Dong Wei v Shell Eastern Trading (Pte) Ltd and another

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 24 February 2022
• Neutral Citation: [2022] SGHC(A) 8
• Citation: [2022] SGHC(A) 8
• Docket Number: Civil Appeal No 14 of 2021
• Published date: 01 March 2022
• Year: 2022
• Plaintiff Counsel: Choo Zheng Xi, Wong Thai Yong and Yuen Ai Zhen Carol (Peter Low & Choo LLC)
• Defendant Counsel: Goh Seow Hui and Sharmaine Chan Sze Min (Bird & Bird ATMD LLP)
• Subject Matter: Employment Law,Contract of service,Breach,Termination with notice,Disciplinary procedures,Investigations,Suspensions,Employers' duties,Mutual trust and confidence,Tort,Conspiracy,Inducement of breach of contract,Malicious falsehood,Negligence,Res ipsa loquitur
• Hearing Date: 03 November 2021
• Court: High Court Appellate Division (Singapore)

Belinda Ang Saw Ean JAD (delivering the grounds of decision of the court): Introduction

At first instance, the appellant, Dong Wei (the “Appellant”), sought relief against the respondents in respect of multiple alleged breaches of contract (specifically, a contract of employment with the first respondent, Shell Eastern Trading (Pte) Ltd (“Shell Eastern”)), as well as their alleged commission of various torts. The High Court judge (the “Judge”) dismissed all of the Appellant’s claims, and on 3 November 2021, we heard his appeal. After hearing submissions by counsel for both sides, we dismissed the appeal in its entirety. These are the detailed grounds of our decision.

The background facts

The facts are set out more fully in the Judge’s grounds of decision (the “GD”), Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2021] SGHC 123, and as such, we will only restate, in brief, the salient facts.

The Appellant was, from 2006 until the termination of his employment on 10 January 2018, an employee of Shell Eastern. At the time of termination, he held the position of “Senior Freight Trader”, and one of his primary responsibilities was selling freight space in ships owned and/or chartered by Shell Eastern or its affiliates. The second respondent, Lim Ming Way (“Mr Lim”), was also an employee of Shell Eastern. At the relevant time, he held the position of “Regional Team Leader (Freight)” and was the Appellant’s line manager.

The events leading to the Appellant’s lawsuit against the respondents were triggered on 29 September 2017, when the Appellant made a phone call to one Jason Balota (“Mr Balota”), a gas oil trader with Vitol Asia Pte Ltd (“Vitol”), an energy and commodities trading company. His evidence was that this call was entirely innocent and that he had contacted Mr Balota merely to obtain information on a cargo he had heard about from certain sources. However, from the perspective of Mr Balota’s chartering manager, Ben Jones (“Mr Jones”), the call did not appear so innocent. Once Mr Balota informed Mr Jones about the call, the latter was under the impression that something was amiss. Specifically, he thought that the Appellant had asked Mr Balota to charter a cheaper ship for the cargo. This, in turn, led to Mr Jones calling the Appellant to rebuke him for contacting Mr Balota directly. The Appellant tried to explain that this was not the case, but his explanation – that he did not even have a ship to offer – invited questions as to what reason he then had to break with market practice by calling a trader directly, instead of contacting his chartering manager.

Following this, the Appellant informed Mr Lim about his conversation with Mr Jones, seemingly to give him notice of what had transpired. Thereafter, on 12 October 2017, Mr Jones and Mr Lim met in person regarding the Appellant’s call with Mr Balota. Mr Lim took notes of the conversation and recorded the complaints allegedly made by Mr Jones. Based on Mr Lim’s record, these complaints were twofold. First, the Appellant had attempted to market a third-party vessel to Mr Balota, circumventing the proper practice of contacting a trader’s chartering manager, rather than a trader directly. Further, Mr Jones allegedly stated that this vessel belonged to the Appellant’s “friend’s company”, seemingly suggesting that the Appellant had been acting against the interest of Shell Eastern.

Second, this was not the first time in which an incident of this nature had taken place. Mr Jones allegedly raised an incident in 2016, where a third-party shipbroker had contacted Vitol to market a vessel for a cargo in circumstances where information about the cargo had been made known to the Appellant only. The third-party named by Mr Jones was a company called “First Fleet”. It is pertinent to note that in 2015, Shell Eastern investigated an allegation that the Appellant had shown favouritism to First Fleet. Again, in 2016, it conducted another investigation into allegations that the Appellant had received gifts from First Fleet. Though these investigations respectively concluded that the allegations were unsubstantiated, the Appellant was, in the first instance, nevertheless cautioned against such behaviour, and in the second instance, issued a warning for failing to disclose his close friendship with an employee of First Fleet who was in ship chartering.

