STATUTORY REPUDIATION, NATURAL JUSTICE AND SECTION 13(2) OF THE EMPLOYMENT ACT
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| Citation | (2004) 16 SAcLJ 447 |
| Author | Gary CHAN Kok Yew LLB (Hons)(National University of Singapore), LLM (London), BA (Philosophy)(London), MA (Southeast Asian Studies) (National University of Singapore); Advocate & Solicitor (Singapore); Assistant Professor of Law, Singapore Management University. |
This article examines two main issues. The first issue concerns the legal effect arising from the absence from work of an employee without prior leave. Does the employee’s conduct amount to an automatic repudiation so as to entitle the employer to terminate the employment contract? The second issue relates to the principles of natural justice. Is the employer legally obliged to grant the employee the opportunity to be heard prior to such dismissal? In relation to the second issue, this article also seeks to proffer some arguments for the limited application of natural justice principles to termination of employment.
1 If an employee has been absent from work without prior leave, can the employer treat such employee conduct as evincing an intention to repudiate the employment contract and proceed to dismiss the employee (the “statutory repudiation issue”)? Further, does the employer have an obligation to provide the employee with an opportunity to explain his side of the story prior to such dismissal (the “natural justice1 issue”)? These two novel issues were the focal points in the recent saga involving Joseph Clement Louis Arokiasamy (“the Employee”) and Singapore Airlines Ltd (“the Employer”) before the Singapore courts.
2 The Singapore courts were also called upon to examine s 13(2) of the Employment Act,2 a provision which hitherto has not been put under the judicial microscope. The recent saga, which involved the dismissal of the Employee under s 13(2), presents us an opportunity to appreciate the workings of this statutory provision from the perspective of the courts. Section 13(2) of the Employment Act provides that an employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two days:
(a) without prior leave from his employer or without reasonable excuse; or
(b) without informing or attempting to inform his employer of the excuse for such absence.
3 With respect to the statutory repudiation issue, the High Court Judge (Woo Bih Li J) in Arokiasamy Joseph Clement Louis v Singapore Airlines Ltd3 opined that the Employee’s absence from work under s 13(2) of the Employment Act gives rise to an automatic repudiation of the employment contract such that the Employer can elect to terminate the employment contract. The upshot of Woo J’s decision is that there is no necessity to consider whether the Employee’s absence from work evinces an intention to repudiate the employment contract under the common law, so long as the conditions in s 13(2) of the Employment Act are satisfied.
4 The natural justice issue involving the Employer and Employee has passed through the portals of no fewer than five separate courts in Singapore.4 Four of the Singapore courts have disposed of this issue
fairly quickly5 and have responded unequivocally that there is no role for natural justice in an employment dismissal scenario. The remaining court presided by MPH Rubin J,6 however, took pains to deal with the issue of natural justice in employment dismissal cases at greater length. Rubin J held that the principles of natural justice would apply if relevant provisions in the personnel procedure manual (“PPM”) of the Employer, which related to certain disciplinary procedures to be conducted prior to dismissals, were incorporated as part of the contract of employment.7 Rubin J had specifically referred to, without explicitly endorsing, the English case of Stevenson v United Road Transport Union8 (“Stevenson”). The case of Stevenson appeared to favour a more robust application of the principles of natural justice in employment relationships than what Rubin J and the other Singapore courts stated above.
5 This article seeks to argue that an employee’s absence from work under s 13(2) of the Employment Act does not necessarily give rise to an automatic repudiation. There are sufficient reasons based on sound statutory interpretation and an analysis of the case precedents (albeit non-binding), which suggest that such absence from work without leave (even if it satisfies the conditions in s 13(2) of the Employment Act) does not and should not automatically repudiate the employment contract so as to entitle the employer the right to terminate the employment contract. This paper will discuss the rules of natural justice (including the principle in Stevenson) in relation to employment dismissals in the context of s 13(2). It will also submit that s 13(2) of the Employment Act should draw some inspiration from the Stevenson principles and, hopefully, take in a dose of natural justice.
