Brightway Petrochemical Group Singapore Pte Ltd v Ang Lily

• Jurisdiction: Singapore
• Judgment Date: 21 September 2007
• Date: 21 September 2007
• Docket Number: District Court Appeal No 9 of 2007
• Court: High Court (Singapore)

Brightway Petrochemical Group Singapore Pte Ltd

Plaintiff

and

Ang Lily

Defendant

[2007] SGHC 154

Chan Seng Onn J

District Court Appeal No 9 of 2007

High Court

Employment Law–Commissioner for Labour–Jurisdiction–Whether Commissioner for Labour having power to inquire into complaints of non-workmen employees receiving salaries exceeding $1,600–Section 115 Employment Act (Cap 91, 1996 Rev Ed)–Employment Law–Contract of service–Termination without notice–Whether accountant employee as defined in Employment Act (Cap 91, 1996 Rev Ed)–Whether notice period during probation same as that after confirmation

After working for only two and a half weeks, the respondent, who was still on probation at that time, was terminated without being given prior notice. She was given seven days' pay in lieu of notice. However, the respondent took the position that she should be paid 30 days' salary in lieu of the 30 days' notice of termination stipulated in the letter of offer. A claim was lodged with the Commissioner for Labour for the balance of 23 days' salary. At the hearing convened under s 115 of the Employment Act (Cap 91, 1996 Rev Ed) (“the Act”), the Assistant Commissioner for Labour (“ACL”) held that the respondent was entitled to one month's salary in lieu of the notice of termination.

The issues on appeal were: (a) whether the respondent was an “employee” as defined in the Act; (b) whether the notice period during probation was the same as that after confirmation; and (c) whether the Commissioner for Labour had the power to inquire into the respondent's complaint.

Held, allowing the appeal and setting aside the ACL's order:

(1) The respondent was an employee as defined in s 2 of the Act because she was not employed in a managerial, executive or confidential position and her duties and responsibilities were predominantly administrative and non-confidential in nature. When ascertaining whether a position was “managerial, executive or confidential”, all relevant factors must be taken into consideration, each given its appropriate weight: at [12] to [14].

(2) The second issue of whether the notice period during probation was the same as that after confirmation was not decided because the decision on the third issue, regarding the lack of jurisdiction of the ACL, was sufficient to dispose of this appeal: at [22].

(3) After considering the structure of the Act, the uniform application of the footnotes to s 33, Pt IV and s 115, as well as the Minister for Labour's speeches, the court concluded that s 115 of the Act did not apply to non-workmen employees who earn a salary exceeding $1,600 a month. As the respondent was not a “workman” and her salary exceeded $1,600, the ACL had no power to inquire into her claim: at [34] to [36].

(4) As the respondent lodged her claim with the Commissioner for Labour, her right of appeal was governed by s 117 of the Act. Section 117 did not prescribe that leave must be obtained prior to filing the memorandum of appeal. Therefore, no leave of court was required for an appeal brought under s 117. In any case, leave would be granted to the appellant as that involved a matter concerning the jurisdiction of the Commissioner for Labour to hear complaints: at [39] and [40].

Walsh Terence William v Peregrine Systems Pte Ltd [2003] SGHC 117 (refd)

Employment Act (Cap 91,1996 Rev Ed)s 115 (consd);ss 2,10 (2),10 (3),11 (1), 33,33 (1), 35,35 (b),117, 119,120, Pt IV,Third Schedule

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)s 21

Toh Kok Seng and Amelia Ang (Lee & Lee) for the plaintiff

The defendant in person.

Chan Seng Onn J

1 This appeal arose from the decision of the Assistant Commissioner for Labour, Ms Dorothy Ling (“ACL”), given on 18 April 2007. At the hearing before the ACL, the appellant was represented by its administrative and human resource manager, Ms Lew Li Yoong (“Ms Lew”). The respondent appeared in person. Under s 120 of the Employment Act (Cap 91, 1996 Rev Ed) (“the Act”), neither the employer nor the employee can be represented by an advocate or solicitor or by a paid agent.

Background

2 On 22 December 2006, the appellant offered the respondent the position of “accountant”. The letter of offer stated that she would report directly to the “financial manager”. It further stated that:

Your monthly salary will be S$3000 and your probation period will be 3 months. Your monthly salary will be S$3500 after completion of probation.

The Company has the right to relocate you and to terminate your employment with 30 days advance notice.

3 The respondent started work on 8 January 2007. It was not disputed that there existed a contract of service on the terms stated in the letter of offer. On 24 January 2007, the appellant terminated the respondent's employment without giving her any prior notice. She had worked for only two and a half weeks and was still under probation at the time of termination.

4 Although the respondent's services were terminated on 24 January 2007, her salary was paid until 31 January 2007. As such, the respondent was given seven days' pay (for the period from 25 January 2007 to 31 January 2007) in lieu of notice. However, the respondent took the position that she should be paid 30 days' salary in lieu of the 30 days' notice of termination stipulated in the letter of offer. As the dispute arose out of a term in the contract of service, the respondent lodged her claim with the Commissioner for Labour for the balance of 23 days' salary (approximately three weeks' salary) owed to her by the appellant.

5 A hearing was convened on 18 April 2007 under s 115 of the Act to inquire into the respondent's complaint. The ACL allowed the respondent's claim and awarded her the sum of $2,250 being three weeks' salary on the basis that:

(a) the respondent was an employee within the meaning of the Act;

(b) since a 30-day notice was expressly provided for in the letter of offer, s 11 (1) of the Act would apply; and

(c) the respondent was entitled to one month's salary in lieu of the notice of termination.

(I noted that an approximate formula was used in the computation rather than the relevant prescribed formula in the Third Schedule of the Act, which should have been used had the Act applied to this case. In any event, the difference in the amount is not significant.)

The issues in this appeal

6 The following issues were raised by the appellant:

(a) whether the respondent was an “employee” as defined in the Act;

(b) whether the notice period during probation was the same as that after confirmation, ie, 30 days; and

(c) whether the Commissioner for Labour had the power to inquire into the respondent's complaint.

Was the respondent an employee as defined in the Act?

7 Counsel for the appellant (“counsel”) submitted that the respondent was an employee who was employed in a managerial, executive or confidential position. As such, she fell outside the ambit of the Act and the order of the ACL should be set aside on this ground alone.

8 Section 2 of the Act defines an “employee” as:

… a person who has entered into or works under a contract of service with an employer and includes a workman … but does not include any seaman, domestic worker, or any person employed in a managerial, executive or confidential position … [emphasis added]

9 The appellant submitted that the respondent had admitted that she was employed as an “accountant” and that was her job description or designation. Her job responsibilities included setting up...