Fong Sun Yong v Yau Lee Construction (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 11 June 2010
• Neutral Citation: [2010] SGMC 7
• Published date: 14 July 2010
• Docket Number: MAC No 3293 of 2009 J
• Year: 2010
• Citation: [2010] SGMC 7
• Plaintiff Counsel: Corinne Taylor (Legal Solution LLC)
• Court: Magistrates' Court (Singapore)

Loo Ngan Chor: The employment – the beginning , the end , the betwixt and between:

By the defendant’s letter of employment dated 17th December 2007, which the plaintiff signed and dated 18th December 2007, the plaintiff was appointed as the defendant’s project director with effect from 1st May 2008.

The defendant’s sole undertaking at all material times was for works at the Marina Bay Sands Integrated Resort (“the project”), the construction and completion of which has been much talked about, and the subject of much excitement, in the Singapore media.

Clause 9 of the employment letter stated that “either party can terminate the employment by giving notice period in writing or a cash payment in lieu of notice of two (2) weeks during probation and three (3) months after confirmation.” Both parties understood this clause to mean that it provided, at the material time, for either party to terminate by three months’ notice or three months’ salary in lieu of notice.

Although there was some debate as to whether the plaintiff was reasonably performing his tasks, with the plaintiff saying that he was and the defendant saying that he was not, it was clear that the situation at the project site was frenetic. The owners were putting pressure on the defendant to better what they had been doing, and the defendant came to a view that as long as the plaintiff remained as project director of the defendant for the project, the defendant was at serious risk with respect to the project. And so things came to a head between the parties.

On 13th January 2009, with the plaintiff less than nine months into his job, the defendant’s Managing Director, Ms Rosana Wong, whose office was in Hong Kong, and Mr Patrick Wong, their Commercial Director then recently posted to Singapore, met and agreed between themselves that in order to ensure that the project was not jeopardized the plaintiff should be removed. Ms Wong said that it was agreed that it be suggested to the plaintiff that he accept an immediate transfer to Macau to work on a project styled “the City of Dreams”. Also she alleged that, mindful of the plaintiff’s previous threats at resigning, she asked Mr Wong to have documents prepared contingent, on the one hand, on the plaintiff’s accepting a transfer to Macau and, on the other hand, on his wishing to resign instead.

On 14th January 2009, Ms Rosana Wong and Mr Patrick Wong held an unscheduled meeting with the plaintiff at a canteen at the project site. The plaintiff was having a separate meeting when Mr Wong came along to say that Ms Wong wished to speak with him. Mr Wong had with him several documents; three were in the agreed bundle, namely: (a) a termination payment sheet containing workings of what would be paid to the plaintiff if he were to resign; (b) a letter dated 14th January 2009 intended to be signed by the plaintiff on the defendant’s letterhead should he agree to be transferred to work in Macau; (c) a document headed “Singapore Monthly Allowance Proposal” which Mr Wong said he brought over from Hong Kong upon his own transfer to Singapore.

While it was not disputed that Mr Wong also had with him a pre-drafted resignation letter intended to be signed by the plaintiff on blank paper and addressed to the defendant, the plaintiff alleged that there were some missing words – “I hereby serve one month notice from 14/01/2009” - on a resignation letter that he did sign. The defendant claimed to have lost the plaintiff’s signed letter so that the original letter was not produced. The supposed letter of resignation that is in evidence was addressed to “Rosana” and reads in the body thereof as follows: “I regret to inform you that I would resign my post of Project Director due to my personal reasons with effect from 14 January 2009. Please accept my resignation which is [a word illegible] any inconvenience to the company.” In a second paragraph, the words read: “Thank you for your kindly attention.” The letter ended with “best regards” and the plaintiff’s name.

