Randall Savio Anthony D'Souza v Pius Chai

• Jurisdiction: Singapore
• Judge: Seah Chi Ling
• Judgment Date: 10 October 2016
• Neutral Citation: [2016] SGDC 257
• Court: District Court (Singapore)
• Docket Number: DC 2350/2013
• Published date: 21 October 2016
• Year: 2016
• Hearing Date: 26 February 2016,31 August 2015,17 November 2015,22 July 2016,10 June 2016,11 May 2016,25 May 2016,16 November 2015,25 February 2016
• Plaintiff Counsel: Mr Simon Tan (M/s Attorneys Inc)
• Defendant Counsel: Mr Manicka / Mr Thirumurthy (M/s Murthy & Co)
• Subject Matter: Tort ― Defamation,Justification,Qualified Privilege,Tort,Harassment,Whether harassment an actionable tort,Costs,Medway Principles
• Citation: [2016] SGDC 257

District Judge Seah Chi Ling: Introduction

The Plaintiff and the Defendant were ex-colleagues at CLSA Singapore Pte Ltd (the ‘Company’ or “CLSA”). The Plaintiff sued the Defendant for defamation after the Defendant told his superiors that he had been sexually harassed and bullied by the Plaintiff at their work place. In reply, the Defendant claimed that he only informed his superiors of the incidents when he requested for an inter-office transfer, and was asked by his superiors to provide the reasons for his request. The Defendant denied any intention to defame the Plaintiff, and sought to rely on the defences of justification, fair comment and qualified privilege. The Defendant further counterclaimed against the Plaintiff, seeking damages under the common law tort of harassment.

Background Facts

At all material times, the Plaintiff was a Regional Information Technology (IT) Manager (South East Asia) in the Company. At the same time, he was also and still is a grassroots leader with Moulmein Kallang GRC. He is a married man with a daughter who was 3 years old at the time of the filing of the Writ of Summons.

The Defendant was, at all material times, and still is, a messenger and courier working in the mailroom of the Raffles Place office of the Company. His job includes distributing mails to various departments in the Raffles Place office of the Company. He is a married man with two children, and was around 50 years of age at the time of the filing of the Writ of Summons.

On or around 1 August 2012, the Defendant requested for a transfer from the Raffles Place branch to the Suntec City branch of the Company, citing sexual harassment and/or work place bullying by the Plaintiff (the “Defendant’s complaint”). Following the Defendant’s complaint, on 3 August 2012, the then Senior Human Resources (“HR”) Manager of the Company, Miss Toni Carroll (‘Miss Carroll’) called for a meeting between the Plaintiff, the Defendant, and Mr Andrew Hartley, the Country Head of the Company (‘Mr Hartley’), to discuss the complaint.

The Plaintiff’s pleaded case was that at the 3 August 2012 meeting, the Defendant told Miss Caroll and Mr Hartley that the Plaintiff had sexually harassed him in the course of the employment as follows: By uttering the following words, or words to the effect, to him repeatedly for over a year on "countless and numerous occasions during lunchtime" (hereinafter, the “Alleged Words”):- "I love your butt"; and "I want to fuck your butt"; By calling out to the Defendant and doing a Michael Jackson impersonation in front of the Defendant by touching his crotch during a dance routine on 19 March 2012 (hereinafter, the “Michael Jackson Impersonation”) (the “Alleged Words” and the “Michael Jackson Impersonation”, hereinafter, collectively referred to as the “Plaintiff’s Alleged Words and Act”).

According to the Plaintiff, during the 3 August 2012 meeting, the Defendant also told the Plaintiff in the presence of Miss Carroll and Mr Hartley that:-

“I am a married man. I have 2 children. I am 50 years old. I don’t look handsome. I have a big belly, I am fat, why do you still love me?”

The words uttered by the Defendant referred to in paragraphs 5 and 6 above, which are the subject matter of the Plaintiff’s defamation action, will hereinafter be referred to as the “Offending Words”.

Events after the 3 August 2012 meeting

It appears from the evidence that the Company’s HR Manager, Ms Holly Cormack (“Ms Cormack”) took over the investigation of the Defendant’s complaint from Ms Carroll after the 3 August 2012 meeting.

Ms Cormack and the Defendant’s testimony was that the Defendant’s complaint was resolved at the 3 August 2012 meeting. According to Ms Cormack and the Defendant, it was agreed by all parties at the conclusion of the meeting that the most appropriate option was for the individuals concerned to “agree to disagree”, and to close the matter¹. The Plaintiff and Defendant then shook hands and parted. The Plaintiff’s position, on the other hand, was that that there was no agreement between the parties at the 3 August 2012 meeting to “forgive and forget what had happened”.

At any rate, on 14 August 2012, the Plaintiff sent a lawyer’s letter to the Defendant asking the Defendant to cease and desist in making the defamatory remarks, to publish an apology and to make reparation.

