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In early August, there was an exchange of letters in the Straits Times Forum between Transient Workers Count Too and the Tripartitie Alliance for Dispute Managment (TADM) on the subject of wrongful dismissal. The letters are archived here. The Ministry of Manpower (MOM) is one of the three partner organisations constituting TADM; in fact, on a day-to-day basis, the two organisations work virtually hand-in glove with each other.

TWC2 found TADM’s 12 August 2021 reply to our letter to be flawed in many ways.

However, our rebuttal would have had to get quite technical and therefore not suitable for a follow-up letter to the Straits Times’ Forum Page which has a word limit of 400 words. Nonetheless, it would be against the public interest to let the matter rest. Thus, here we dissect TADM’s reply of 12 August and point out the flaws in its reasoning.

From the Tripartite Alliance for Dispute Mediation’s (TADM) letter of 12 August 2021 published in the Straits Times Forum (and archived here on our website), it is apparent that they conceive of mediation as a process whereby the mediator is to assess a claim, advise the parties of their assessment, and thereafter may legitimately invite or possibly even pressure the party assessed as being in the weaker position to either withdraw or settle the claim.

We do not agree with TADM’s conception of mediation.

1. Disputes about wrongful dismissal are legal disputes. Assessments and advice for legal disputes is best left to those who are legally qualified. We do not believe legal qualifications are necessary to be appointed as a TADM mediator. Nor, for that matter, are they even required to be accredited as mediators by any mediation standards body.

2. Parties should be advised by persons who are acting in their best interests. It is impossible for TADM to simultaneously be acting in the best interests of both the employer and the employee.

3. The mediation and settlement of employment disputes is TADM’s very raison d’etre. As with quasi-governmental units, it must have its own interest to attend to, perhaps in reporting a success rate in resolving disputes, however “success” might be measured. What assurance can parties have that such advice as dispensed by TADM mediators is not influenced by their own interest in securing a higher success rate?

4. While there is no universally accepted definition of what “mediation” means, the central tenet wherever you look is that the mediator should be a neutral facilitator. Where an assessment has been made and the assessment colours the conduct of subsequent mediation, the mediator can no longer be said to neutral; whether consciously or not, s/he will be siding with the party assessed as being in the stronger position.

5. In its letter of 12 August 2021, TADM wrote that “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.” TWC2 examined the 100 most recent wrongful dismissal claims filed at the Employment Claims Tribunal (ECT) as of 12 August 2021, and we see no evidence that corroborates the Tripartite’s assertion that the majority of such claims fail. Of these 100 claims, in 20 of them employers were ordered to pay compensation; 9 cases were dismissed and 33 were withdrawn. The remainder were either at hearing or pre-hearing stages. Claims where employees were successful at the ECT therefore outnumber claims that failed by more than 2 to 1. It cannot be assumed that a claim withdrawn is a claim that would have failed; as at TADM, claims can be withdrawn at the ECT after parties reach a negotiated settlement.

6. Finally, unless there is some private arrangement between TADM and the ECT that is unknown to the public — and any such private arrangement occluded from public scrutiny would raise questions of public accountability — we see no call for TADM to assume a role as manager-cum-guardian of the ECT’s caseload, as suggested by TADM’s satatement in its 12 August letter, “It would be counterproductive and time-consuming if every claim were to be adjudicated at the ECT.” While the Tripartite’s concern over the ECT’s caseload is perhaps well-intentioned, factoring such a concern into mediation protocols can lead, whether consciously or otherwise, to institutional bias against those who initiate claims. In the case of employment disputes, it would be expected that the persons who initiate claims are predominantly employees. As it is, we see evidence of institutional bias against employees in both the Tripartite’s replies to both AWARE’s letter and our letter, in for example their view that employers should not be “unnecessarily burdened” with “frivolous claims”. We do not believe that employees in Singapore are such a litigious and demanding lot that as a collective body they would be unnecessarily burdening employers with frivolous claims, and we are deeply saddened to see that even the Deputy Secretary General of NTUC would endorse such a view (he co-signed TADM’s letter of 12 August).

As much as we disagree with the Tripartite on the matter of appropriate mediation protocols, we are even more vexed by MOM’s and TADM’s apparent disregard for low-wage migrant workers whose work permits have been cancelled by employers without any formal notice of termination of employment having been given; many such workers are told of the cancellation only after the fact, along with the news that a flight ticket had been booked for their repatriation.

Both the Employment Act and the Tripartite’s Guidelines on Wrongful Dismissal make clear that misconduct is the only ground on which an employee may be dismissed without notice.  Yet for low-wage migrant workers who have been summarily dismissed who then seek help from MOM, there is not even the most cursory of attempts at determining if there had been any misconduct justifying instant dismissal on the worker’s part. From the cases that TWC2 has seen, workers are merely asked by TADM whether they had received salary in lieu of notice.

From many reports we hear from workers who contact TADM directly to raise wrongful dismissal grievances, there is a nearly-universal sense that they are rebuffed on the very first call.  It does not help that TADM’s e-Services portal discriminates against work permit holders by preventing them from directly submitting requests to mediate employment disputes.  For such workers, the protection afforded them by the Employment Act from being summarily dismissed is thus rendered entirely illusory.

It has been more than two years since the Employment Act was amended to allow employees to seek redress for wrongful dismissal at the Employment Claims Tribunal. It is telling that, whilst TWC2 encounters former work permit holders who have been issued with Special Passes to remain in Singapore to pursue salary or injury claims on a daily basis, we have yet to come across a single person issued with a Special Pass for a wrongful dismissal claim.

Is it plausible that there has not been a single low-wage migrant worker who has been wrongfully dismissed since the Employment Act was amended? Or have barriers, unseen and unacknowledged, been erected to prevent them from seeking redress?

Our recommendations

(a) Require employment disputes to be mediated by “certified mediators” as defined by the Mediation Act 2017 (MA).

(b) Amend the definition of “mediation” in the Employment Claims Act 2016 (ECA) to align it with the definition found in the MA.

(c) Lay down mediation protocols barring mediators from providing advice and/or their assessments of the dispute to parties. Parties who wish to take advice can be referred to any one of a number of pro bono legal services, such as the Community Justice Centre, the Law Society Pro Bono Services’ Community Legal and Migrant Worker Group clinics, or even to pro bono lawyers who provide assistance voluntarily. An alternative would be to set up a pure advisory service that is completely independent of MOM and TADM.

(d) Upgrade TADM’s e-Services portal so that work permit holders can also directly e-file mediation requests for employment disputes. Currently they can’t, whether they have a SingPass or not, and we can see no reason that can justify such discrimination.

(e) When a mediation request is refused, require the Commissioner for Labour (or in practice, TADM) to state the reason(s) for refusal in writing.