The Law of Dismissal of Employees in Singapore (including grievance handling and discipline)

Introduction:

One of the biggest changes in the forthcoming amendments to the Employment Act come 1 April 2019 would be that the senior management, up to and including CEO, CFO, COO and HODs etc., will be able to seek relief if they are dismissed “without just cause or excuse”.

Under the Employment Act and for that matter the Industrial Relations Act do not expressly create a duty on employers not to dismiss without “ just cause or excuse”. Under section 14(2) of the Employment Act, where a relevant 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. The Minister may either order the employer to reinstate employment and order payment of back pay or direct the payment of compensation.

It has since been announced that wrongful and unfair dismissal will be heard by the Employment Claims Tribunal instead of the Minister of Manpower, as provided for under the current law. How would the prescribed claims limit under the Employment Claims Tribunal then be applied to dismissal claims once the newly amended legislation is implemented? And in cases of dismissal without just cause or excuse, would senior employees have any recourse to the ordinary civil courts if their claims exceed the Employment Claims Tribunal jurisdiction caps?

The key question lies in whether the prescribed claims limit of $20,000 (or $30,000 in union cases) will be raised. If it will not, this may mean that the potential impact of the extension of the wrongful and unfair dismissal remedy to senior management, and for that matter highly paid employees, would be of limited significance to this category of employees. 

 Therefore, what should HR practitioners do in view of the forthcoming changes? Can HR practitioners use the same approach to dismissing the employee?
Also, it is important to manage employee separation with care regardless of whether the employee is leaving because of resignation, redundancy, retirement, death, frustration, the expiry of contract or dismissal. Firstly, it minimises the risk of legal problems and secondly, it protects the reputation of both the business and the employer. Employees who leave employment on a pleasant note are more likely to recommend their previous employer thus building a branding of the employer of choice.

Employers should use fair procedures when terminating employees as replacing employees is expensive and claims for unfair or unlawful dismissal can be costly and time-consuming to defend. Also, what may be seen as an unfair process can affect workplace morale.  An insufficient appreciation of the difference between a termination of an employment contract and a dismissal of an employee from his employment is also contributing to this escalation as this is deducible from the nature of claims filed and their chances of success at the end of most litigation.

At the end of this workshop, delegates can be assured that they will be more competent in their understanding of grievance and disciplinary handling, as well as the dismissal of an employee in Singapore.

Course Outline:

A competent HR practitioner must have the knowledge and skills in the following:

1. Grievance-Handling

• What constitutes a misconduct.
• Understanding the grievances of employees.
• Differences between grievances, complaints and whistle-blowing.
• Consequences of mishandling grievances.
• Handling grievance effectively.
• Company’s grievance-handling procedure.

2. Misconduct

• What constitutes a misconduct.
• Minor and major misconduct.
• Policy on the code of conduct.
• Whether misconduct constitutes a breach of contract.
• Disobedience.
• Negligence or incompetence.
• Committing criminal offences.

3. Discipline and Disciplinary Action:

• Definition of discipline.
• The need to discipline.
• Progressive discipline.
• Company’s code of conduct.

4. Modes of Cessation of employment contract

• Performance (Retirement).
• Agreement (termination clause, retrenchment, the expiry of fixed term contract ).
• Repudiatory breach ( misconduct, fail probation, bankruptcy).
• Frustration ( rest in peace ).
• Remedies for wrongful dismissal.
• Reinstatement or pay for damages.

5. “Dismissal”

• Employee as defined in section 2 ( statutory and common law ) of the Employment Act.
• Definition of dismissal.
• Definition of statutory and common law ( PME ) employee.
• Contract of service versus contract for service.
• Differences in dismissal between statutory and common law employees ( those earning below a basic salary of $4500 and those above a basic salary of $4500 ).
• Differences between dismissal with notice and dismissal without notice.

6. The test to be applied for Misconduct

• Implied terms.
• Express terms.
• The duty of the employer
• The duty of the employee
• Illustration of misconduct
• Dismissal is the employer’s prerogative.

7. Unsatisfactory work performance

• Employment contract undermines by poor work performance.
• Misconduct to be differentiated from poor work performance.
• Evidence of shortcomings.
• Process for dismissal for poor work performance.
• Bearing on Retirement and Reemployment Act.

8. Employee committing a criminal offence at the workplace/outside the workplace

• Solutions to an employer’s dilemma over an employee who committed a criminal offence.
• Standard of proof btw required in judicial court and disciplinary inquiry.
• Nexus test to be applied to an employee’s job.
• Criminal offence versus breach of company’s rules and regulations.
• Private conduct versus non-private conduct.
• Doctrine of autrefois acquit and autrefois convict.
• The need for a disciplinary inquiry.
• How to handle employee released on police’s or court’s bail

9. Suspension, investigation and disciplinary inquiry

• Disciplinary inquiry process with trade union / without trade union.
• Differentiation between statutory and common law employee.
• Suspension with pay or without pay and duration of the suspension.
• Investigation to the complaint.
• Conducting the disciplinary inquiry.
• Framing disciplinary charges.
• Disciplinary inquiry hearing procedure.
• Recognition of medical certificate from private versus public clinic doctors in and outside Singapore.
• Termination whilst on hospitalisation leave.
• Eligibility of public holidays for General Election and Presidential Election.

Methodologies

Lecture and case studies.

Who should attend?

Human Resource practitioners, Industrial Relations practitioners, lawyers, in-house legal counsels, line managers, executives and any other persons keen to acquire a good understanding of the law of dismissal of employees in Singapore.

Workshop Registration

Please click here to register.