Longitude 101 Pte. Ltd. v Navinea Kanapathy Pillai and another matter

• Jurisdiction: Singapore
• Judge: Samuel Wee
• Judgment Date: 01 March 2024
• Neutral Citation: [2024] SGDC 47
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1320 of 2021
• Hearing Date: 05 July 2023,11 July 2023,06 November 2023,09 November 2023,10 November 2023,19 February 2024
• Citation: [2024] SGDC 47
• Year: 2024
• Plaintiff Counsel: Tan Wen Cheng Adrian (August Law Corporation)
• Defendant Counsel: Kishan Pratap and Jasmine Yan Ziyun (Kishan Law Chambers)
• Subject Matter: Civil procedure,Discovery of documents,Whether a party is deemed to admit to the authenticity of documents when the notice of non-admission of authenticity is not filed within the 14 day timeline under Order 27 rules 4(1)-4(2) of the Rules of Court (Cap 332, R5, 2014 Rev Ed),Companies,Directors,De facto directors,Confidence,Breach of confidence,Contract,Employment law,Contract of service,Breach,Termination with notice,Unfair dismissal,Section 84(1)(b) of the Employment Act 1968 (2020 Rev Ed),Whether the Ministry of Manpower's Tripartite Guidelines On Wrongful Dismissal are relevant in determining what constitutes sufficient cause for dismissal,Whether an employee was dismissed due to pregnancy,Evidence,Admissibility of evidence,Whether the requirements of section 67 of the Evidence Act 1893 (2020 Rev Ed) are satisfied,Principles,Whether authenticity of documents established,Tort,Conspiracy,Whether the controlling director conspired with the company
• Published date: 09 March 2024

District Judge Samuel Wee: Introduction

Parliament has legislated protection for women against wrongful dismissal during their pregnancy or maternity leave.¹ Unfortunately, instances of wrongful dismissal due to pregnancy remain a reality. Employers may conjure reasons to obscure the true motive for terminating pregnant employees. This is precisely what the Defendant in this case endured.

The parties

Longitude 101 Pte. Ltd. (“Longitude”) is the Plaintiff in the claim and the First Defendant in the counterclaim. Longitude provides accounting services; and is a related company of Latitude 1.1 Group Pte Ltd (“Latitude”), which offers corporate secretarial and directorship services to various clients. Longitude was engaged by Latitude to provide accounting services to its clients.²

Ms Navinea Kanapathy Pillai (“Ms Pillai”) is the Defendant in the claim and the Plaintiff in the counterclaim. She was a former employee of Longitude holding the position of Head of Finance and was also named the sole director of Longitude up till the termination of her employment.

Mr Haeusler Thomas (“Mr Haeusler”) is the Second Defendant in the counterclaim. He is the sole shareholder of both Longitude and Latitude. Additionally, he was disqualified from acting as a director under the Companies Act (Cap 50, 2006 Rev Ed) for 5 years from 6 June 2017.³

Background facts

Ms Pillai was initially employed by Latitude sometime in 2019.⁴ Mr Wee Sung Cheng (“Mr Wee”, who is also known as Marc) was the sole director of Latitude at the time.

On 2 September 2019, Longitude was incorporated with Ms Pillai named as its sole director.⁵ The decision to do so was made by Mr Haeusler.⁶

On 31 October 2019, Latitude issued a letter to Ms Pillai relating to her deployment from Latitude to Longitude.⁷ The letter was signed by Mr Haeusler on behalf of Latitude.

On 1 November 2019, Ms Pillai signed an employment contract with Longitude (“Employment Contract”).⁸ The Employment Contract was signed by Mr Haeusler on behalf of Longitude. The salient terms of the Employment Contract are as follows: Clause 10 relates to confidentiality obligations (“Confidentiality Clause”) and states: 10.1 The Employee is aware that in the course of employment under this Agreement she will have access to and be entrusted with information in respect of the business of the Company and its dealings transactions and affairs, all of which information is or may be confidential. 10.2 The Employee shall not during or after the period of employment under this Agreement divulge to any person whomsoever or otherwise make use of, whether for her own benefit or for the benefit of any other person, firm, company or association (and shall use her best endeavors to prevent the publication or disclosure of) any trade secrets or any client information of confidential information concerning the business of the Company or which any company owned by or affiliated to the Company owes an obligation of confidentiality to a third party. This duty of confidentiality shall survive the termination of this Agreement. 10.3 All notes and memoranda of any trade secrets or confidential information concerning the business of the Company or otherwise which shall be acquired, received or made by the Employee during the course of her employment shall be the property of the Company and shall be surrendered by the Employee to a person duly authorized at the termination of the employment or at the request of the Company at any time during the course of her employment. 10.4 The Employee shall not remove any documents or tangible items which belong to the Company or which contain any confidential information from the Company’s premises at any time without proper advance authorization from the Company. 10.5 The Employee must, if requested by the Company, delete all confidential information from any re-usable material and destroy all other documents and tangible items which contain or refer to any confidential information and which are in her possession or under her control. Clause 11.1.1 states: “…the employment of the Employee may be terminated by the Company by giving 3 (three) month notice in writing to the Employee of the termination of her employment …” (“Termination With Notice Clause”). Clause 11.4.1 states: “Upon termination of his appointment hereunder however occurring, the Employee shall … forthwith deliver to the Company all books, documents, papers, materials and other property of or relating to the business of the Company, which may be in her possession or under her power or control [(“Returnable Items”)]” (“Handover Clause”).

