FEATURE
“Additionally, do verify the entitlements due to the employee at termination and ensure that these are provided.” If the employee is to be sacked immediately and without notice, it is crucial for the employer to realise that this could be a breach, if the employment agreement does not allow payment in lieu. “Hence, we recommend that if the employer is going to do this, it is critical that the employer be thorough in assessing what the employee could be entitled to and provide it in full,” explains Kala. When there is a decision to proceed ahead with a summary dismissal, the employer needs to ensure that relevant internal grievance procedures, if any, are complied with. “If there are no such procedures, then it is particularly important to document the reasons comprehensively for the termination,” she adds. “At the very least, the employer should document instances of the employee’s conduct relating to the summary dismissal, including any warning letters that had been previously issued.” According to MOM’s Guide on Employment Laws for Employers, an inquiry to determine whether the worker has indeed been guilty of a serious offence or gross misconduct needs to be conducted. Should the inquiry find the worker guilty of either, then the company may fire him without providing any notice.
Rise of constructive dismissals Another aspect of dismissal becoming a more common occurrence in Singapore is that of “constructive dismissal”, says Kala. “These generally arise where the employee is able to show that the employer had through actions, gradually demoted the employee or had removed benefits that the employee was entitled to,” she explains. “Other illustrations include demotion of the employee, unilateral reduction in salary of employee, failure to pay salary, and undermining the position of a senior employee.” The issue of constructive dismissal was personified in a recent case of an IBM New Zealand employee, who eventually lost his appeal (see: boxout). Kala adds that in legal terms, constructive dismissal amounts to a repudiatory breach of the employment contract, where the employer had engaged in a significant breach which goes to the root of the employment contract.
Kiwi worker loses constructive dismissal suit An ex-IBM New Zealand employee has lost his claim of constructive dismissal against the technology conglomerate, the Employment Relations Authority (ERA) in Auckland recently disclosed. According to an online article on Techday, having worked for the New Zealand division of the firm for over 17 years until his resignation in August last year, the worker cited that he was “unjustifiably constructively dismissed” by IBM, who he claimed wanted him departed from the firm. To add insult to injury, the ERA found in favour of a counterclaim by the company. Far from receiving any damages, the man was instead ordered to fork out $4000 for breaching his employment conditions. The ERA filing deduced that he had abused his company laptop and following an evaluation of the contents, the ERA reported that the laptop had: “Materials including pornographic images, illegally downloaded movies, music, unauthorised software and recordings of private and confidential conversations between IBM employees.” While the Judge in the case, Eleanor Robinson, recognised in her verdict that his pornographic images were personal in nature and “may have been placed there inadvertently and may not have offended anyone at IBM during the course of his employment”, he still broke company rules on physical properties such as laptops despite the employee claiming the images were in a deleted state since 2011. “[Laptops] should only be used to conduct IBM business or for purposes authorised IBM management”, said the ERA report. The ERA also established that he had kept confidential IBM material after his departure, heralding to a further breach of his employment contract. He also said that his then direct manager, Kate Tulp had deliberated both his performance and requests for a salary raise with fellow IBM managers, and during an email conversation which he saw on her laptop, he felt that the management “wanted him out of the business.” According to the ERA, on the aspect of offering him a salary raise, Tulp wrote, “This will mean we elongate his time in the business though.” While recognising that he was aware of Tulp’s worries over his performance, which she described as “unacceptably low for any seller at IBM”, he felt he was being forced out of the firm and that the management had already decided about his career path. In giving evidence at the hearing, the worker told Robinson that he was one of only two sales reps to have made target during the sales half, and that he was in fact at 110% of target. Judge Robinson though, concluded that he “voluntarily resigned from his employment with IBM having received an offer of alternative employment on 8 August 2014 and that he was not unjustifiably constructively dismissed.” Nevertheless, the ERA ordered IBM to pay $500 due to a breach of good faith in not communicating in a timely manner the outcome of the annual salary assessment.
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