In light of the letter of demand sent by the Plaintiff, the Company informed all parties via letters dated 21 September 2012² that the investigation of the Defendant’s complaint would be re-opened (the “Formal Investigation”).

On or around 11 October 2012, the Company completed its Formal Investigation. Due to the lack of evidence to support the Defendant’s claim, the Company concluded that it was “difficult to draw any significant or valid findings to confirm the grievance” against the Plaintiff. Similarly, given the Defendant’s contemporaneous requests for help from his colleagues in dealing with the Plaintiff, the Company also could not conclude that the Defendant acted deliberately and maliciously when making the allegations against the Plaintiff. No disciplinary action was thus taken by the Company against either party. The relevant extract of the internal note prepared by Ms Cormack summarizing the outcome of the Formal Investigation is set out below:

“Conclusion:

Based on the lack of evidence (eg. witnesses and/or cameras) to support Chai’s claim it is very difficult to draw any significant or valid findings to confirm the grievance.

Equally, given the witness accounts of Chai’s repeated requests for help with his work interactions with Randal and the associated timeline of these requests, we do not believe this to be the deliberate making of a malicious allegation on his behalf.

As such disciplinary action for either party is not needed.”³

By two letters dated 11 October 2012, Ms Cormack officially informed both the Plaintiff and the Defendant of the final outcome of the Formal Investigation. In the letters, the Plaintiff and Defendant were informed that the Company found “the allegations of misconduct by [the Plaintiff] to be unfounded” and that they “considered [the] case to be closed with no further action being taken at this time”.⁴

Notwithstanding the above, on 19 October 2012, the Plaintiff commenced the present suit against the Defendant for defamation. Both the Plaintiff and Defendant retained their jobs at the Company at the conclusion of the Formal Investigation. However, a year and three months later, on 5 December 2013, the Plaintiff was retrenched by the Company on the ground that his position has been made redundant as a result of CLSA’s internal restructuring⁵. The Plaintiff claimed that his retrenchment was motivated in part by the Defendant’s prior complaint, a claim which the Company denied.

The Plaintiff’s case

In the present lawsuit, the Plaintiff alleged that the Defendant had defamed him as the Offending Words, in their natural and ordinary meanings, meant and were understood to mean that the Plaintiff is gay or a bisexual or has sexual inclinations or predispositions towards the Defendant. The words also suggested that the Plaintiff had behaved inappropriately and improperly towards the Defendant at the workplace.

The Plaintiff further contended that the Plaintiff’s Alleged Words and Act never took place, and that the Defendant’s allegations were false and untrue, and were made maliciously without regard for the immeasurable damage that would be done to the Plaintiff’s reputation and good name in the Company. Accordingly, he sought compensation against the Defendant in defamation.

The Defendant’s Defence and Counterclaim

In his Defence, the Defendant raised the defences of fair comment, justification and qualified privilege.

The Defendant asserted that the Plaintiff had in fact been sexually harassing him at their work place by uttering the Alleged Words on several occasions between July 2011 up to January 2012. Further, on 19 March 2012, the Plaintiff “made an action [holding] his crotch and [wiggling] his hips in an action like a ‘Michael Jackson’ dance routine”⁶. Being unable tolerate such acts of sexual harassment any further, the Defendant then approached the Company’s Chief Operating Officer (“COO”), Mr Stephen Michalski, to request a change of departments or to work in a different branch or office of the Company.

The Defendant claimed that it was never his intention to raise the issues of sexual harassment, teasing and bullying by the Plaintiff to the Company’s management. He only alluded to those acts for the purpose of explaining his reasons for wanting a transfer. In any event, the Defendant asserted that the Offending Words “were true and justified” and “did actually take place”.

In his Counterclaim, the Defendant further pleaded that the Plaintiff’s Alleged Words and Act had caused the Defendant to suffer “mental agony, distress and loss”. The Defendant claimed damages from the Plaintiff under the common law tort of harassment, as the acts pre-dated the commencement of the Protection from Harassment Act (Cap. 256A) (2015 Rev Ed) (“POHA”).

The Trial

The issues at trial were as follows: Whether the Offending Words were defamatory of the Plaintiff; If the Offending Words were defamatory, whether the said publication was protected by the defences of: (i) justification; (ii) qualified privilege; and/or (iii) fair comment; In relation to the Defendant’s Counterclaim, whether a common law tort of harassment existed in Singapore; and If so, whether the ingredients of the common law tort of harassment were made out on the facts of the case.

A total of 6 witnesses gave evidence at the trial. The following witnesses were called by the Plaintiff: The Plaintiff (“PW1”); Mr Andrew Hartley (“PW2”), Country Head of CLSA Singapore (by subpoena); and Ms Holly Cormack (“PW3”), HR Manager, CLSA...