Both Monoar’s and Johirul’s cases ended unhappily with loss of their jobs and mandatory repatriation. The other similarity is that both their cases can be characterised, in our view, as wrongful dismissal.
Wrongful dismissal (or wrongful termination) is not a subject that we have much written about before. However, many cases that TWC2 assists workers with have commonalities with Monoar’s and Johirul’s; it is a far more common problem than it first appears.
What is wrongful dismissal?
Section 14(2) of the Employment Act says that being wrongfully dismissed is to be “… dismissed without just cause or excuse by his employer”.
The Tripartite Guidelines on Wrongful Dismissal, published on or around 1 April 2019, maps out various scenarios that would constitute wrongful dismissal. In paragraph 9, it says,
Wrongful reasons include discrimination, deprivation of benefit, or to punish an employee for exercising his employment right. 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.
Paragraphs 11 and 12 further explain that dismissing an employee
- to deprive the employee of benefits/entitlements the employee would otherwise have earned, or
- to punish the employee for exercising his or her employment right, e.g. filing a mediation request with TADM, or declining a request to work overtime
are examples of wrongful dismissal.
Most employment contracts — and the Employment Act — provide for notice periods for termination. Typically, no reason needs to be given. The guidelines therefore say that if proper notice is given by the employer to the employee, dismissals with notice are presumed not to be wrongful. The burden of showing that the employer’s motive for dismissal was unjust lies with the worker.
The redress for wrongful dismissal is given in Section 14(3) of the Employment Act. The Employment Claims Tribunal may direct the employer
- to reinstate the employee in the employee’s former employment; and
- to pay the employee an amount equivalent to the wages that the employee would have earned if the employee had not been dismissed; or
- in a claim for compensation, direct the employer to pay, as compensation to the employee, an amount of wages determined by the Tribunal.
It should also be noted that under Section 2 of the Employment Act, the meaning of the word dismissal “includes the resignation of an employee if the employee can show, on a balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of any conduct or omission, or course of conduct or omissions, engaged in by the employer”. Such situations are known as “constructive dismissal”.
In Monoar’s case…
In Monoar’s case (see Part 2), soon after joining the company, he was presented with a demand to agree to (a) a bond of two years, and (b) a salary deduction of $200 a month for the first eleven months. These terms had never been discussed with him prior to his agreeing to take the job. When he resisted these demands, the company said they would cancel the work permit.
Monoar had a statutory right to agree or not agree to any modification of the terms of employment. His freedom to not agree is implicit in the provisions of the Employment of Foreign Manpower (Work Passes) Regulations 2012. Paragraph 6A of Part IV of the Fourth Schedule of these Regulations says
The employer shall not … reduce the foreign employee’s basic monthly salary, fixed monthly allowances, rate for overtime payment or daily basic rate of pay to an amount less than that declared as such in the work pass application … or increase the amount of fixed monthly deductions… except with the foreign employee’s prior written agreement.
Therefore his freedom to not agree is a statutory employment right. And since the employer penalised him (cancelling his work permit) as a result of his exercising this statutory right, his dismissal, in our view, was wrongful. See also the comment in blue on why we would argue that a freedom to agree or not agree to a salary reduction should be seen as a statutory right.
A variety of other infringements can be seen in the case too.
Deception and contract substitution
It is more than plausible, considering how soon after starting employment the company demanded changes to the terms of employment, that the company had intended this move at the time of recruiting Monoar. If so, there would have been deception in the course of recruitment, manifesting in an attempt at contract substitution.
It is interesting that the word “consent” does not appear in Section 38 of the Employment Act, which touches on overtime hours, and yet the Tripartite Guidelines recognise that an employee has a “statutory right” to give or withhold his agreement to work overtime.
The words “prior written consent”, on the other hand, are incorporated into the paragraph in the Employment of Foreign Manpower Regulations that deals with reduction of salary below that stated in the IPA. All the more then, we would argue, the employee’s freedom to withhold consent for a pay cut should be seen as a statutory right, violation of which should lead to a finding of wrongful dismissal.
