Know what constitutes a wrongful dismissal

Stay abreast of the latest regulations, summed up by experts from Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP).

As an employer, you may have the right to contractually terminate the employment relationship under the Employment Act (EA) but what happens if your employee believes that he or she has been wrongfully dismissed?

To help address such instances, the Ministry of Manpower, National Trades Union Congress, and the Singapore National Employers Federation jointly released the Tripartite Guidelines on Wrongful Dismissal on 1 April 2019. The Guidelines set out what constitutes wrongful dismissals under the EA, which we have summed up below.

Circumstances where dismissals with notice are wrongful

• Dismissing an employee because of discrimination (e.g. against the employee’s age, race, gender, religion, marital status and family responsibilities or disability) is wrongful.

• Dismissing an employee to deprive the employee of benefits/entitlements the employee would otherwise have earned is wrongful.

• Dismissing an employee to punish the employee for exercising his or her employment right, e.g. filing a mediation request with the Tripartite Alliance for Dispute Management, or declining a request to work overtime, is wrongful.

• If an employer gives a reason for dismissal with notice, but the reason given is proven to be false, the dismissal would also be wrongful.

To succeed in claiming that a dismissal with notice is wrongful (where no reason is given for the dismissal), an employee must substantiate a wrongful reason for the dismissal.

Circumstances where misconduct or poor performance are cited

• Misconduct is the only legitimate reason for dismissal without notice. An employer may, after due inquiry, dismiss an employee without notice for misconduct. Misconduct includes, but is not limited to, theft, dishonesty or disorderly conduct at work, insubordination, and bringing the organisation into disrepute.

• In a case of poor performance, an employer cannot dismiss without notice. The employer would need to substantiate if poor performance is cited as the reason for dismissal with notice.

Where misconduct or poor performance is cited as the reason for the dismissal, the employer bears the burden of proving that ground for dismissal. The dismissal is considered wrongful if the employer is unable to do so.

Circumstances where the right to contractually terminate is invoked

As both employee and employer have a right to contractually terminate employment with notice, dismissals with notice are presumed not to be wrongful.

For avoidance of doubt, redundancy is another legitimate reason for dismissing an employee with notice. Redundancy occurs when the employer has excess manpower, the company is undergoing restructuring, the old job no longer exists, or the employee’s job scope has changed.

Knowing what constitutes a wrongful dismissal will help you prevent and minimise disputes.

---

For more information, visit mom.gov.sg.

This article appeared in Human Resources, Singapore, May edition.Read it here: