Law Gazette (December 2013)