Kallivalap Praveen Nair v Glaxosmithkline Consumer Healthcare Pte Ltd
| Jurisdiction | Singapore |
| Judge | Kwek Mean Luck J |
| Judgment Date | 18 October 2022 |
| Docket Number | Suit No 171 of 2021 |
| Court | High Court (Singapore) |
[2022] SGHC 261
Kwek Mean Luck J
Suit No 171 of 2021
General Division of the High Court
Employment Law — Employers' duties — Implied term of mutual trust and confidence — Employee suing employer for alleged breaches of company policies — Whether there was implied term of mutual trust and confidence for employer to comply with company policies — Whether employer breached company policies by discriminating against employee and causing him to lose opportunity to secure new roles after he was made redundant
Held, dismissing the claim and counterclaim:
(1) There was no express term in the plaintiff's employment agreement (“EA”) which imposed an obligation on the defendant to comply with the Policies. Clause 5.2 of the EA only provided that “[the plaintiff] shall comply with all existing policies of the [GlaxoSmithKline group of companies] which are applicable to [the plaintiff]”. It did not impose a similar obligation on the defendant: at [11] to [17].
(2) There was no implied term in fact for the defendant to comply with all the Policies. Even if the defendant's employees expected the defendant to comply with its own policies, that did not make it a business or commercial necessity for such a term to be contractually included in the EA to give efficacy to the EA. The parties would also not have responded “of course” had an officious bystander put such a term to them at the time of the contract: at [19] to [26].
(3) In relation to the implied term of mutual trust and confidence (“ITMTC”) in law, the nub of the inquiry was not whether there was a general ITMTC in employment contracts under Singapore law, but whether the content of the ITMTC could extend to requiring employers to comply with all company policies: at [34] to [36].
(4) Even assuming that the ITMTC was part of Singapore law, the specific content that the plaintiff sought to ascribe to the ITMTC introduced a different order of uncertainty. There remained a large body of the defendant's documents which were neither identified nor discussed during the trial. There was uncertainty over which of the unknown documents were to be regarded as Policies. Furthermore, even if it could be ascertained which of the unknown documents were to be regarded as Policies, it remained uncertain which part of such documents should be regarded as contractually binding against the defendant. This was especially when many of the statements in the Policies were phrased as aspirational statements and did not appear to give the employee any contractual right to sue the employer: at [37] to [47].
(5) If the plaintiff's pleaded ITMTC was implied in law, such a term would be implied in all future employment contracts. The consequence would be that other companies, in the private sector, public sector and charity, would too be bound by their internal policies. This introduced a separate level of uncertainty. Oftentimes, companies would include in their internal documents aspirational statements to provide high standards to strive towards, knowing that they might not be at that standard yet. It was unlikely that they conceived of such aspirational statements as being contractual obligations owed to the employees when they were crafted: [47] to [55].
(6) Since the plaintiff failed to show that there were any express or implied terms which required the defendant to comply with its Policies, the plaintiff's case would be dismissed on this basis alone: at [57].
(7) Even assuming that there was an ITMTC under Singapore law which required the defendant to comply with its Policies, there were no breaches of the Policies on the facts. In relation to the plaintiff's argument that he was unfairly excluded from the List provided to Unilever in breach of the defendant's Equality Policy and Code of Conduct, the correspondence showed that the defendant nevertheless put the plaintiff in touch with Unilever for consideration for a role there. Furthermore, Unilever had the final say as to who it wished to employ for its senior roles and ultimately decided that the plaintiff was not suitable: at [63] to [72].
(8) The plaintiff failed to prove that the defendant acted in breach of the Policies by directly appointing Tess to the LT-1 role without affording him the opportunity to apply for the role. The evidence showed that while there was generally an open job posting process for new roles (“open-posting process”), the defendant had the discretion to directly deploy personnel to fill up specific roles to meet the company's interests without opening the role for applications from other candidates (“direct deployment process”). Therefore, the defendant's appointment of Tess to the LT-1 role via a direct deployment process was not a breach of the Policies. Moreover, the plaintiff had not shown that he would have been selected for the LT-1 role had there been an open-posting process: at [79] to [105].