The plaintiff says that after a brief discussion about the progress or lack thereof of the project, Ms Wong gave him an ultimatum – to relocate to Macau or to resign with immediate effect. The plaintiff added the following words at trial to his affidavit, namely, “The words she used was ‘either we get you a ticket to fly down to Macau tomorrow or you sign this resignation letter now.’ ” Feeling shocked and confused, he said that he said that if the defendant did not need his services, he could at least be terminated with the contractual notice, the precise number of months of which he could not recall at the meeting, to which the plaintiff alleged that Ms Wong said that he would leave immediately and that the defendant would only pay him one month’s salary.

According to the defendants, following a discussion about the lack of progress of the project, Ms Wong offered the plaintiff a choice of transferring to Macau “effective the next day” but the plaintiff rejected the offer out of hand. It was alleged that the plaintiff then “expressed a desire to leave the defendants’ employment immediately.”

It is thus apparent that while the circumstances surrounding the Plaintiff’s signing the purported resignation letter and the terms of the resignation letter were disputed, it was common ground that the plaintiff did sign a resignation letter as well as the termination payment sheet.

The plaintiff says that he was coerced into signing the resignation letter. The next day, he wrote a letter to the defendant to set straight his version of the record.

The defendant, given their version at [9] above, naturally took the position that the plaintiff resigned voluntarily and the month’s salary that the defendant paid him was ex gratia.

The basic claims and defence:

The plaintiff has sued to be paid two months’ salary in lieu of notice as well as payment of a salary in lieu of a half day’s unconsumed leave. The latter, for $293.71, is not disputed. In respect of the former, the plaintiff’s position is that the defendant terminated his employment without cause and that the defendant was obliged to pay him three months’ salary in lieu of notice, of which the defendant had paid him only one. His resignation, the plaintiff says, was coerced.

The defendant says that the plaintiff had himself voluntarily resigned and the payment of a month’s salary was ex gratia.

The defendant further says that on 14th January 2009, as the plaintiff was leaving the project site after the meeting, the plaintiff had apprised Mr Wong of two matters, which constituted misconduct on the plaintiff’s part sufficient to justify his dismissal.

The first matter involved the sale of scrap metal valued at $584 on 7th October 2008, which the plaintiff had approved and the amount of which the plaintiff says had been set off against petty cash claims the defendant owed to him. The defendant complains that this was in breach of procedures evidenced by emails dated 28th and 29th November 2008. The defendant alleges that this was “misconduct” within the meaning of the defendant’s revised scrap material handling procedure.

The second matter was a cheque dated 10th March 2008 for $3850 addressed to a supplier, which the plaintiff had failed to hand over to the supplier resulting in the cheque becoming stale.

The plaintiff says, in respect of the sum of $584, that he had kept the money as he had been at the project site full time since September 2008 and the procedure for handling scrap material only came into place subsequent to the sale. This sum was eventually set off against his petty cash claims against the defendants. As for the cheque in favour of the supplier, he had retained the cheque as the payment was not due to the supplier, it depending on the expiry of a defects liability period and the submission of final accounts by the supplier, which as of 14th January 2009 the supplier had not done. The plaintiff handed over the cheque to Mr Wong as he left the project site.

Plaintiff’s new job:

Happily for the plaintiff, but laced with irony for the purpose of this case, the plaintiff found employment with another company with the same designation and salary days later, on 19th January 2009. He disclosed this under cross-examination on the first day of the trial. He commenced his new employment on 2nd February 2009, about 19 days after he left the defendant’s employ. Monetarily, the plaintiff suffered no loss.

The issues and my findings: Was the resignation letter signed under duress:

The plaintiff has, inter alia, relied on the decision of Justice Judith Prakash in Tam Tak Chuen v Khairul bin Abdul Rahman & ors [2009] 2 SLR(R)240 where at [22] her Honour held, following Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 400, that:

there are two elements in the wrong of duress: (a) pressure amounting to compulsion of the will of the victim; and (b) the illegitimacy of the pressure exerted.

In regard to the second element, that of illegitimate pressure, a threat has been described as illegitimate where the: terms secured as a result of the threat of lawful action are so ‘manifestly disadvantageous’ to the complainant as to make it unconscionable for the defendant to...