This opinion commentary is drawn from TWC2 volunteers’ experience with casework
In Singapore, the Tripartite Alliance for Dispute Management (TADM) undoubtedly plays a central role in resolving disputes between employers and employees. The Employment Claims Act 2016 requires that various classes of employment disputes, including those for unpaid wages and wrongful dismissal, be submitted for mediation before an employee can lodge her claim at the Employment Claims Tribunal (ECT). TADM is, as far as we are aware, the only organisation which is approved to perform such mediations. Should the mediation fail to result in a settlement, TADM is responsible for issuing a “claim referral certificate” to the employee, which the employee must submit to the ECT when filing her claim there.
Apart from mediating employment disputes, TADM also offers employment advisory services to employees and the self-employed. Unlike mediation, taking employment advice from TADM is not a compulsory stage in the dispute resolution process. However, from our experience helping migrant workers with salary issues it appears that virtually all workers who submit disputes to TADM for mediation are given an initial appointment for “Employment Advisory” consultations, whether they seek employment advice from TADM or not. Currently, for workers who are locked-down in dorms or other quarantine facilities and unable to go to TADM in person, booking an appointment on TADM’s e-Services website for an “Employment Advisory” consultation is the only practical means they have to initiate mediation at TADM, as they lack the SingPasses (government-recognised electronic identity) necessary to file a claim for mediation online.
So, what’s the problem?
Viewed from one perspective, having the opportunity to get advice seems to be an unqualified benefit for any employee, particularly for low-wage migrant workers. Few are fully aware of their employment rights and what they are entitled to in terms of pay and benefits such as paid sick leave. Many are also, to put it diplomatically, “numerically-challenged” and working out how much they are owed can and usually does involve complex calculations which they aren’t able to perform correctly.
But consider the inherent conflicts that could arise in a dispute resolution mechanism where the same organisation is both an employee’s advisor on a particular dispute as well as being the mediator between the employer and employee in the very same dispute.
- What assurance can an employee have that TADM, when dispensing advice, will not seek to minimise the issues or amounts in dispute so as to make the overall dispute easier to mediate and/or more likely to settle? The mediation and settlement of employment disputes is TADM’s raison d’etre. Can TADM be absolutely uninterested in its own success rate in resolving disputes, however “success” might be measured?
- As an employee’s advisor, is TADM not then under a duty to act in the employee’s best interests? How then do employers feel about being mediated by an organisation that is also their employee’s adviser on the very dispute being mediated? How does TADM manage to both act in employee’s best interest while advising and yet also maintain neutrality during mediations? Or would neutrality prevent TADM from advising employees of rights that the employee does not yet know about and therefore does not assert? How would that square with a duty to act in the employee’s best interests?
- What forms of “advice” are given? Could it extend to advising an employee that the claim is unlikely to succeed, thus discouraging the employee from initiating a claim? Would a view that a claim is unlikely to succeed influence, even if unconsciously, the conduct of subsequent mediation if the employee persists in pursuing her claim?
- To err, as they say, is human. It would be unrealistic to expect that neither employees nor TADM would ever make any mistakes in calculating how much is to be alleged as owed. If the mistake is the employee’s, should TADM as adviser point out the mistake to the employee, or should it as neutral mediation refrain from pointing out the error so as not to give an advantage to the employer? Conversely, if the mistake was made by TADM, is it under a duty to disclose this to either or both of the parties? What if parties had already reached a settlement based on erroneous numbers which TADM has assisted with calculating? If parties are unable to settle and a claim referral certificate is issued, is TADM under a duty to issue a corrected certificate? Under what circumstances will it do so? Under what circumstances SHOULD it do so?
One might go on, but it should be clear enough by now that it is fundamentally improper for any one party to be both adviser and mediator. If TADM’s main role is to act as mediator, then the idea of TADM offering “employment advisory” services can be described as ill-conceived.