Hasan Shofiqul v China Civil (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judge: George Wei J
• Judgment Date: 28 May 2018
• Court: High Court (Singapore)
• Docket Number: Tribunal Appeal No 5 of 2017
• Date: 28 May 2018

Hasan Shofiqul

and

China Civil (Singapore) Pte Ltd

[2018] SGHC 128

George Wei J

Tribunal Appeal No 5 of 2017

High Court

Employment Law — Hours of work — Employee claiming remuneration for work done on public holidays — Section 88 Employment Act (Cap 91, 2009 Rev Ed)

Employment Law — Rest days — Hours of work — Employee seeking to rely on Pt IV Employment Act (Cap 91, 2009 Rev Ed) to calculate remuneration for work done on rest days — Whether employee employed in executive position — Section 2(2) and Pt IV Employment Act (Cap 91, 2009 Rev Ed)

Employment Law — Termination — Employee allegedly terminated without requisite notice — Whether sufficient notice given

Held, allowing the appeal:

(1) Order 55 rule 2(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) provided that appeals to which O 55 applied were to be “by way of rehearing”. This meant that the court was not constrained to determine only whether the tribunal's decision below was proper and/or contained manifest errors of fact and law: at [21].

(2) Order 55 rule 6(5) conferred broad discretion upon the court hearing an appeal from the decision of a tribunal when it came to determining what to do with the case. Although such appeals were “by way of rehearing”, it was important to recognise that, having heard the evidence, the judge was still in a better position to know all the circumstances. It followed that in an appropriate case, the court hearing the appeal might decide to remit the matter with its opinion and directions for the tribunal below to reconsider the evidence: at [23] and [24].

(3) Part IV of the Act dealt with the employee's remuneration for work done on rest days. Part IV did not concern matters relating to holiday and sick leave entitlements, which in any event were covered by Pt X of the Act: at [26] and [38].

(4) Whether the Claimant was entitled to avail himself of the provisions of Pt IV depended on his status under the Act. The Act distinguished between an “employee” and a “workman”, and between employees who were “managers or executives” and those who were not. The provisions of Pt IV only applied to workmen who earned a salary not exceeding $4,500 a month, and employees (other than workmen) who earned a salary not exceeding $2,500 a month. A person employed in a managerial or executive position would not be able to avail himself of the provisions of Pt IV, regardless of how much he earned: at [43], [44] and [53].

(5) Although the term “executive position” was not statutorily defined, it was clear that it was meant for employees who were in a better position to safeguard their own employment interests in respect of the matters falling within Pt IV, and who accordingly need not depend on statutory protection: at [59] and [60].

(6) Whether an employee was employed in an executive position had to be assessed by looking at all the circumstances of the case. On the facts, the Claimant's position as a site supervisor was insufficient to lead to the conclusion that he was an executive. On the contrary, the Claimant did not have a diploma nor did he possess any specialised skills or training. The employer even took the position that the Claimant's role was but a small and not highly technical part of the process. And while the Claimant could provide feedback to his superiors on the work performance of the workers under his supervision, he did not have direct authority in the hiring, firing, promotion, transfer, reward, and/or discipline of the workers: at [64], [68], [69] and [70].

(7) An employee who came within the provisions of s 38(4) of the Act was entitled to overtime payment at the rate of not less than one and a half times his hourly basic rate of pay, also known as the basic overtime rate: at [89].

(8) In principle, unless there were good reasons not to do so, the ACL's duty was to consider the relevant records for the whole of the Relevant Period. The ACL ought to have accepted and examined the Bored Pile Records for this entire period, and not just for the period from 14 August 2015 onwards: at [104] and [106].

(9) The Bored Pile Records likely understated the Claimant's actual overtime hours. This was where other contemporaneous records became relevant. The whole point of the exercise of comparing different workers' time cards, time sheets, and even the Claimant's own time cards was not to look for absolute precision, but to look for a broad measure of regularity that painted a picture consistent with the evidence given. In a non-automated system of time recording, it was only to be expected that the timings recorded would not be accurate to the second or even to the minute. Moreover, even in situations where workers worked in the same shift, there might be some minor differences in the timings recorded on different workers' time cards as a result of exigencies at work that might cause one worker to clock-off or clock-in at a time slightly different from another worker's in his shift. The principal duties of the workers, after all, were to work, and not to keep a detailed and meticulous record of their hours of work. Having assessed the overtime hours based on the Bored Pile Records, the ACL had to then apply the appropriate uplift to the overtime hours based on the contemporaneous records: at [102], [143] and [162(d)].

