Stansfield Business International Pte Ltd v Minister for Manpower (fomerly known as Minister for Labour)

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 09 July 1999
• Neutral Citation: [1999] SGHC 183
• Docket Number: Originating Summons No 780 of 1998
• Date: 09 July 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Karuppan Chettiar, Ganesh S Ramanathan and Prasanna P (Hilborne & Co)
• Citation: [1999] SGHC 183
• Defendant Counsel: Jeffrey Chan and Asanthi Mendis (Attorney General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Whether court's jurisdiction ousted by s 14(5) of the Employment Act (Cap 91, 1996 ED),Remedies,Administrative Law,Whether process by which the Minister reaches decision breaches the rules of natural justice,Certiorari

Judgment:

WARREN LH KHOO J

This is an application for judicial review by way of a certiorari of a decision made by the Minister for Labour (now known as Minister for Manpower) purportedly under s 14 of the Employment Act. The decision arose from a complaint by a former employee of the applicant of dismissal without just cause. The amount of money involved is a modest one of $6,800, but the case raises an important question of law about the proper procedure to be applied to such cases.

2.The relevant parts of s 14 of the Employment Act provide 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 ...

(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) ...

(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.

3.Subsection (2) is the section that gives the Minister jurisdiction over a complaint of unjust dismissal. Subsection (3) provides for inquiry of the complaint by the Commissioner. But no guidance as to the procedure is given in the Act. A significant part of the complaint of the applicant in these proceedings before me is about the procedure that was followed in the inquiry said to have been carried out.

4. The background facts

I need not go into the background facts except in broad outline. The applicant, Stansfield Business International Pte Ltd, is the owner of a private commercial school. By a contract dated 19 September 1996, Mr Ngerng, the complainant, was employed by Stansfield as a lecturer in economics and related subjects. The contract was for a period of one academic year from 23 September 1996 to 31 May 1997. It was renewable from year to year by mutual agreement. It provided for a gross monthly salary of $3,700, reviewable annually. Clause E provided that at the end of the contract, the employee would be eligible for a completion bonus or gratuity based on his performance and contribution to the school, the minimum being equivalent to one month`s last drawn salary. It provided that in the event of misconduct or breach of any express or implied conditions of service, no bonus or gratuity would be payable.

5.Clause J of the contract provided for termination, as follows:

Your service may be terminated with three months notice served on each other by either party in lieu of notice. In the event of misconduct or breach of any express or implied conditions of service, which includes student class petitions to remove a lecturer for incompetent performance, conviction, grossly improper behaviour inconsistent with our professional conduct guidelines (especially relationships with students that can be misconstrued as unprofessional in nature), it may be terminated forthwith or without prior notice.

6.Clause V provided that any disputes arising out of or in connection with the contract should first be referred for arbitration under the Arbitration Act.

7.There was dissatisfaction with Mr Ngerng`s conduct almost from the start, centring mostly around his reporting for work late, being absent without leave and so on. There was also dissatisfaction with his performance as a teacher, as reflected in a student evaluation conducted in March 1997. On 6 May 1997, the managing director, Mr Kannappa Chettiar met him and offered to let him resign with an ex gratia payment of one month`s salary. When Mr Ngerng refused to accept this, he was issued with a letter of termination without notice. It read as follows:

We hereby terminate your employment with us with immediate effect as per your contract of employment dated 19 September 1996.

As per your contract with us, cl J, we terminate your services forthwith without prior notice for breach of both express and implied conditions of service. This action has been taken after giving you more than three warnings, and the last of which was given about a month ago. This action has also been necessitated by numerous student complaints and feedback to remove you. You have also failed to abide by our professional code of conduct and to maintain a minimum of 3.2 on the student ratings recently conducted. It is also an implied term that you are competent to teach on the subjects which has not been adequately demonstrated. As you are also aware, a substantial number of students also dropped out from your classes, resulting in a loss to us - in both income and goodwill.

You will therefore be paid until today which will be paid to you upon your handing over of all materials belonging to the school.

8.On 23 May 1997, Mr Ngerng made a complaint of unjust dismissal to the Minister. His letter is reproduced below:

My employment with Stansfield began at (sic) 28 August 1996 where I was engaged as a part-time lecturer for Macroeconomics. 20 September 1996, I was offered full-time teaching with the school on terms and conditions as stipulated in the letter of appointment. Upon completion of my teaching assignments for academic year 96/97 on 6 May 1997, I was asked to resign `on my own accord` or be dismissed by the school. Indeed, I was given termination without notice. The reasons cited in the letter are vague and not just. I would like to appeal to the Minister on the ground that the dismissal was without just cause. I seek reinstatement and/or any compensation that the Minister deems fit.

My deepest gratitude is that the Ministry enables me to voice my discontent. My sincere wish is that the truth could be revealed and justify (sic) upheld. A copy of the letters of appointment, the termination letter, and teaching evaluation are attached for your necessary reference.

9.The letter was seen by the Minister on 28 May 1997. He initialled it and passed it down through the various levels of officers of the ministry in accordance with the ministry`s practice. It ended up in the hands of Mr Tse, a labour relations officer in the Labour Department. In accordance with the department`s usual procedure, Mr Tse was instructed to find out if Ngerng was seeking reinstatement, and if so, to process the case under s 14(2).

10.Mr Tse did so. Ngerng told him he wanted to be reinstated. So, in accordance with procedure, Mr Tse wrote on 12 June to Stansfield. He told them that Ngerng had made a representation under s 14(2) of the Act, and enclosed a copy of Ngerng`s letter. He asked them to let him have in writing the full details of the case and the reasons for the dismissal; he also asked them for documents and so on. Stansfield replied, giving the details requested, but did not send documents. Their reply was expressed to be on a without prejudice basis, on the view that the arbitration clause provided for arbitration as the only proper forum for resolution of the dispute between them and Mr Ngerng.

11.On 3 August, Mr Tse wrote inviting Stansfield to attend an `interview` at the ministry on 19 August `to clarify the matter` and to bring documents pertaining to the matter. Stansfield did not attend the interview as they took the view that the matter should be settled by arbitration in accordance with the contract. When it was pointed out to them that the inquiry was under s 14, Stansfield sent Tse on 29 September the relevant documents on a without prejudice basis. They questioned whether Mr Ngerng fell under the definition of `employee` in the Act. They pointed to s 115(4) which they said provided that the Commissioner should not inquire into any dispute in respect of an employee (other than a workman as defined in the Act) whose salary exceeded $1,500 a month. On 3 October, Tse wrote to Cenobia Majella, the executive director of Stansfield who had been conducting the correspondence with him. He told her that an interview had now been scheduled for 15 October 1997, and requested her to attend. He concluded:

If you fail to attend the interview again, we shall proceed with our inquiry notwithstanding that your interests may be prejudicially affected by the outcome.

12. 15 October meeting

On 15 October, Miss Majella attended the interview with Mr Tse. There is some conflict of evidence as to what transpired at this meeting. Fortunately, there is a record of the interview in the form of a draft statement of Miss Majella (exh D-5) prepared by Mr Tse. This statement reads as follows:

1 I, Cenobia Majella, of the above particulars, wish to state the following:

2 Mr Ngerng Miang Hong was employed as a part-time lecturer in August and he was offered the full-time lecture post starting from 23 Sept...