SINGAPORE Law and Practice Contributed by: Kelvin Tan, Benjamin Gaw and Lim Chong Kin, Drew & Napier LLC
may immediately terminate the contract if the employ - ee is convicted of a criminal offence involving fraud or dishonesty. Procedure Under the Employment Act Where an employee is covered by the Employment Act, an employee can only be summarily dismissed for misconduct after a due inquiry. The requirement for there to be a due inquiry only applies if the employee is summarily dismissed for misconduct, and not for wilful breach of the employment contract or some other reason (eg, gross incompetence). A due inquiry requires that the employee concerned be properly informed about the allegation(s) and the evidence against them so that they have an opportu - nity to defend themselves by presenting their position and any other evidence. Additionally, the person hear - ing the inquiry should be seen as impartial. A failure to carry out a due inquiry may constitute wrongful dismissal. See 8.1 Wrongful Dismissal . Procedure Under Common Law There is no general common law prescription of pro - cedural due process or requirement for the application of natural justice. However, where there is an employment contract, or other terms are incorporated into the employment contract that set out the procedure for inquiry into misconduct, the employer will have to comply with such procedure for dismissal on the grounds of mis - conduct. 7.4 Termination Agreements It is common for employers and departing employ - ees to enter into termination agreements, which may contain obligations in the remaining period of employ - ment, as well as post-employment obligations. Some of the provisions in such agreements include the fol - lowing: • severance payments; • arrangements for employee stock option plans (ESOPs) and other benefits payments; • mutual waivers and releases; • non-disparagement clauses; and
• post-termination restrictive covenants. These agreements provide clarity and closure at the end of the employment relationship and minimise the risk of disputes. Employers need to handle the presentation of termi - nation agreements with care. For example, employ - ers will want to avoid their employees apprehending discussion of such agreements as constructive dis - missal from employment or perceiving that they are under duress or other undue pressure to enter into the agreements. 7.5 Protected Categories of Employee The dismissal of an employee because of discrimina - tion on the basis of that employee’s age, race, gender, religion, marital status and family responsibilities, or disability is regarded as wrongful dismissal. It is also wrongful dismissal to dismiss an employee in order to deprive them of benefits/entitlements that they would otherwise have earned (eg, maternity benefits), or to punish the employee for exercising an employment right (eg, filing a mediation request, or declining a request to work overtime), according to the Tripartite Guidelines on Wrongful Dismissal. It is also an offence under the Industrial Relations Act 1960 for employers to discriminate against members of trade unions. Wrongful dismissal is the dismissal of an employee without just or sufficient cause. The termination of employment with notice but without giving any rea - son is presumed not to be wrongful. However, if an employer chooses to give a reason, the dismissal can be wrongful if the reason given is proven to be false. If no reason is given, an employee must substantiate a wrongful reason for the dismissal, such as discrimina - tion, deprivation of benefit, or to punish an employee for exercising their employment right (Tripartite Guide - lines on Wrongful Dismissal). 8. Disputes 8.1 Wrongful Dismissal
530 CHAMBERS.COM
Powered by FlippingBook