Such acts are indicators of human trafficking, as stated in the United Nations’ Palermo Protocol. In this International Labour Organisation (ILO) document on forced labour, it is stated on page 3 under “Contract substitution/deception” that employers should “make sure to respect the terms of employment that the worker has agreed to.” In this other ILO document on Operational indicators of trafficking in human beings, page 4 lists various forms of deception, including “deceived about wages/earnings”.
Abuse of vulnerability
The employer was also engaging in abuse of vulnerability — another trafficking indicator — because the company was trying to leverage its power to cancel the work permit and send Monoar home, in order to compel him to accept the inferior, substituted terms.
Section 3(1) of Singapore’s Prevention of Human Trafficking Act also specifies that fraud, deception and the abuse of the position of vulnerability of the individual constitute the offence. Punishment is severe:
- fine up to $100,000, and
- imprisonment up to 10 years, and
- caning up to 6 strokes.
Clawing back cost of quarantine
The amount that the company wanted to deduct from Monoar’s salary was $2,200. This is suspiciously similar to the cost of quarantine for Monoar post-arrival in Singapore. The Ministry of Manpower (MOM) had issued a directive that employers should not attempt to recover this cost from workers. See this link and our article Employers claw back cost of stay-home period from arriving workers.
All these acts are wrongful — deception, constract substitution, abuse of vulnerability and clawing back the cost of quarantine. When Monoar was dismissed, it was for all these unjust reasons.
In Johirul’s case…
In Johirul’s case (see Part 1), he was aggrieved that the work permit application submitted by the new employer to MOM contained salary deductions that he had not agreed to in prior discussions he had with the company. He told the company that he would not agree to such modified terms. The company then said they would cancel the job and demanded $1,100 plus the cost of Covid-19 tests and airfare as compensation.
In effect, the employer was punishing him for repudiating terms of employment that he had never agreed to. In our view, this is wrongful dismissal.
Other infringements that we can see include:
False declaration to the authorities
By submitting to MOM a work permit application containing salary deductions that had not been agreed with Johirul, the company was falsely declaring to MOM that the salary structure described in the application was the mutually agreed basis for employment. False declaration is an offence in law.
Deception and contract substitution
Since we’ve described this above, we don’t need to detail this again here. The deception is stark. They agreed on one thing with Johirul and submitted a work permit application to MOM with different salary terms, which Johirul only found out about later.
Abuse of vulnerability
Likewise, by threatening to cancel Johirul’s work permit and send him home if he refused to accept the substituted terms of employment, the company was abusing Johirul’s vulnerability.
Another indicator of human trafficking and forced labour is “threat of denunciation to authorities”. See page 4 of ILO’s Operational indicators of trafficking in human beings.
In Johirul’s story, there is the threat by the employer that he would be reported to the police. We don’t know whether the employer really carried out this threat, but we do know that on a day when Johirul was at MOM speaking to an MOM officer, the employer messaged Johirul to claim that he had made a police report — something about him being a “missing worker”.
Another way to look at the demand for $1,100, to be paid within two hours, and threat of making a police report should he fail to pay up, is to see it as an attempt at extortion. Section 383 of the Penal Code says:
383. Whoever intentionally puts any person in fear of any harm to that person or to any other person, in body, mind, reputation or property, whether such harm is to be caused legally or illegally, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.
We’d argue that the employer was putting Johirul in fear of loss of reputation (denunciation to the police) and harm to his body and mind (arrest by the police) with the aim of getting Johirul to deliver property (money) to the employer.
Given all these circumstances, Johirul’s dismissal was clearly for wrongful motives.
Yet, neither Johirul nor Monoar filed wrongful dismissal claims
In the end, neither man filed wrongful dismissal claims at MOM or TADM (Tripartitie Alliance fo Dispute Mediation), even though TWC2 caseworkers weighed the possibilities with them.
