A TWC2 volunteer updates a worker’s file with new information provided by the worker on his case.

A letter in the Straits Times Forum on 15 July 2021 raised the issue of how disadvantaged and discouraged workers are when filing claims of wrongful dismissal. This letter was from the Association of Women for Action and Research (AWARE).

The Ministry of Manpower (MOM) and associated parties gave a reply (28 July 2021) which only served to demonstrate what was wrong about the system — the body that was supposed to mediate disputes in a fair way was acting as a gatekeeper and making decisions as to whether a claim could be allowed to proceed. TWC2 has long observed that the assigned mediator, the Tripartitie Alliance for Dispute Management (TADM), tended to exceed its powers.

TWC2 wrote to the Straits Times Forum and our letter was published on 3 August 2021. Below is TWC2’s letter. Further down is the reply by MOM and associated parties to our letter, and after that, the preceding letters from MOM (and others) and AWARE.

3 Aug 2021

Straits Times Forum

TADM’s role in wrongful dismissal claims is to mediate, not adjudicate

We refer to the letter, “Wrongful dismissal claims taken seriously and investigated” (July 28).

The letter suggests a misapprehension of the scope of the powers vested in the Tripartite Alliance for Dispute Management (TADM), resulting in a distortion of process.

The statutory framework for the resolution of employment disputes is set out in the Employment Act and Employment Claims Act.

The Employment Act allows an employee who “considers that he has been dismissed without just cause or excuse” to lodge claims at the Employment Claims Tribunals (ECT) subject to having first submitted a mediation request to the Commissioner for Labour.

The commissioner can reject a request only if the submission fails to comply with certain technicalities, the prescribed form, or if the claim amount exceeds the prescribed claim limit of $20,000.

Otherwise, the commissioner should send the matter to an approved mediator – TADM – for mediation.

TADM mediates these disputes, and if mediation fails to resolve the dispute, the matter goes to the ECT for adjudication.

The division of functions between the commissioner, TADM and ECT is thus clear.

However, the letter’s authors, who represent the key partners in TADM, seem to view TADM as having a role other than as mediators. They say, for instance, that “the majority of employers have acted responsibly”, a statement that is possible only if TADM sees itself as authorised to make such judgments.

TWC2’s (Transient Workers Count Too) observation is that TADM acts as a gatekeeper, not as a mediator, when it makes decisions about the merits of a claim and whether or not it can go forward.

The letter acknowledges as much when it says “about three in four wrongful dismissal claims lodged in 2019 and last year were unsubstantiated, while the rest were resolved either through mediation or referred to the (ECT) for settlement. In the unsubstantiated cases, TADM found that employers had sufficient cause to dismiss employees for reasons such as poor work performance”.

Is TADM deciding on the merits of cases when it is not its role to do so?

TADM’s role is to mediate, no more and no less. It does not fall to TADM to assess, decide, or judge whether any employee has been wrongfully dismissed, or to call upon employees to “substantiate” their claims. The adjudicating role rightfully belongs to the ECT under the law.

Alex Au
Vice-president
Transient Workers Count Too

-:-:-:-

This was the letter by MOM and associated parties in response to TWC2’s letter above. It was published in the Straits Times on 12 August 2021. What it does not address are:

  • Whether TADM can refuse to take on a case if it assesses a party’s case to be of insufficient merit — which workers report is the answer they are given, and which in effect means they are closing an avenue of redress;
  • Whether the standards of evidence demanded by TADM is essentially impossible in many cases — thus making the effect one of denial of justice (the original issue raised by AWARE)
  • Whether TADM can refuse to forward a case to the ECT if it — and it alone — assesses a case to be of insufficient merit, in which case it does act as a gatekeeper.

The letter tries to justify TADM’s role in “assessing” cases. What it does not say is whether assessment is made to assist parties better in the mediaton process (e.g. by giving parties some idea of their chances of success if they stand their ground and take the matter all the way to the Employment Claims Tribunal) or is made to shut off the process to what TADM, and TADM alone, considers undeserving cases. The latter, we argue, is what actually occurs and would overstep the law.

12 August 2021
Straits Times Forum

TADM has to assess and mediate claims before cases go to tribunal

We refer to Transient Workers Count Too’s (TWC2) letter “TADM’s role in wrongful dismissal claims is to mediate, not adjudicate” (Aug 3).

TWC2 said that the role of the Tripartite Alliance for Dispute Management (TADM) is solely to mediate wrongful dismissal claims, and not to adjudicate or assess the validity of such claims.

This is misleading. While TADM cannot adjudicate the claims under the law, assessment is an important aspect of mediation to ensure fair settlement outcomes.

In handling wrongful dismissal claims, TADM verifies the facts provided by both employers and employees, who may have different views of the dismissal.

TADM then advises parties on its assessment whether the dismissal is likely to be wrongful, based on the Tripartite Guidelines on Wrongful Dismissal and precedents set by the Employment Claims Tribunals (ECT).

This assessment helps parties to focus on the case facts and ensure that mediation is done in a focused and fruitful manner.

If the mediation is successful, both parties will sign a settlement agreement. If not, the employee has the option of pursuing the case at the ECT for adjudication.

Last year, about 75 per cent of wrongful dismissal claims lodged were resolved at TADM, with two-thirds concluded within two months. The remaining cases were referred to the ECT for adjudication.

This outcome demonstrates the trust placed by employers and employees in TADM as an efficient and fair avenue to resolving dismissal claims.

TADM’s assessment for the vast majority of wrongful dismissal cases has been aligned and consistent with the eventual outcomes at the ECT.

