Tan ZhengChun (L) speaking with a journalist from the mainstream media (R). TWC2’s Ethan Guo in middle.
Section 14 of Singapore’s Employment Act lays out the terrain regarding wrongful dismissal. It says in subsection (1):
An employer may after due inquiry dismiss without notice an employee employed by the employer on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of the employee’s service, except that instead of dismissing an employee an employer may — (a) instantly down-grade the employee; or (b) instantly suspend the employee from work without payment of salary for a period not exceeding one week.
The way the law is worded, there is a sense that dismissal without notice is wrongful if there has been no misconduct by the employee – in simple terms, if the employee has not breached the terms of employment or the job role that is implied. However, it is also trite law that terms of employment cannot violate statutory parameters.
In a statement posted 16 December 2024, the Ministry of Manpower accused TWC2 of inaccuracy in this story. We consider MOM’s accusations baseless. See our follow-up post which explains in detail why they are baseless.
Dismissal with notice can also be wrongful. One of the ways it can be wrongful is if the dismissal is intended to punish the employee for exercising his or her employment right.
For example, the Employment Act says that no employee should be made to work more than 72 hours of overtime in a month (on top of the regular 44 hours a week). If an employer demands that the worker should put in 180 hours of overtime a month – even if written into contract – and then fires the worker because the worker refuses to do so, it should be a case of wrongful dismissal. The employer has no right to demand 180 hours of overtime a month. Making an employee put in that many hours is plainly illegal.
An employee who believes that he has been wrongfully dismissed can file a claim under the Employment Claims Act for compensation or reinstatement in the employee’s former employment. The amount of compensation is to be determined by the Employment Claims Tribunal (ECT).
All very nice in theory. But how do things play out in real life for real workers?
Cook in a Hunanese restaurant
Tan Zhengchun walks through our door on 8 July 2024. He’s a slight guy, looking much younger than his 41 years. He begins to unburden himself, telling us how he was fired from his job.
Tan, a native of Hengyang, Hunan, wanted to experience the world. He had heard that Singapore was a safe place with good laws, and that there shouldn’t be a language issue. So he contacted a licensed agent in China and found a job with a Hunanese restaurant here. There was a video interview with a Singapore agent, but Tan never met the boss prior to his coming to Singapore. In the course of this video interview, he was given to understand that he would be working 12 hours a day, with two rest days in a month.
He paid 23,000 yuan to the agent in China – that’s about $4,250. The amount was borrowed from a bank.
After arriving in Singapore, he reported for work the very next day at 11:30am. He finished work at midnight but was made to extend his working hours to help a Vietnamese female co-worker to wash dishes (not his job). In short, he ended up working a 14-hour day instead of a 12-hour day.
The next day, Tan told his boss that he could not continue working such long hours. The employer was not happy to hear that and complained to the local agent who then spoke with Tan, telling him that working in Singapore was like that. Tan was not persuaded, but he nonetheless stayed on the job. On those subsequent days, he started work around 11:00am. He would get a chance to take a meal around 2pm, and continued to work until 11pm when he would have some time to get his second and last meal of the day. It appears that he refused to work 14-hour days.
Subsequently, the boss then said he would reduce his salary because he did not want to work the additional two hours. Naturally, Tan did not agree to any reduction.
Tan was particularly aggrieved that the two other cooks whom the boss directly hired from China – these two cooks didn’t have to pay agent fees, suggesting that the cost of recruitment was borne by the boss – were not made to put in these extra hours or do additional work.
On the ninth day of work, Tan was told to just go back to his room, there to wait for the local agent’s instructions. When the agent contacted him, Tan was told he had been terminated. Tan was asked to pack up, vacate his room and go to another accommodation elsewhere. But when he got to that other place, Tan saw two big-sized guys in the room he was supposed to be in. Feeling unsafe, he refused to stay there. With nowhere else to go, Tan ended up spending two nights on the streets, at parks etc.
When we heard this, we gave him the option of staying in TWC2’s emergency shelter, which he accepted.
At some point on the ninth day, Tan was paid $613 for his nine days of work. He didn’t make an issue of this and we therefore didn’t check if the amount was correctly calculated. Unfortunately, that meant that we could not ascertain whether he was dismissed with notice or dismissed without notice, though the difference would anyway be small. Having worked just nine days, the relevant notice period under the law was just one day.
Before he came to TWC2, Tan made an attempt to lodge a complaint at MOM. He found his way there, but the only attention he got was from somene who told him to use an online terminal to type in his complaint. He was at a total loss how to do that, and he left the premises without getting any other help or speaking to anyone else.
At TWC2, when he told us this story, we could picture the humourous scene of a self-service process gone mad, but for Tan, it wasn’t funny at all. We then asked him to make another visit to MOM, this time accompanied by a TWC2 volunteer, and they managed to speak to a human. According to Tan’s account of what then happened, this person (customer service officer?) opined he had no case because the employer had an unfettered right to terminate employment. However, the officer told them that if Tan insisted, they could go ahead to consult the Tripartite Alliance for Dispute Management (TADM).
TADM is the unit that handles employment-related disputes.
