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Dennis Tan Lip Fong. Source: Mothership.sg

Clear statutory definition of what constitutes a “manager” or an “executive” needed in the Employment Act: NCMP Dennis Tan

A clear statutory definition of what constitutes a "manager" or an "executive" needs to be incorporated in the Employment Act (EA), said lawyer and Workers' Party Non-Constituency Member Dennis Tan Lip Fong.

Speaking in Parliament after Manpower Minister Josephine Teo's Second Reading of the Amendment Bill to the Act on 20 Nov, Mr Tan said that "companies have tried to exploit the lack of a statutory definition to give inflated titles to fit the category of managers and executives when the reality of the job scope may be otherwise".

CIting the High Court decision in Hasan Shofiqul v China Civil (Singapore) Pte Ltd [2018] SGHC 128, Mr Tan added that "any interpretation published elsewhere including MOM guidelines is not binding in law in a similar way".

Touching on the definition of "dismiss" in the EA, beginning from "…and includes the resignation of an employee if the employee can show on a balance of probabilities, that the employee does not resign voluntarily but was forced to do so because of any conduct or omission, or course of conduct or omissions, engaged in by the employer", Mr Tan said that the "broad and vague wording" of "any conduct or omission" or "course of conduct or omission" has the potential to "create ambiguities and uncertainties", and "may give grounds for abuse by employees who may have left due to bad blood but who might not actually have been so forced to leave by their employers".

He also raised the question of lowering the duration of employment for eligibility of taking up claims to the Employment Claims Tribunal from 12 months to six months, arguing why it should not be less than three months, which is "a common duration for confirmation of employment".

Discrimination based on "ethnic origin or nationality" by employers in recruitment should be included in claims to be heard by the Employment Claims Tribunal

Mr Tan also suggested that the Employment Claims Tribunal "should also hear claims on discrimination".

"Some of us may have heard of not infrequently," he said, about "a manager of a company preferring to recruit people of the same ethnic origin or nationality," he said.

He added,

"…we should set a higher minimum monetary limit for cases before the employment claims tribunal. A good indication of a minimum limit should be the median annual income so that employers are less likely to be able to delay a hearing before the tribunal, on the calculation that the employee may not have sufficient resources to pursue the case in the civil courts. Hence the claim limit should be raised beyond $20,000. Let it cover claims involving PMETs too and PMETs with higher income."

With today’s Amendment Bill, the Employment Act will now cover PMETs earning more than $4,500. I also understand that the Employment Claims Tribunal is already hearing claims from PMETs. However, it appears that the limits of $20,000 and $30,000 has not been raised yet. Would the Government consider raising the limits so that more disputes can be heard by the Tribunal?

"Non-legally trained" entity should represent employers at a Tribunal hearing; use of in-house legal counsel would be unfair to employees

Mr Tan argued that in cases where a claim is brought to the Tribunal, the use of in-house legal counsel will provide an unfair advantage to employers, especially as employees are not entitled for legal representation at the Tribunal.

"Employees have no right to have lawyers representing them at the Employment Claims Tribunal, as the law does not allow representation by lawyers, so this means that lay people may not be fully equipped to ensure that their rights are protected and appropriate arguments are made in their favour.

"At the same time, I believe that the law does not expressly prohibit companies from using their in-house legal counsel, who may be a fully qualified lawyer to represent them at such proceedings. This may arguably not be fair to the employees. It is a possible loophole which the Government may wish to look to address," he said.

He added: "I have previously spoken against the provision in the Employment Claims Bill which allows the Tribunal not to be bound by rules of evidence in the conduct of any proceedings where I pointed out that the risks of a tribunal failing to consider relevant evidence or making its decision based on arguably wrongful evidence cannot be discounted and this affects the quality of justice.

"Naive or lesser educated workers who may not know how best to protect themselves with written evidence of any agreement with their employers may be disadvantaged by such a system," warned Mr Tan.

Thus, he argued that it "may be more appropriate to have a non-legally trained person to represent the employer at a tribunal hearing".

"Even with legal provisions which may set the Employment Claims Tribunal apart from, say, the State Courts in hearing its usual cases in the Magistrates and District Courts, the Employment Claims Tribunal should always apply the law as faithfully as it can, so that both employers and employees alike will be treated fairly and in accordance with their position under the law," said Mr Tan.

Employers should also be protected from misuse of employees' wrongful dismissal claims

Citing the case of a former client of his from several years ago who received a complaint of wrongful dismissal lodged by an ex-employee with MOM, he said that his client had "properly terminated the employment contract according to the notice provision of her employment contract", and that "the employee was paid according to what she was due to be paid under the contract" despite having a record of disciplinary issues.

"The employer could well have terminated the contract on disciplinary grounds, which would have meant that she would have been paid less upon termination.

"However, contrary to the clear contractual provisions and despite the disciplinary breaches, the company was told by MOM to provide ex-gratia payment to the employee.

"I hope that such a case was indeed a one-off and, certainly, I believe that such experiences should not be allowed to happen under the new regime where claims for wrongful dismissal will be heard in the Employment Claims Tribunal, including any mediation process," said Mr Tan.