The majority of such claims adjudicated at the ECT involved unsubstantiated wrongful dismissal claims, and these cases were then dismissed at the ECT or withdrawn by the claimants.

Conversely, a minority of claims referred to the ECT were due to employers’ refusal to provide reasonable compensation to employees, and such employers tend to lose their cases at the ECT as well.

Therefore, the tripartite partners are of the view that TADM’s current model of managing wrongful dismissal claims is balanced, effective and expeditious.

It would be counterproductive and time-consuming if every claim were to be adjudicated at the ECT.

It would only serve to lengthen the process of redress for wrongfully dismissed claimants, and unnecessarily burden employers who face frivolous claims.

Then Yee Thoong
Divisional Director
Labour Relations and Workplaces Division
Ministry of Manpower

Cham Hui Fong
Deputy Secretary-General
National Trades Union Congress

Sim Gim Guan
Executive Director
Singapore National Employers Federation

-:-:-:-

This was the 28 July letter that TWC2 was responding to. It was signed jointly from the three parties behind TADM and was in reply to AWARE:

28 July 2021
Straits Times Forum

Wrongful dismissal claims taken seriously and investigated

We refer to the letter, “Difficult for workers to substantiate wrongful dismissal claims” (July 15), by Ms Mamta Melwani of the Association of Women for Action and Research (Aware).

The tripartite partners take wrongful dismissals seriously. Our laws protect employees from wrongful dismissal, including on discriminatory grounds such as pregnancy and family responsibilities.

The Tripartite Alliance for Dispute Management (TADM) helps employees who believe they have been unfairly dismissed by their employers.

Contrary to Aware’s claim that employees are not forthcoming in approaching TADM, we have seen an increase in the quarterly average of wrongful dismissal claims from about 260 in 2019 to 330 last year, following amendments to the Employment Act in 2019 to allow executives to file claims.

The majority of employers have acted responsibly. About three in four wrongful dismissal claims lodged in 2019 and last year were unsubstantiated, while the rest were resolved either through mediation or referred to the Employment Claims Tribunals for settlement.

In the unsubstantiated cases, TADM found that employers had sufficient cause to dismiss employees for reasons such as poor work performance. Employers could have better communicated the reasons for dismissal or put in place a more robust grievance handling process.

While Aware highlighted that the process could be difficult for employees, we have also received feedback from employers that the current process makes it too easy for employees to file wrongful dismissal claims.

Every allegation made is looked into and the employer is required to answer to it. It is therefore necessary to take a balanced and fair approach when assessing evidence presented by the respective parties.

In assessing claims, TADM is guided by the Tripartite Guidelines on Wrongful Dismissal, which take into account documentary and non-documentary evidence presented by both the employee and employer.

Besides TADM, unionised employees may approach their unions for help. National Trades Union Congress members can also approach U PME Centre@NTUC Members’ Hub or TADM@NTUC for help and representation at mediation.

Workplace discrimination of any form should not be tolerated. A tripartite committee has been set up to look at ways to strengthen enforcement of fairness in hiring and employment.

We will continue to work with public agencies, grassroots leaders and community organisations to raise awareness of TADM as the recourse for wrongful dismissal. We also urge organisations like Aware to do their part to encourage individuals to come forward and have their cases investigated.

Then Yee Thoong
Divisional Director
Labour Relations and Workplaces Division
Ministry of Manpower

Cham Hui Fong
Deputy Secretary-General
National Trades Union Congress

Sim Gim Guan
Executive Director
Singapore National Employers Federation

-:-:-:-

This was the letter from AWARE that started the thread:

15 July 2021
Straits Times Forum

Difficult for workers to substantiate wrongful dismissal claims

Recent figures published by the Ministry of Manpower and Tripartite Alliance for Dispute Management (TADM) show more employment-related appeals (More locals sought help on salary disputes, wrongful dismissals, July 10).

This indicates a commendable effort to help employees recover owed salaries and compensation in cases of wrongful dismissal.

But the particularly low number of wrongful dismissal claims leads to the question: Are there factors that keep employees from seeking help when unfairly terminated?

To start with, we should consider the difficulties in substantiating wrongful dismissal claims.

The Tripartite Guidelines on Wrongful Dismissal provide useful scenarios of what a wrongful dismissal looks like. To prove that the termination was made based on the specified “wrongful” provisions, the employee has to corroborate the claim with evidence.

However, many wrongful dismissal situations are subtle and difficult to document.

This is seen often in maternity discrimination, for example. Though it’s not, in theory, illegal to dismiss someone who has just returned to work after maternity leave, such a dismissal would be wrongful if the employer’s attitudes and behaviours conveyed a discriminatory attitude towards women with family care responsibilities.

The Association of Women for Action and Research’s Workplace Harassment and Discrimination Advisory has seen multiple cases involving employees who have either been asked to resign once they return from maternity leave, or are dismissed because of contractual termination.

Subtle discriminatory remarks about caregiving responsibilities were made in phone conversations or video meetings.

That these were not in writing, which would provide a paper trail, did not help the employees’ cases.

This lack of hard evidence discourages many employees from approaching TADM.

Another commonly cited reason for not approaching TADM: The damaging effects of workplace harassment (bullying and sexual harassment) on workers, which often cause them to resign, are not mentioned in the guidelines on wrongful dismissal, and employees don’t know how TADM will perceive their grievances.

Finally, the tripartite partners should take into consideration how many workers are simply unaware of TADM’s existence as a recourse option for wrongful dismissal.

The tripartite partners should, therefore, consider taking measures to address these points, and avoid wrongfully dismissed employees from slipping through the cracks.

Mamta Melwani
Senior Executive, Workplace Harassment and Discrimination Advisory
Association of Women for Action and Research