Wee Kim San Lawrence Bernard v Robinson & Company (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 26 December 2013
• Date: 26 December 2013
• Docket Number: Suit No 1036 of 2012 (Registrar's Appeals Nos 286 and 287 of 2013)
• Court: High Court (Singapore)

Wee Kim San Lawrence Bernard

Plaintiff

and

Robinson & Co (Singapore) Pte Ltd

Defendant

[2013] SGHC 279

Woo Bih Li J

Suit No 1036 of 2012 (Registrar's Appeals Nos 286 and 287 of 2013)

High Court

Civil Procedure—Striking out—Contract—Contractual terms—Implied terms—Whether there was breach of implied term of trust and confidence

Employment Law—Contract of service—Breach—Whether measure of damages for constructive dismissal would exceed that stipulated in terms of employment

The plaintiff (‘P’) was an employee of the defendant (‘the Employer’). A term of P's employment (‘the term’) was that written notice of termination from either party would be two calendar months or two calendar months' salary in lieu of such notice without assigning any reasons whatsoever. P tendered his resignation on 24 August 2012. The Employer paid him four months' salary in lieu of notice together with cash for his unconsumed annual leave even though his contract of employment stipulated for a payment of only two months' salary in lieu of notice. P claimed that although it was he who tendered his resignation, this was a case of constructive dismissal and filed the present action against the Employer for damages for the constructive dismissal. The Employer applied to have the claim struck out. The Employer submitted that even if P had been constructively dismissed, according to the term and case law, he was only entitled to two months' salary (leaving aside the question of mitigation) as the Employer was in any event entitled to terminate his employment by paying him two months' salary.

In response to the Employer's application to strike out, P filed an affidavit in reply. In an earlier application by P seeking discovery of certain documents, an assistant registrar (‘AR’) directed that copies of the documents that P sought could be referred to, but not exhibited. When P filed his affidavit, it cited passages from those documents. The Employer filed another application to have those specific paragraphs in P's affidavit (‘the paragraphs’) expunged because of the citing of the documents. Both summonses were heard by an AR who ordered the paragraphs to be expunged and have P's claim in the main action struck out. P appealed against the AR's decisions.

Held, dismissing both appeals:

(1) While P had not technically exhibited the documents, he had done so indirectly by reiterating the contents of parts of the two documents in his affidavit. In doing so, he was effectively doing that which he was not supposed to do. It was not the point that the paragraphs were of paramount importance to P. The AR's order allowed P to make reference to the documents but did not allow him to cite the actual contents: at [13] , [14] and [15] .

(2) According to the term and case law, P was entitled to two months' salary even if he were constructively dismissed. P's allegation that the termination of his employment was because he was a homosexual and the evidence which he was trying to rely on to prove his point were irrelevant: at [22] and [23] .

(3) P was required to show a breach of the implied term of trust and confidence in order to succeed in his claim that he was entitled to damages over and above the term of his employment. His statement of claim did not disclose any particulars relevant to establishing the breach. As regards the circumstances leading to his termination, P neither pleaded that the circumstances were known to others, nor that such circumstances put him at a disadvantage in seeking employment elsewhere. His claim for these ‘stigma’ damages was also not particularised as a breach of contract giving rise to financial loss: at [26] and [27] .

(4) In any event, the bare fact of P's termination could not be a ground to claim damages other than what P would be entitled to under his employment contract for a lawful termination, even if he was...