Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore)

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin JC
• Judgment Date: 11 April 2000
• Neutral Citation: [2000] SGHC 58
• Docket Number: District Court Appeal No 34 of 1999
• Date: 11 April 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Andrew J Hanam (Edmond Pereira & Partners)
• Citation: [2000] SGHC 58
• Defendant Counsel: Kee Lay Lian and Allen Choong (Rajah & Tann)
• Court: High Court (Singapore)
• Subject Matter: Termination,Employment Law,When presumption that dismissal on ground of redundancy arose,Contract of service,Termination with notice,Whether right of termination with notice removed by Retirement Age Act (Cap 274A) -ss 10, 11 & 14 Employment Act (Cap 91),Whether termination solely or mainly because of redundancy,s 4 Retirement Age Act (Cap 274A),Burden of proof,Whether termination with notice or termination with cause

: The defendants, who are the respondents in this appeal, operate Apollo Hotel Singapore at Havelock Road. The plaintiff-appellant was employed by the defendants as a lift attendant on 13 September 1973. He remained in their employment in various capacities, as a bell-hop and finally as a driver for almost 25 years. By way of a letter dated 31 August 1998 (`the letter of termination`) signed by the defendants` personnel manager, the plaintiff`s employment was terminated. The plaintiff was dissatisfied with his termination and referred the matter to his union whose officials made representations to the defendants on his behalf. When this did not work, the union made a formal application to the Ministry of Manpower pursuant to the Employment Act (Cap 91) (`the Act`). This recourse was not proceeded with when the plaintiff commenced this action in the District Court in DC Suit 7558/98.

The plaintiff alleged that the defendants terminated his employment because of redundancy and claimed for retrenchment benefits provided under the Collective Agreement (`the CA`). In the alternative, he claimed that his dismissal was in breach of s 14 of the Act and claimed damages. He also claimed certain amounts in respect of meals not provided by the defendants and telephone expenses. In their defence, the defendants pleaded that the plaintiff`s employment was ` terminated due to his bad working attitude and difficult behaviour according to the employment contract `. The defendants averred that the termination was not a dismissal under s 14 of the Employment Act and submitted that as a matter of law, they were entitled to terminate the plaintiff`s employment with one month`s pay in lieu of notice as provided in ss 10 and 11.

In the court below, the district judge dismissed all the plaintiff`s claims. He found on a preliminary determination that ss 10 and 11 of the Act gave the defendants the right to immediately terminate the plaintiff`s employment with payment of one month`s pay in lieu of notice. In view of this finding, the district judge said that the question of wrongful dismissal did not arise and did not examine this issue. The trial proceeded on the question of whether it was a disguised redundancy retrenchment and on the plaintiff`s claims in respect of meals and telephone calls. Before me the plaintiff appealed against the decision of the court below. After hearing the submissions from counsel, I allowed the appeal in relation to the main claim for redundancy payment, but dismissed the appeal in respect of the claim for reimbursement for meals and telephone calls. The defendants have filed notice of appeal against the order relating to wrongful termination and I now give my grounds of decision. [The appeal was withdrawn - Ed.]

Whether plaintiff was dismissed

In para 5 of their defence, the defendants averred that the plaintiff`s employment was ` terminated due to his bad working attitude and difficult behaviour according to the employment contract `. It is not clear whether this means that he was dismissed. Before examining this, I first set out the definitions of two terms that I will use in this judgment. Section 10 of the Act provides that either party to a contract of service may give notice of his intention to terminate such contract. The length of such notice shall be that provided in contract or, in the absence of such provision, shall range from one day to four weeks depending on the period of employment. Section 11 provides that either party may dispense with such notice period by payment to the other party the salary that the employee would have earned during that period. I will use the term `termination with notice` to describe termination (or purported termination) pursuant to s 10 or 11, ie whether it is with notice or payment of salary in lieu of notice. In a termination with notice there is no requirement for either party to have or give reasons for the termination. Hence when the defendants plead that the plaintiff was terminated on grounds that appear to suggest misconduct, there is uncertainty as to whether it is a termination with notice.

