Lim Tow Peng and Another v Singapore Bus Services Ltd

• Jurisdiction: Singapore
• Judge: Choor Singh J
• Judgment Date: 20 April 1976
• Neutral Citation: [1976] SGCA 4
• Docket Number: Civil Appeal No 54 of 1975
• Date: 20 April 1976
• Published date: 19 September 2003
• Year: 1976
• Plaintiff Counsel: JB Jeyaretnam (JB Jeyaretnam & Co)
• Citation: [1976] SGCA 4
• Defendant Counsel: Tan Kok Quan (Lee & Lee)
• Court: Court of Appeal (Singapore)
• Subject Matter: Application for declaration that the dismissal was null and void,Section 14 Employment Act (Cap 122, 1970 Rev Ed),Unfair dismissal,Application of doctrine of audi alteram partem in employer-employee relations,Termination of services for alleged misconduct,Whether provisions in Employment Act altered common law and placed statutory restrictions on masterÂ’s right to terminate contract with his servant at any time for any reason or for none,No hearing given,Whether contrary to rules of natural justice,Employment Law

Cur Adv Vult

The point of law determinative of this appeal from a judgment of the High Court is a short one, namely, what is the effect of s 14 of the Employment Act on a contract of service?

The facts of this case are not in dispute and are these. The appellants were employed by the respondents; the first appellant as a bus driver and the second appellant as a timekeeper. By letters dated 19 December 1973 both appellants were informed by the respondents that their services were suspended with effect from 21 December 1973. They were not informed of the reason for the said suspension nor of any alleged misconduct on their part. By letters dated 2 February 1974 both appellants were informed by the respondents that their services were terminated `after due investigation into your misconduct`.

No inquiry at all was made from the appellants of any alleged misconduct on their part nor were they told of the nature of any alleged misconduct on their part. They were not given any opportunity to be heard concerning any alleged misconduct on their part. The appellants issued their writ in these proceedings on 16 May 1974 and claimed:

(1) a declaration that their purported dismissal by the respondents was inoperative, null and void;

(2) an account of all sums due to them for wages from 21 December 1973 and an order for payment of such sum as was found due from the taking of the accounts;

(3) alternatively, damages for wrongful dismissal.

The respondents in their defence denied liability and alleged that the plaintiffs were guilty of misconduct in the course of their employment in that on or about 24 December 1973 the appellants assaulted the family and person of a timekeeper in the employment of the respondents; that the misconduct was so grave as to threaten the smooth running of the whole of the respondents` transport system and that the respondents therefore discharged the plaintiff from their services on 19 December 1973.

At the commencement of the trial before DC D`Cotta J counsel for the respondents conceded that the dismissal of the appellants was wrongful and that the respondents were liable to pay and were willing to pay such damages as the court may assess. Counsel having conceded that the termination of the appellants services was wrongful, no evidence was recorded.

Counsel for the appellants submitted that the appellants were entitled to the declaration which they sought and that damages would be an inadequate remedy in the circumstances of this case. Counsel relied on the provisions of s 14(1) of the Employment Act (Cap 122, 1970 Ed). Counsel submitted that the respondents were in breach of s 14(1) of the Employment Act and that where there is a breach of a statutory provision the court will exercise its discretion in favour of the employee and grant a declaratory order.

DC D`Cotta J held that the plaintiffs were entitled to damages for wrongful dismissal and he awarded the first plaintiff $632.40 and the second plaintiff $505. He refused to make the declaratory order sought by the appellants. He gave the following reasons for refusing to make the declaratory order:

This question of granting a declaration is a discretionary one. It was considered in a number of cases: Re Staples [1916] 1 Ch P 322 it was held that it should be exercised sparingly; `with great care and jealousy` - Austen v Collins LT 903; `with extreme caution` - Faber v GosworthUDC SS LT p 549. Suffice to say this discretion should be most carefully and jealously exercised.

After dealing with the facts in Vine v National Dock Labour Board [1957] AC 488 he continued:

In the present case the plaintiffs were employed as bus driver and timekeeper respectively by the defendants and it was open to them to seek and obtain employment in the same or another line of work with another employer. Furthermore, a declaration as sought for in the present case would inevitably amount to or involve specific performance of the plaintiffs` contract of service which as a general principle of law the courts will not do. In addition, there were no special circumstances to warrant the court exercising its discretion in the plaintiffs` favour.

In my view the circumstances of the present case are not comparable with those of Vine`s case and are not such as to make it proper to give an order for a declaration. In the circumstances I make no order on the application.

Before us, counsel for the appellants repeated the submissions he made before the trial judge. As this appeal turns entirely on the meaning and effect of the provisions of s 14(1) of the Employment Act, it is necessary, at this stage, to look at that section and also at the other relevant sections of Pt II of the Employment Act, which part deals with contracts of service:

8 Every term of a contract of service whether made before or after the date of the coming into operation of this Act which provides a condition of service which is less favourable to an employee than any of the conditions of service prescribed by this Act shall be illegal, null and void to the extent that it is so less favourable.

9(1) A contract of service for a specified piece of work or for a specified period of time shall, unless otherwise terminated in accordance with the provisions of this Part, terminate when the work specified in such contract is completed or the period of time for which such contract was made has expired.

(2) A contract of service for an unspecified period of time shall be deemed to run until terminated by either party in accordance with the provisions of this Part.

10(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service.

(2) The length of such notice shall be the same for both employer and employee and shall be determined by any provision made for such notice in the terms of the contract of service, or, in the absence of such provision, shall be in accordance with the provisions of sub-s (3) of this section.

(3) The notice to terminate the service of a person who is employed under a contract of service shall be not less than -

(a) one day`s notice if he has been so employed for less than twenty-six weeks;

(b) one week`s notice if he has been so employed for twenty-six weeks or more but less than two years;

(c) two weeks` notice if he has been so employed for two years or more but less than five years; and

(d) four weeks` notice if he has been so employed for five years or more:

Provided that the provisions of this section shall not be taken to prevent either party from waiving his right to notice on any occasion.

(4) Such notice shall be written and may be given at any time and the day on which the notice is given shall be included in the period of the notice.

11(1) Either party to a contract of service may terminate such contract of service without notice or, if notice has already been given in accordance with s 10 of this Act, without waiting for the expiry of that notice, by paying to the other party a sum equal to the amount of salary which would have accrued to the employee during the term of such notice.

(2) Either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service.

12 Notwithstanding anything contained in any other written law a person below the age of twenty-one years shall, subject to the provisions of this Act, be competent to enter into a contract of service.

Provided that no contract of service as an employee shall be enforceable against such

...