(9) In relation to the plaintiff's argument that the defendant failed to fairly consider him for the LT-2 roles, the evidence showed that the plaintiff was fairly assessed for the LT-2 roles in the A&S process, but was ultimately found to be unsuitable for these roles. The plaintiff failed to prove that Tess had any ill intentions toward him for probing about the appropriateness of her appointment. The plaintiff also failed to prove that the personnel appointed to LT-2 roles were appointed because of their close association with Tess or their British nationalities. Four of the nine appointees were not part of Tess's former team and did not report directly or indirectly to her. Five of the appointees were not British nationals and came from Kuwait, Germany, Singapore, Canada, and Switzerland: at [115] to [121].
(10) The plaintiff also failed to prove that he was given a shorter notice period compared to other retrenched staff. Clause 10 of the EA clearly provided that the plaintiff's employment could be terminated by either party by giving three months' notice in writing. Despite being contractually required to give only three months' notice, the defendant gave the plaintiff an extension and six months' notice: at [144] to [147].
(11) The plaintiff was not entitled to a large sum of severance payment based on the “Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment” (the “Retrenchment Advisory”). The Policies only suggested that the defendant would try to meet the highest standards set out in legal regulations, but made no promises that the defendant was contractually obliged to meet these standards. The Retrenchment Advisory was also not a mandatory guideline, but merely laid out the prevailing norm for retrenchment benefits which was in no way binding on the defendant: at [156] to [160].
(12) The plaintiff was not entitled to the sum of $49,503.21 which the defendant withheld from his severance payment. The plaintiff did not sign the No Claims Form which was a specific requirement for the payment of any severance payment, as expressly stated in the notice of redundancy: at [161] and [162].
(13) The defendant's counterclaim was dismissed because the defendant failed to prove that it paid the plaintiff $95,211.87 under a mistake of fact as to whether the plaintiff had signed the No Claims Form. The plaintiff had previously put the defendant on notice about his reservations about the No Claims Form by informing one Ms Ruth Tan, the defendant's former Regional Human Resources Manager. Even if the defendant was mistaken that the plaintiff had signed the No Claims Form, it unreasonably ran the risk of error with payment of the severance sum without ascertaining if the No Claims Form had in fact been signed: at [165] to [169].
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Dong Wei v Shell Eastern Trading (Pte) Ltd [2022] 1 SLR 1318 (folld)
Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927; [2006] 1 SLR 927 (folld)
G Scammell & Nephew, Ltd v H C & J G Ouston [1941] AC 251 (refd)
Gogay v Hertfordshire CC [2000] IRLR 703 (refd)
Han Hui Hui v AG [2022] 5 SLR 1023 (folld)
Hii Chii Kok v Ooi Peng Jin London Lucien [2017] 2 SLR 492 (refd)
Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316 (refd)
Isle of Wight Tourist Board v Coombes [1976] IRLR 413 (refd)
Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd [2006] 3 SLR(R) 769; [2006] 3 SLR 769 (folld)
Lim Meng Suang v AG [2015] 1 SLR 26 (refd)
Malik v Bank of Credit and Commerce International SA [1998] AC 20 (refd)
Ng Giap Hon v Westcomb Securities Pte Ltd [2009] 3 SLR(R) 518; [2009] 3 SLR 518 (folld)
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Poh Lian Construction (Pte) Ltd v Lauw Wisanggeni [2019] SGHC 114 (folld)
Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (folld)
Singapore Swimming Club v Koh Sin Chong Freddie [2016] 3 SLR 845 (folld)
T2 Networks Pte Ltd v Nasioncom Sdn Bhd [2008] 2 SLR(R) 1; [2008] 2 SLR 1 (folld)
Tan Swee Wan v Johnny Lian Tian Yong [2018] SGHC 169 (folld)
V Nithia v Buthmanaban s/o Vaithilingam [2015] 5 SLR 1422 (folld)
W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 (refd)
Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2014] 4 SLR 357 (folld)
Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693 (refd)
The defendant was a company incorporated in Singapore and served as the regional headquarters of the GlaxoSmithKline group. The plaintiff was a former employee of the defendant, who was the Global Expert Director for the “Nutrition and Digestive Health” business.
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