(10) On the evidence, the contractual notice period of one month was given and the Claimant's appeal on this point had to fail: at [148] and [149].

[Observation: The Act served a dual role of safeguarding employment rights and regulating employment relations. The effective operation of the Act, including Pt IV and Pt X, depended on a proper system of records that tracked an employee's or workman's hours of work in the first place. The present case underscored the importance of employers maintaining proper records of hours of work on work days, rest days and public holidays. Failure to do so could even render an employer criminally liable: at [150], [151] and [157].

Case(s) referred to

Brightway Petrochemical Group Singapore Pte Ltd v Ang Lily [2007] 4 SLR(R) 729; [2007] 4 SLR 729 (folld)

Cardshops Ltd v Davies [1971] 1 WLR 591 (refd)

Ceramiche Caesar SpA v Caesarstone Sdot-Yam Ltd [2017] 2 SLR 308 (refd)

Jolley v Sutton London Borough Council [1998] 1 WLR 1546 (refd)

Valentino Globe BV v Pacific Rim Industries Inc [2009] 4 SLR(R) 577; [2009] 4 SLR 577 (refd)

Facts

The respondent employer was in the business of bored piling. The claimant (“Claimant”) was initially employed by the respondent as a construction worker, but was subsequently promoted to the role of a site supervisor. After leaving the employ of the respondent, the Claimant lodged a claim with the Commissioner for Labour for overtime pay and payment of one month's salary in lieu of notice. At the conclusion of the proceedings, the Assistant Commissioner for Labour (“the ACL”) found: (a) that the Claimant, being a site supervisor, was employed in an executive position, and as such, could not rely on Pt IV of the Employment Act (Cap 91, 2009 Rev Ed) (“the Act”) in calculating payments due for work done on rest days and public holidays between 6 February 2015 and 31 December 2015 (“the Relevant Period”); (b) that based solely on the employer's records of the piling works on the project that the Claimant was involved in (“the Bored Pile Records”) during the Relevant Period, the Claimant was only entitled to overtime payment in the sum of $5,510.05; and (c) that the employer had given the requisite one month's notice.

On the first finding, the ACL reasoned that, as a site supervisor, the Claimant was in charge of his team and had made recommendations to promote or dismiss workers. On the second finding, the ACL disregarded the Bored Pile Records from 6 February to 13 August 2015 and relied solely on the records from 14 August 2015 until the end of the Relevant Period. The ACL also disregarded the Claimant's time cards and time sheets as well as those of the Claimant's fellow workers, as she reasoned that these were not the official records of the employer. This was despite the fact that the employer had no proper time-keeping system in place. On the third finding, the ACL found that the evidence was that the respondent had given the Claimant the requisite one month's notice. The applicant appealed.

Legislation referred to

Employment Act (Cap 91, 2009 Rev Ed) ss 2(1), 2(2) (consd); ss 2(1)(d), 8, 35, 35(a), 35(b), 36(1), 37, 37(2), 37(2)(c), 37(2)(c)(ii), 37(3), 37(3)(c), 37(3)(c)(ii), 37(3A)(a), 38, 38(1)(b), 38(4), 53, 88, 88(4), 88(4A), 119, Pt IV, Pt IX, Pt X, First Schedule, Third Schedule, Fourth Schedule

Employment (Amendment) Act 2008 (Act 32 of 2008) s 2(2)

Industrial Relations (Amendment) Act 2010 (Act 36 of 2010)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 55 rr 2(1), 6(5)

Rules of the Supreme Court (SI 1965 No 1776) (UK) O 59 r 10(3)

Chan Kah Keen Melvin and Tan Tho Eng (TSMP Law Corporation) for the applicant;

Tng Kim Choon (KC Tng Law Practice) for the respondent.

28 May 2018

Judgment reserved.

George Wei J:

Introduction

1 The applicant, Mr Hasan Shofiqul (“the Claimant”), is a Bangladeshi national who holds a work permit in Singapore. Like many others before him, he came to Singapore to work as a construction worker. On 29 September 2014, the Claimant signed an employment contract with the respondent employer (“the Employer”). The period of employment was for 29 September 2014 to 31 January 2016. For the entire duration of his employment, the Claimant worked exclusively at the project known as “T201, Mandai Depot Project” (“the Project”). He was paid a basic salary of $2,200 a month.

2 The Employer is a subsidiary of a Chinese construction company headquartered in China. The Employer's core business is bored piling. In early-2014, the Employer won a contract to install bored piles for the Mandai MRT depot that would serve the future Thomson-East Coast line. In mid-2014, the Employer began recruiting...