Unfortunately, all TADM queue numbers for the day had already been given out. The best they could do was to give a referral letter to Tan, asking him to return at 9am the next day.
MOM also took note of how he was homeless. They got on the phone to possibly the employer and insisted that proper accommodation be found for him immediately. By the evening, a bed in a Tuas dormitory had been arranged, but this was impractical. If Tan were to sleep in that far-away place, he would not be able to get to MOM by 9am the next morning. Instead, he came to our shelter which was more centrally located.
At TADM
Tan spent about 90 minutes the next morning at TADM, discussing three different aspects of the matter.
The first was the question of agent fees which, at 23,000 yuan, weighed heavily on Tan’s mind. According to Tan’s account of the meeting, TADM officers told him that since the fees were paid in China, there was no basis to seek refund here. Tan would not be getting help on this score.
The second issue was about the extra hours Tan had put in during his nine days of work. TADM asked if he wanted to pursue a claim for overtime pay. Tan said no because it would not amount to much.
The third issue was that of wrongful dismissal. TADM’s response to Tan was that since it was not obligatory for an employer to provide a reason for dismissal, Tan would have no case.
That last statement is what we’re going to grapple with here in this article. On the face of it, such a statement is equivalent to saying that so long as an employer keeps mum about why he is dismissing a worker, the worker cannot have grounds to file a case. We argue that such is too superficial a stance. TADM should still enquire about the events leading up to dismissal.
If that enquiry reveals no misconduct by Tan, then dismissal without notice would be wrongful. However, the employer could still terminate his employment with notice and without need to give any reason, unless…… the employer is doing so to punish him for exercising his employment right. In that case even dismissal with notice would be wrongful.
Demanding extra hours beyond statutory maximum is wrongful
The most striking detail in Tan’s story is that of working hours. It was already wrong of the employer, through the Singapore agent, to be asking Tan to work 12 hours a day, every day except for two rest days a month. This is much more than permitted by the Employment Act. It’s true that Tan did not object when he first heard of these hours, but that was when he was still in China and had no knowledge of Singapore law.
Once here, one can argue that Tan could even have refused to work 12 hours a day, keeping instead to the Act’s permitted maximum. If his employer fired him for sticking to the legal maximum, even such a dismissal would be wrongful because the demand to work those hours would itself be illegal.
However, in this case, the employer asked for more hours. And wanted to cut Tan’s pay if he refused. Tan had every right to refuse 14 hours a day. When the employer fired him for that refusal, the employer was, in our opinion, wrong. It is that simple.
TADM’s own Wrongful Dismissal Guidelines has this specific example:
Dismissing an employee to punish the employee for exercising his or her employment right, e.g. … declining a request to work overtime, is wrongful.
That said, we would stress that TADM is not the proper body to make any determination as to the merits of Tan’s complaint. The proper body is the Employment Claims Tribunal (ECT). However, from Tan’s account of his interactions with TADM, it seems as if TADM was trying to persuade him that he had no valid case at all even as they told him that if he insisted, they would open a file. To Tan, TADM seemed to have prejudged the issue without even making the most cursory of enquiries as to the background.
TADM should not lean one way or another if its statutory role is that of a neutral mediator. It should not speak to workers in ways that give the impression that it was making a judgement. It is also its professional responsibility to make some basic enquiries to understand the facts, and our point is that even the most basic of enquiries would have revealed potential wrongdoing by the employer. In this light of this, it is hard to justify TADM taking a position that is dissuasive of Tan filing a case.
Moreover, TADM should ensure that workers like Tan should be able to support himself and his family should he stay on to fight the case, and that means he should be free to look for a new job. Providing an avenue for redress is inherent in TADM’s statutory mission, and TADM would be failing in its responsibility if, by denying a worker a means of livelihood, such an avenue is cut off.
On 2 March 2020, then-Manpower Minister Josephine Teo, in her response to a parliamentary question, touched on the issue of employers of foreign workers seeking to reduce the salaries of their employees (Tan’s boss had wanted to cut his salary if he refused to work 14 hours a day). She assured Parliament that holders of Work Permits
… whose contracts are terminated by their employer for refusing to provide consent should seek help from MOM. MOM allows such [Work Permit holders] to find a new employer and we work with the Migrant Workers’ Centre to facilitate the process.
Intervention by TWC2
When we heard from Tan that TADM had told him he had no basis to file for wrongful dismissal and he should therefore await repatriation, we wrote in to TADM, requesting urgent reconsideration and appealing for permission to look for a new job.
The quick response was that TADM’s frontline staff would assist. But when Tan went again to TADM, he was once more told that the employer had not done anything wrong. If he insisted on filing a wrongful dismissal claim, he could, but no mention was made about allowing him to find a new job here. Without a means of livelihood, how was Tan going to support himself while waiting for the claims process (including a hearing at the Employment Claims Tribunal) to play out? It would take months.
Somebody in TADM forgot about the minister’s promise to Parliament.
Tan told us he wouldn’t want to pursue a claim under such circumstances. He would rather go back to China.
We think he’s going to tell everyone he meets not to come to Singapore to work. His initial impression of Singapore as a safe place with good laws has been shattered. Laws are only as good as those interpreting and enforcing them.
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