Aldabe Fermin v Standard Chartered Bank

• Jurisdiction: Singapore
• Judge: Steven Chong JC
• Judgment Date: 22 April 2010
• Neutral Citation: [2010] SGHC 119
• Date: 22 April 2010
• Docket Number: Suit No 174 of 2009
• Published date: 26 April 2010
• Plaintiff Counsel: Fermin Aldabe (plaintiff in person)
• Hearing Date: 04 January 2010,08 January 2010,03 March 2010
• Defendant Counsel: Herman Jeremiah, Chu Hua Yi and Wong Wai Han (Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Subject Matter: Contract

Steven Chong JC: Introduction

The present dispute has raised several thought-provoking issues on the law of employment that arise from an employment dispute which culminated in the employee being “summarily dismissed” on the very first day he reported for work. One of the key issues is whether an employee may be summarily dismissed because he evinces an intention to resign by serving one-month’s notice in accordance with the terms of the employment contract. Related to this issue is whether the employer can subsequently seek to justify the dismissal of the employee on additional grounds even if it was aware of those additional grounds at the time of the dismissal but chose not to rely on them. Finally, this case will also examine the scope of the “minimum legal obligation” rule in the context of an employee’s right not to be dismissed without a disciplinary hearing. In this case, cultural differences, linguistic misunderstandings, communication errors and institutional bureaucracy unfortunately escalated the dispute to a point of no return for both parties. The plaintiff was supposed to attend an induction session aptly named “the Right Start Session” on his first day at work. As things turned out, it was anything but the right start for both parties. The employee who was summarily dismissed represented himself in the legal proceedings that he commenced within two weeks after his purported dismissal.

Facts Background

The plaintiff, Mr Fermin Aldabe (“the plaintiff’), is an Italian. In September 2008, the plaintiff was head hunted by a recruitment agent, Mr. Robert Carruthers of Pathway Resourcing Ltd (“Mr. Carruthers”), who was sourcing on behalf of the defendant, Standard Chartered Bank (“the defendant”) to fill a senior position as Head of Complex Product Risk Management, Foreign Exchange & Commodities. At that time, he was residing in Argentina. This was a position that required the plaintiff to be based in Singapore but to report to Mr Simon Charles Gurney, the Chief Risk Officer of the defendant for Europe (“Mr Gurney”) who was based in London. After a few rounds of interviews, the defendant’s Senior Resourcing Manager, Mr Gavin Charles Taylor (“Mr Taylor”), made an initial offer to the plaintiff on 4 November 2008. The remuneration package offered to the plaintiff was for an annual salary of USD 200,000 with a target bonus of USD 150,000.

The Letter of Offer

The plaintiff did not accept the defendant’s initial offer. On 5 November 2008, the defendant revised its offer to an annual salary of USD 220,000 with an improved target bonus of USD 170,000. The revised offer was still not sufficiently attractive for the plaintiff. The defendant was made aware by the plaintiff that he was also considering a competing offer from Vontobel Bank in Switzerland. Following the rejection of the defendant’s revised offer, Ms Doris Honold, the Group Head of Market Risk of the defendant, then spoke to Mr Carruthers and increased the offer with an additional USD 30,000 in restricted shares in accordance with the defendant’s Restricted Share Scheme. The plaintiff then accepted the defendant’s revised offer through Mr Carruthers on 6 November 2008. Finally, on 10 November 2008, Mr Taylor sent a scanned copy of the Letter of Offer setting out the terms of his employment to the plaintiff by email. He also handed a hard copy of the Letter of Offer to Ms Jenny Huang, the defendant’s Resourcing Coordinator (“Ms Huang”), to courier it to the plaintiff in Argentina for his signature. On 11 November 2008, the plaintiff signed the scanned copy of the Letter of Offer, dated his acceptance to have taken place on 7 November 2008, and returned the signed scanned copy to Mr Taylor by email.

Under the terms of the Letter of Offer, the commencement date was expressly stated to be 17 November 2008 subject to the approval of the plaintiff’s employment pass. However, it soon became apparent to the defendant that it would not be possible to set up all the information technology systems in time for the plaintiff’s arrival. Mr Gurney then suggested to Mr Taylor that the plaintiff’s commencement date should be delayed to 1 December 2008 instead.

Pursuant to Mr. Gurney’s direction, on 14 November 2008, Mr Taylor sent an email (“the 14 Nov Email”) to the plaintiff in the following terms:

Hi Fermin,

Your EP has been approved. Your start date will be 1 Dec ’08.