From March 2020, Ms Pillai started working from home due to the COVID-19 pandemic.⁹ Longitude provided her with furniture, stationery, and computer equipment, and documents were delivered to her home to facilitate the work from home arrangements.

Around 15 December 2020, Ms Pillai informed Mr Haeusler that she was pregnant.¹⁰

Between 15 January 2021 and 18 March 2021, Ms Pillai withdrew sums amounting to $100,500 from Longitude’s bank accounts – $71,500 from a DBS bank account (“DBS Account”); and $29,000 from a UOB bank account (“UOB Account”).¹¹ The purpose of the withdrawals and destination of the funds are the subject of this dispute and will be elaborated on under Issue 2.

On 27 April 2021, Longitude issued a “Notice Of Termination With Salary In Lieu Of Notice” (“Termination Letter”) through its solicitors August Law Corporation.¹² The salient points relating to the Termination Letter are as follows: The termination was effective on 27 April 2021. Longitude offered to pay Ms Pillai 3 months’ salary in lieu of notice ($43,500) and an additional bonus of $15,000. These sums have yet to be paid to Ms Pillai.¹³ Longitude requested that Ms Pillai return all Returnable Items in compliance with the Handover Clause. Longitude referred to the fact that Ms Pillai was working from home and “expecting”; and requested that she propose a time and place for its representative to meet her to collect the Returnable Items and provide her a cheque for $58,500. Aside from the reference to the Termination With Notice Clause, there were no reasons provided for the termination.

Ms Pillai was the only remaining employee of Longitude¹⁴ when she was terminated from her positions as both a director and an employee; and Mr Wee was named as Longitude’s sole director on 27 April 2021.¹⁵

After Ms Pillai’s employment was terminated, issues arose between Longitude and her regarding the return of the Returnable Items and the $100,500 that Ms Pillai withdrew from Longitude’s bank accounts.

Consequently, Longitude commenced these proceedings against Ms Pillai seeking the return of the Returnable Items; damages arising out of Ms Pillai’s alleged failure to return the Returnable Items, which was a breach of the Employment Contract; and payment of $100,500.¹⁶

Ms Pillai in turn launched a counterclaim against Longitude and Mr Haeusler for damages arising out of her wrongful dismissal, which she alleged was due to her pregnancy and in breach of section 84(1)(b) of the Employment Act 1968 (2020 Rev Ed) (“Employment Act”).¹⁷ She also relied on the tort of conspiracy.¹⁸

Issues

Several issues arise from the claim and counterclaim: Issue 1: Whether Mr Haeusler was a de facto director of Longitude. Issue 2: Whether Ms Pillai misappropriated $100,500 from Longitude. Issue 3: Whether Ms Pillai breached the Handover Clause. This involves ascertaining what Returnable Items Ms Pillai received from Longitude in the first place and what she has done with them (eg. whether she has disposed of or handed them back to Longitude). Issue 4: Whether Ms Pillai breached the Confidentiality Clause or an equitable duty of confidence. Issue 5: Whether Ms Pillai was wrongfully dismissed from her employment with Longitude. This involves determining whether Longitude terminated Ms Pillai’s employment because of her pregnancy or for some other legitimate reasons. Issue 6: Whether there was a conspiracy by unlawful means between Longitude and Mr Haeusler to cause damage or injury to Ms Pillai.

Ascertaining Issue 1 will help the court understand how Longitude operated (eg. how decisions were made) and set the context for the subsequent issues. In this regard, Issues 2 to 4 deal with Longitude’s claims against Ms Pillai, whereas Issues 5 and 6 deal with Ms Pillai’s counterclaims against both Longitude and Mr Haeusler.

Issue 1: Mr Haeusler was a de facto director of Longitude and its controlling mind

Longitude’s and Mr Haeusler’s position is that Mr Haeusler was not acting as a director of Longitude.¹⁹ Instead, he was the “of counsel” for Latitude (as opposed to Longitude) and was consulted on decisions in his capacity as the sole shareholder of Longitude.²⁰

Ms Pillai argues that Mr Haeusler was the de facto director of Longitude.²¹

The law

Under section 4 of the Companies Act 1967 (2020 Rev Ed) (“Companies Act”), a “director” is defined to include “any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the directors or the majority of the directors of a corporation are accustomed to act and an alternate or substitute director”.

This includes a de facto director, who is a person who acts as a director by exercising the powers and discharging the functions of a director even though he is not formally appointed (Raffles Town Club Pte Ltd v Lim Hock Eng Peter and others (Tung Yu-Lien Margaret and others, third parties) [2010] SGHC 163 (“Raffles Town Club”) at [50]).

To determine whether a person is a de facto director, the following principles laid out in Raffles Town Club at [58] are relevant: (1) To establish that a person was a de facto director of a company, it is necessary to plead and prove that he undertook...