6 The Employee was investigated by the Corrupt Practices Investigation Bureau, arrested and charged in court. He was subsequently acquitted of the charge. However, whilst the Employee was in remand, he received a dismissal letter from the Employer dated 5 March 1997 stating, inter alia, that as the Employee had not been reporting for work nor provided any reason for his absence, he had “broken” his contract of service with the Employer. It added that the employment contract was terminated. Upon his acquittal of the charges in June 1997, the Employee sought to be reinstated to his previous
employment but the Employer refused. The Employee sued the Employer for wrongful dismissal9 and claimed damages.
7 The Employee subsequently claimed, inter alia, in his amended statement of claim that his dismissal by his Employer was contrary to the rules of natural justice as he was dismissed without a hearing. He claimed that the employment contract mandated the Employer to give him a hearing and that the Employer was in breach of certain provisions in the PPM.
8 In response, the Employer applied for the court’s determination of the following questions of law pursuant to O 14 r 12 of the Rules of Court:10
(a) Whether the contract of employment between the Employee and the Employer gives rise to the principle of audi alteram partem11 and/or principles of natural justice; and
(b) Whether any relief for an order for reinstatement may be claimed by the Employee arising from the non-conduct by the Employer of an inquiry prior to termination of the Employee’s employment.
9 At the same time, the Employer applied, in the alternative, for portions of the Employee’s amended statement of claim to be struck out.
10 Upon hearing the questions of law, the Deputy Registrar of the Subordinate Courts struck out those portions of the Employee’s amended statement of claim relating to the breach of the rules of natural justice, the reinstatement of employment and loss of salary. The upshot of the Deputy Registrar’s decision was that the Employee could not claim any one or more of the following at the trial:
(a) that his dismissal was in breach of the rules of natural justice;
(b) for an order of reinstatement to his former employment; and
(c) for loss of salary.
11 The appeal by the Employee against the Deputy Registrar’s decision was later dismissed by the district judge. The learned district judge cited the Privy Council decision of Vasudevan Pillai v The City Council of Singapore12 (“Vasudevan”), which stated that “the relationship of master and servant gives rise to no application of the principle of audi alteram partem”.13 The matter went on appeal to the High Court. Rubin J allowed the appeal and decided that the application of the Employer for the court to determine the abovementioned questions of law were premature, ie the questions of law should be determined at trial only upon hearing the evidence. Rubin J opined that the Employer’s allegation that the Employee had breached the contract cannot be tested without an inquiry into whether the Employee was given the opportunity to explain his absence. In this regard, his Honour had referred to a particular provision of the PPM on “conduct and discipline” which, as argued by the Employee, required a hearing prior to dismissal.14
12 On the issue of loss of salary, Rubin J also felt that it was a matter best left to the trial judge after hearing the evidence. However, as regards the application for an order to reinstate the Employee to his former employment, the learned judge decided that, if the dismissal is based on misconduct under s 14(1) of the Employment Act,15 only the Minister can reinstate the Employee, not the courts.16 It is submitted, however, that s 14 is probably not applicable to the present case as there was no evidence that the Employee was dismissed from employment by
the Employer on the basis of “misconduct”.17
13 Following Rubin J’s orders, the case subsequently went before the trial judge18 in the subordinate courts. The trial judge held that the defendant was entitled to apply s 13(2) of the Employment Act to terminate the employment contract as the Employee had absented himself from work without making the attempt to inform his Employer. The trial judge found that the general PPM provision on “conduct and discipline” did not apply to the Employee’s case. In this regard, the trial judge took cognisance of a more specific dismissal section for absence-without-leave cases19 in the PPM which, even if it was incorporated in the employment contract, did not require a disciplinary inquiry to be conducted according to the trial judge. It is significant to note that this dismissal section (essentially a contractual provision) was substantially similar to s 13(2) of the Employment Act.
14 On the issue of natural justice, the trial judge referred to the English case of Ridge v Baldwin,20 the Privy Council decision of Vasudevan21 and the Singapore Court of Appeal case of Lim Tow Peng v Singapore Bus Services Ltd.22 The trial judge concluded that an
employment relationship does not give rise to the application of the principle of audi alteram partem on dismissal, consistent with the pronouncements of the district judge earlier...
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