The second term is `dismissal with cause` which I will use to refer to dismissal pursuant to s 14 of the Act. That section provides as follows:

(1) An employer may after due inquiry dismiss without notice an employee employed by him on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service except that instead of dismissing an employee an employer may -

(a) instantly down-grade the employee; or

(b) instantly suspend him from work without payment of salary for a period not exceeding one week.

(2) Notwithstanding subsection (1), where an employee considers that he has been dismissed without just cause or excuse by his employer, he may, within one month of the dismissal, make representations in writing to the Minister to be reinstated in his former employment.

(3) The Minister may, before making a decision on any such representations, by writing under his hand request the Commissioner to inquire into the dismissal and report whether in his opinion the dismissal is without just cause or excuse.

(4) If, after considering the report made by the Commissioner under subsection (3), the Minister is satisfied that the employee has been dismissed without just cause or excuse, he may, notwithstanding any rule of law or agreement to the contrary -

(a) direct the employer to reinstate the employee in his former employment and to pay the employee an amount that is equivalent to the wages that the employee would have earned had he not been dismissed by the employer; or

(b) direct the employer to pay such amount of wages as compensation as may be determined by the Minister, and the employer shall comply with the direction of the Minister.

(5) The decision of the Minister on any representation made under this section shall be final and conclusive and shall not be challenged in any court.

(6) Any direction of the Minister under subsection (4) shall operate as a bar to any action for damages by the employee in any court in respect of the wrongful dismissal.

(7) An employer who fails to comply with the direction of the Minister under subsection (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.

(7A) Where any amount to be paid by an employer under subsection (4) is not paid in accordance with the direction of the Minister and the employer has been convicted of an offence under subsection (7), the amount or so much thereof as remains unpaid shall be recoverable by the court as if it were a fine and the amount so recoverable shall be paid to the employee entitled to payment under the direction of the Minister.

(8) For the purpose of an inquiry under subsection (1), the employer may suspend the employee from work for a period not exceeding one week but shall pay him not less than half his salary for such period.

(9) If the inquiry does not disclose any misconduct on the part of the employee, the employer shall forthwith restore to the employee the full amount of the salary so withheld.

Section 14(1) provides for two remedies to the employer in the case of employee misconduct, viz dismissal or punishment (by down-grading or suspension from work without salary of up to one week). We are concerned here only with dismissal. Under this provision, the employer has the right to dismiss an employee without notice if, after due inquiry, he finds that the employee has engaged in misconduct inconsistent with the fulfilment of the express and implied conditions of his service. There are safeguards in s 14 against a wrongful dismissal. The employee may make written representations to the Minister within one month and the Minister may cause an inquiry to be made as to whether the dismissal was without just cause or excuse. If the Minister is satisfied that the employee was dismissed wrongfully, he may direct reinstatement of the employee or monetary compensation to be made.

It can thus be seen that if an employer makes a termination with notice, he is obliged to give the employee a certain period of notice during which the latter continues to be paid his salary, or to give the employee salary in lieu of notice. On the other hand, if termination is by way of dismissal with cause, no notice period is required to be given although there is nothing to prevent the employer from giving notice. However the employer must make due inquiry as to the alleged misconduct. Also the employee has recourse to the Minister if he feels that the dismissal is wrongful.

Proceeding to the circumstances of this case, the defendants` letter of termination dated 31 August 1998 is entitled `Letter of Termination` and states as follows:

I am to inform that the Hotel has decided that your services are no longer required and your employment with the Hotel will be terminated with effect from 1 September 1998. In accordance with your contract of employment, the Hotel hereby gives you one (1) month salary in-lieu of notice for the termination of your Contract. ... your last day of service with the Hotel shall be today, 31 August 1998. ...

This letter states that the ground for termination is that the plaintiff`s services `are no longer required`. It also states that, in accordance with the `Contract of Employment`, the plaintiff is given one month`s salary in lieu of notice. The parties agree that the employment contract, insofar as it is written, is contained in (i) a document entitled `Employment Agreement` dated 13 September 1973; (ii) the CA; and (iii) any provision of any written law. The first two documents do not mention any right on the part of the defendants to terminate the plaintiff`s employment with payment of one month`s pay in lieu of notice although the plaintiff is obliged to give one...