Mr Lim conveyed these alleged complaints to Stavros Kokkinis (“Mr Kokkinis”), the General Manager for Freight and Oil Specialities, Trading and Supply Products in Shell International Trading and Shipping Company Limited (“STASCO”), an affiliate of Shell Eastern. This was followed by internal discussions, and on 20 October 2017, an investigation was commenced to ascertain the truth of Mr Jones’ alleged complaints against the Appellant. The investigation was conducted by Sumitra Balasundaram (“Ms Balasundaram”) of Shell Eastern’s Business Integrity Department (“BID”), and she was required to submit her report to four senior staff of Shell Eastern and STASCO who formed the members of the distribution list in respect of this investigation: (a) Mr Kokkinis; (b) Greg Marten, Vice President of Finance and Trading Regulation and Compliance in STASCO; (c) Marc Cornelius, STASCO’s Regional Head of Compliance (EU, Africa and East); and (d) Colin Shanks, the head of Shell Eastern’s BID.

The chronology of events after the commencement of the investigation is as follows. Ms Balasundaram first interviewed the Appellant on 23 October 2017, and thereafter, he met with one of Shell Eastern’s human resource staff, who handed him a notice which stated that he was being placed on mandatory leave with salary. The notice expressly provided that the Appellant would be told the outcome of the investigation upon its conclusion.

From 24 October to 9 November 2017, Ms Balasundaram continued to interview individuals relevant to the investigation, including Mr Balota, Mr Jones, and Mr Lim. On 21 November 2017, she completed her investigation and released her report to the members of the distribution list. She concluded that the allegations were “inconclusive”; specifically, in the sense that though there was no positive proof of wrongdoing, there was no valid explanation as to why the Appellant would knowingly depart from market practice to contact Mr Balota directly to obtain information about Vitol’s cargo, when Shell had no vessel available to offer freight space.

The completion of the investigation then takes us into the most salient background fact underlying this case. On 29 November 2017, S&P Global Platts (“Platts”) contacted Shell Eastern to seek its comments on rumours that it had been investigating its employees for, inter alia, corruption, and that one such employee was the Appellant (the “Platts Query”). The editor from Platts sought details on the investigation, but the spokesperson for Shell Eastern declined to comment specifically. She simply stated that it was not appropriate to comment on matters relating to personnel, though generally, employees were expected to comply with Shell Eastern’s code of conduct and that investigations would be conducted into alleged breaches of such code. In essence, the answer she gave was a non-answer.

On 12 December 2017, Platts then published an article (the “Platts Article”) stating that Shell Eastern had been investigating claims of “unethical dealings including charges of corruption in its tanker chartering team”. The article did not name the Appellant specifically, or indeed any employee, but it did identify the chartering team and remarked that “at least one employee has been asked to take leave pending further investigation”. The Appellant was the only one in the team placed on leave at the time.

During this time, the Appellant remained on suspension with full pay and – despite multiple requests from him – he was not told the outcome of the investigation. Then, on 10 January 2018, he met with Shell Eastern’s representatives, where he was informed that his employment would be terminated immediately with pay in lieu of notice. Even at this point, he was still not told of the outcome of the investigation. Shell Eastern declined to disclose the outcome on the basis that: (a) it was under no obligation to do so; and (b) its termination of the employment relationship was not a result of the outcome of the investigation.

Following the termination of his employment, the Appellant purportedly applied to four freight transport companies for comparable positions. On his account, these companies were aware from the Platts Article that there were unresolved allegations of impropriety against him, and thus declined to consider his application further until those allegations had been formally cleared. Thus, the Appellant, who claimed to have been unable to find employment in the shipping industry on the basis of these incidents, sought alternative means of earning a livelihood by operating early childhood education and art education businesses, neither of which he claimed has yet been profitable. Accordingly, in 2018, he sued the respondents to recover the damages he claimed to have suffered as a result of the whole series of events leading to the termination of his employment, and separately, the publication of the Platts Article.

The Appellant’s pleaded causes of action and relief sought

To recover damages, the Appellant pursued many causes of action in contract and tort at trial, as well as on appeal. This included actions brought against: (a) Shell Eastern for numerous breaches of his contract of employment as well as its negligence in failing to protect the confidence of the investigation, which the Appellant averred led to the publication of the Platts Article; (b) Mr Lim for inducing Shell Eastern to breach his contract of employment as well as malicious falsehood; and (c) both respondents for their participation in an unlawful means...