Among the leading discouraging factors were:
1. The men’s initial contact with MOM/TADM officers gave them the impression that the official attitude was that employers have vast discretionary power and foreign workers should accept that situation, and that if employers want to cancel a work permit and send a worker home, the worker should resign himself to that fact;
2. From TWC2’s limited experience with MOM/TADM and wrongful dismissal, our sense is that they tend to resist recognising such cases, so there is a strong possibility that even if Johirul or Monoar wanted to file such claims, MOM/TADM might not accept them, thus closing the door on process (but see footnote, where we argue that MOM/TADM would be exceeding their powers if they closed the door on process);
3. Even if MOM/TADM accepted their cases, the resolution of the matter would stretch months;
4. During this time, if their work permits were cancelled, they would be put on Special Passes, a condition of which would be that they would not be allowed to work;
5. Even if they won their cases, there’s no statutory provision that they would be given a right to get another job without being sent home first.
In other words, even in the best scenario, they would be in limbo and jobless for months, at the end of which they might get a little compensation, but might still be sent home. Real justice will be elusive because the process is designed to make it painful to file claims.
How to fix the problems revealed by Johirul’s and Monoar’s cases
Once again, we see that the power to repatriate workers after cancellation of work permits is the fundamental problem. Repatriation is required by MOM and this augments the threat that employers wield over workers, since it can seriously affect a worker’s livelihood for many months post-repatriation, or compel him to pay heavily to another agent to find another job. This power given to employers tempts them to try contract substitution, deceptive recruitment and even extortion in order to get their way. Giving employers a free hand to dismiss workers, even wrongfully and with no restraint, is a case of the State enabling contract substitution, deceptive recruitment and extortion.
Moreover, access to justice must also not entail many months of unemployment fighting the case, so that justice does not come with an unacceptably high and unjust cost.
We have some simple recommendations:
1. MOM/TADM should not exceed their authority and reject workers’ attempts to file claims.
2. MOM/TADM officers should explain to workers consulting them that filing for wrongful dismissal is an avenue they can consider and should not be too quick to impress on workers that their employers have extensive discretion.
3. De-link repatriation from cancellation of work permits.
4. All workers whose work permits are prematurely cancelled should get a right to look for jobs locally without first being sent home.
5. Special Passes should not forbid workers from looking for and taking up new jobs.
Can MOM/TADM reject a worker’s attempt to file a wrongful dismissal claim?
Technically, filing a claim is actually filing a mediation request over an employment dispute under the Employment Claims Act.
Section 3(2)(ca) of the Employment Claims Act states that claims for wrongful dismissal disputes should be filed not later than one month after the date of the dismissal of the employee.
Section 3(4)(a) of the same Act describes when the Commissioner may refuse to accept a mediation request. It does not give the Commissioner much latitude. Basically, there are only two permissible grounds for rejecting a mediation request.
- If the claim amount exceeds the jurisdiction of the Employment Claims Tribunal ($20,000); or
- If the application does not meet the allowable definition or prescribed form.
The definition of “wrongful dismissal dispute” is stated in the Third Schedule of the Employment Claims Act as “Any dispute, in relation to which an employee may lodge a claim mentioned in section 14(2) of the Employment Act, over whether the employee has been dismissed without just cause or excuse by an employer“. It mirrors the language of the Employment Act.
As can be seen from Monoar’s account of the question posed to him by the MOM officer he met: “Do you have any proof?”, MOM officers may be applying an unjustifiably high bar for accepting claims. They seem to be asking him to prove that there was wrongful dismissal when the law only requires the claimant to show that there was a dispute. Nor it is for TADM to judge whether the dismissal was wrongful, in any case. It’s a matter for the Employment Claims Tribunal to decide — if the case gets that far.
Evidence (and this includes oral evidence) is ultimately to be weighed by the Employment Claims Tribunal; it is not within the remit of MOM/TADM officers or even the Commissioner to assess evidence for their cogency or weight. It is irrelevant in any case, since the request is for mediation, not for judgement.
We’d argue that MOM is exceeding its authority if it sets an unreasonably high bar for accepting mediation requests for wrongful dismissal claims.