Under what conditions may an employer have a legitimate reason to collect information

Both employer and employees have the right to contractually terminate their relationship, however, incidents have occurred wherein an employee feels that he has been wrongfully dismissed. In this article, we will discuss dismissals, the validity of dismissals and the options an employee has should such a situation arise.

A dismissal is the act of ordering or allowing someone to leave their position, and occurs when your employer has terminated your contract of service or when they have asked you to resign involuntarily. Whilst a dismissal may occur with or without notice, it is important to note that misconduct is the only legitimate reason for dismissal without notice.

A dismissal will be considered valid if it is due to reasons such as:

• Unsatisfactory work performance

When an employee cannot or does not perform up to the standard which is required of them

• Misconduct

When an employee engages in inappropriate work conduct

• Redundancy

When an employee’s job requirements no longer exists due to changes in the company or automation

However, if an employee is dismissed or asked to resign by their employer without sufficient or just cause, a dismissal may be considered wrongful.

The Tripartite Guidelines on Wrongful considers dismissals to be wrongful when they occur due to:

• Discriminatory reasons based on gender, race or age
• Deprivation of an employee’s benefits or entitlements
• Punish an employee for exercising employment rights due to an employee

If you are working in Singapore, it is likely that your employment is covered by the Employment Act, the Ministry of Manpower (MOM) expects organisations to comply with the Tripartite Guidelines on Wrongful, and have warned that they will take action against those who do not.

If an employee feels that their dismissal is unfair or wrongful, they should firstly, scrutinize their employment contract to ensure that they have indeed, been wronged. If so, an unfairly dismissed employee has the below options:

Option 1: Try to seek internal channels in order to resolve the matter

Employees should, first appeal to their Human Resources  (HR) department against their unfair dismissal. Arrange to meet with your HR department, bring documents that justifies 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, after all, the goal is to get reinstated in the company!

Option 2: Lodge an official Complaint

Depending on the reason you have been dismissed, you may choose to lodge an official complaint.

• Submit an appeal to the Ministry of Manpower

If you feel that you have been wrongfully dismissed or if you have been denied re employment due to your of age, you may appeal to the Ministry of Manpower via: https://form.gov.sg/#!/5c656ce2a1770a0010563ad4

• File a claim at the Alliance for Dispute Management (TADM)

From 1 April 2019, employees will be able to resolve wrongful dismissal disputes through TADM. TADM was established in order to provide advisory and mediation services prior to a claim being heard at the Employment Claims Tribunals (ECT). You will have to first make a claim at TADM before any claims can be heard at ECT. Most employees in Singapore will come under the purview of TADM with the exceptions of domestic workers, seafarers and public officers. However, there is a minimum employment period for the following:

• 6 months for managers or executives who have been dismissed without notice
• 3 months for those who have been dismissed whilst pregnant

Depending on whether you are part of a union or not, there are 2 different procedures to file a claim:

• Non-union members

Non-union members must file a claim for mediation with TADM and claims must be filed within 1 month of the last day of employment or, if you were wrongfully dismissed during your pregnancy, within 2 months of the birth of your child.

Non-union members may file a claim online with TADM using Singpass or via an appointment should Singpass not be available to you. The claim must be supported with documents such as your employment contract, payslips and CPF statements, letter of resignation or termination as well as any other documents that can support your claim.

• Union members

Union members may approach your union to file a claim for mediation. Claims must be filed within 1 month of the last day of employment and NTUC members must have joined at least 6 months prior to filing a claim.

TADM will then determine if there is a case for wrongful dismissal, if so, a mediation session will then be arranged. Mediation is conducted by TADM’s professional mediators and is strictly between you and your employer.

If the mediation is successful, a settlement agreement will be issued by the mediator which can be registered as a binding order. This must be done within 4 weeks under the Community Justice and Tribunals System (CJTS) and will cost you a registration fee of $10. The employer will pay the stipulated settlement amount to you within 2 weeks or by a mutually agreed date. Upon receiving the amount, you will have to inform TADM via an Updating Payment Status of Settlement Agreement form or the ECT Order form. In the event your employer does not pay you, TADM will make a report to MOM on your behalf.

If the mediation session fails, you may then choose to bring the case to Employment Claims Tribunals (ECT).

ECT will provide for further mediation in the event that mediation at TADM fails. A TADM mediator will provide you with a Claim Referral Certificate to file an ECT claim. This claim must be filed within 4 weeks of receiving the certificate.

ECT Mediation can result in these possible orders:

• Reinstatement by the employer and the employer to pay income lost from the date the wrongful dismissal occurred to the date of reinstatement
• Compensation by the employer for wrongful dismissal
• Claim to be dismissed

In the event that your claim is unsuccessful after ECT mediation, your final option is to consult a lawyer and file a civil claim in the Magistrate’s court. At Emerald Law, we have lawyers who are experienced in handling employment related matters in Singapore. Contact Us today to schedule a free consultation where we can advise you on your situation and provide you with solutions.

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