I assure you that we are firm on hiring you, given the time we require to get the logistics done for your laptop and LAN access, this takes some time, hence we have to push back the date.

The dress code in Singapore is business formals, a suit is not required. However, in London, you will need to wear a suit given the climate and also this is a dress code.

The original offer letter and other documents have been sent to your address in Argentina, pls complete and send it back to me to get this processed.

The hard copy of the Letter of Offer which Mr Taylor had instructed Ms Huang to courier to the plaintiff on 10 November 2008 was in fact only couriered to the plaintiff on 17 November 2008. Furthermore, the covering letter to the Letter of Offer was dated 16 November 2008. This meant that although the plaintiff had earlier been informed by Mr Taylor that his start date would be 1 December 2008, the Letter of Offer which was sent after the conversation still referred to an unchanged commencement date of 17 November 2008.

A series of unfortunate events

Having accepted the Letter of Offer, the plaintiff was looking forward to starting his new career with the defendant. However between his acceptance and his first day at work, the relationship was marred by a “series of unfortunate events” which set the stage for the dramatic turn of events on the first day he reported for work.

On 6 November 2008, the defendant informed the plaintiff that his annual salary (inclusive of transport allowance of $39,000) in Singapore dollars was $323,400. The agreed salary was in USD. The plaintiff was not pleased with the exchange rate of 1.47 which was applied unilaterally by the defendant. He raised the complaint and the defendant agreed to accept his rate of 1.5 instead.

On 17 November 2008, the defendant informed the plaintiff that he would have to purchase his own air ticket to Singapore, and that he could seek reimbursement from the defendant upon his arrival. The plaintiff replied on 18 November 2008 that he was unwilling to pay for the ticket because the Letter of Offer required the defendant to pay for it. After learning of this, Mr Gurney agreed that the defendant would arrange and pay for the plaintiff’s air ticket to Singapore.

The plaintiff arrived in Singapore on 28 November 2008. He was then informed by the defendant that the crediting of his salary might be delayed because he had not submitted the forms pertaining to his bank account information on time. Furthermore, the plaintiff was also told that he would not be provided with a corporate credit card for the expenses he would incur for the two-week training course which he was required to attend in London following his two-day induction session in Singapore. In response, the plaintiff sought the defendant’s confirmation that he would be paid by the end of December. If not, he suggested to “postpone the initiation until January 1st ”. This email was copied to the defendant’s London office.

After receiving the plaintiff’s reply, Ms Sandra Box (“Ms Box”) from the defendant’s London office assured the plaintiff by email on 28 November 2008 that she would “make sure” that he would be paid at the end of December. She told him “don’t worry about this, it will be sorted out”. Ms Box sent a further email to the defendant stating that it was “imperative” that the plaintiff be paid at the end of December. The plaintiff separately wrote to Ms Box by email on 28 November to impress upon her to explain to Mr. Gurney of his difficulties to support a month of expenses in Singapore without receiving his salary by the end of December. Unfortunately, in spite of the assurance from Ms Box, Ms Phyllis Ang, a Resourcing Manager of the defendant (“Ms Ang”), informed the plaintiff by email dated 29 November that it could only “endeavour” to make payment to him by the end of December if his bank account documentation was handed in on time.

The plaintiff was extremely unhappy after reading Ms Ang’s email. To him, the use of the word “endeavour” was contradictory to what he believed had been a firm promise by Ms Box that his salary would be paid at the end of December. On 30 November 2008, the plaintiff then wrote an email to Mr Taylor to inform him that he would not attend the induction session unless the defendant could “guarantee in writing that all necessary paperwork is in place and that payment will take place at the end of December”. The plaintiff also indicated that he would go to the defendant’s Human Resources department at 7.00 am on 1 December 2008 to resolve the payment issues.

These episodes obviously left a sour taste in the plaintiff’s mouth. It was in this context that the plaintiff’s behaviour and reaction on 1 December 2008 should be examined.

Events on 1 December 2008

True to his word, the plaintiff arrived at the defendant’s Human Resources department at 7.00 am on 1 December 2008. He met Ms Ang at about 8.30 am. She gave him some forms to fill up to facilitate the crediting of his salary. While the plaintiff was filling up the forms, he expressed his concern to Ms Ang that he might be late for the induction session that was slated to start at 9.00 am that morning. Ms Ang assured him that he need not worry about being late because the first two hours of the induction session was merely an introduction to the defendant. She also assured the plaintiff that she would call the person in charge of the induction session to inform her that the plaintiff might be late.

While the plaintiff...