Dismissals

How to manage employment termination.

What Is Wrongful Dismissal

According to the Employment Act, wrongful dismissal is the dismissal of an employee without just or sufficient cause. Dismissal is the termination of employment by an employer, with or without notice, including salary-in-lieu of notice. It also includes involuntary resignation.

Examples of Wrongful Dismissal

Unsubstantiated Misconduct

Dismissal due to misconduct is wrongful if:

  • The employer did not conduct an inquiry .
  • The employer is unable to substantiate the case.

Misconduct includes but is not limited to theft, dishonest or disorderly conduct at work, insubordination, and bringing the organisation into disrepute.

Example:

A was employed as a preschool teacher. He hit a student. An inquiry was done which established this fact. The employer dismissed A on the ground of misconduct, as hitting a student fell short of the conduct expected of a teacher towards his students.

This dismissal was due to misconduct, and was not wrongful as it was based on the following:

 
  • Hitting a student fell short of the conduct expected of a teacher towards a child under his care and protection; and
  • A was given a chance to be heard, but could not offer any legitimate explanation for falling short of the conduct expected of him.


Unsubstantiated Poor Performance

Dismissal due to poor performance is wrongful if:

  • The employee was dismissed without notice.
  • The employer is unable to substantiate the case.

Example:

B was employed as a warehouse assistant. She was involved in multiple incidents that resulted in poor quality services provided by the warehouse. Her supervisor documented these shortcomings in the performance reviews. Despite this, her performance did not improve. The employer dismissed B with notice and stated that this was because of B’s poor work performance.

This dismissal was not wrongful. There was documented proof of B’s poor performance and the employer rightly exercised his right to terminate (with notice) the employment.

If, on the other hand, the employer terminated the contract without notice, the dismissal would have been wrongful because it is not clear that B’s performance was so poor as to amount to misconduct. Furthermore, the employer had not conducted a proper inquiry and given B a chance to be heard.


Discrimination

Dismissal with notice is wrongful if the employee can substantiate a wrongful reason for the dismissal (e.g. discrimination due to age, race, gender, religion, marital status and family responsibilities, or disability).

Example:

An employer dismissed E with notice. No reason was given for the dismissal.

But E reported that the employer had made numerous discriminatory remarks about the employee’s race, stating that he preferred to hire someone of another race. This was confirmed by other employees.

Even though the employer dismissed E with notice, the employer’s conduct showed that he adopted a discriminatory attitude towards E. Taken together, the facts support the conclusion that the employer dismissed E because of discrimination. Hence, the dismissal was wrongful.


Deprivation of Employee Benefits/Entitlements

Dismissal with notice is wrongful if the employee can substantiate a wrongful reason for the dismissal (e.g. deprivation of benefits or entitlements the employee would otherwise have earned).

Example:

F informed her employer of her pregnancy. She had worked for her employer for 3 years. The employer dismissed her with notice soon after, without paying her maternity benefits.

The facts suggest the dismissal was with a view to deprive her of her maternity benefits because:
  • The employer was unable to provide a legitimate reason for the dismissal
  • The employee was dismissed shortly after she informed her employer of her pregnancy; and
  • The employer did not pay the employee her maternity benefits.


Punishment for Exercising an Employment Right

Dismissal with notice is wrongful if the employee can substantiate a wrongful reason for the dismissal (e.g. punishment for exercising an employment right).

Examples:

G was a workman earning less than $4,500. He declined his employer’s request to work overtime as he needed to take care of his infant child. The employer dismissed him with notice. The employer told G that he could not afford to have someone who prioritised his care-giving duties over working overtime.

The dismissal was wrongful as there was substantiated evidence from G that the employer wanted to punish the employee for exercising his statutory right to decline to work overtime due to his care-giving duties.
H filed a mediation request with TADM as his employer had not paid him his salary for 3 months. The employer dismissed him with notice after finding out that he had filed a request for mediation with TADM. The dismissal was to punish H for exercising his right to file a mediation request with TADM, and was wrongful as the facts indicate that it was to punish H for seeking remedy at TADM.


Provision of False Reasons for Dismissal

Dismissal with notice is wrongful if the employer provides a false reason for dismissal.

Example:

J was told by his employer that his company was restructuring, and his job would no longer exist. He was then dismissed with notice. J later found out that what his employer said was not true. In fact, there remained a vacancy for the exact job he used to do, and his former employer had recruited someone else to fill his post.

On the face of it, this is a case of dismissal with notice. The employer did not need to provide a reason. But he provided a reason, which was shown to be untrue. Hence, the dismissal was wrongful.


Examples of Dismissals That Are Not Wrongful

Dismissal with Notice

Both employers and employees have a right to contractually terminate employment with notice. If the employer did not give any reason for the dismissal, it is presumed not to be wrongful.

Example:

C was dismissed with notice. His employer did not give any reason for the dismissal. When C asked for a reason, the employer continued to not give a reason, and explained that it was termination in accordance with the contract. C is unable to point to any facts, incidents or situations which could suggest that the employer’s intention was anything other than termination in accordance with the contract.

This dismissal with notice was not wrongful.

To successfully claim that a dismissal with notice is wrongful (where no reason is given for the dismissal), an employee must substantiate a wrongful reason for the dismissal (e.g. discrimination). If an employer gives a reason for dismissal with notice, but the reason given is proven to be false, the dismissal would also be wrongful.


Redundancy

Employers should refer to the Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment (PDF) to avoid or minimise the need for retrenchment.

Employers may cite retrenchment and dismiss an employee with notice if:

  • There is excess manpower.
  • The company is undergoing restructuring.
  • The old job no longer exists.
  • The employee's job scope has changed.

Example:

An F&B establishment underwent restructuring to focus on its food operations and less on its bar operations. As a result, the employer dismissed the bartender, D, with notice. D claimed that his dismissal was wrongful.

The dismissal was on the ground of redundancy and was not wrongful. The employer was indeed changing his business model and no longer needed the services of D.

 

Why It Matters

When you dismiss an employee, it may also create feelings of anger, resentment, mistrust and uncertainty within the workplace. Being objective and compassionate in such situations will help you to reduce distress and keep staff morale.

Note:Employees can report unfair or discriminatory dismissals to TAFEP or file a mediation request with the Tripartite Alliance for Dispute Management .

What You Must Do to Be Fair

The Tripartite Guidelines on Fair Employment Practices and Tripartite Guidelines on Wrongful Dismissal state what you must do as a fair employer:

  • Dismiss with notice or salary-in-lieu of notice, unless misconduct is the reason for dismissal.
  • If misconduct is the reason for dismissal, prove the grounds for dismissal and conduct an inquiry to allow employees to present their case before you decide on dismissal.
  • If redundancy is the reason for dismissal, carry out responsible retrenchment exercise responsibly.
  • Pay your affected employee on the last day of employment or within three working days from the date of dismissal.
dismissal

Tripartite Guidelines

Refer to the Tripartite Guidelines on Fair Employment Practices to ensure that you abide by the guidelines on all the relevant practices.

How to Be Progressive

Here are some progressive employment practices you can consider.

Communicate Expected Conduct During Onboarding

When onboarding new employees, you should inform them about the expected conduct in your workplace. You should also educate them on the disciplinary procedures or policies you have.

Manage Dismissals Fairly

You should be objective when dismissing an employee on the grounds of poor performance, misconduct, or failure to fulfil their duties and responsibilities.

We encourage you to go beyond the practices presented here. You can browse our resource collection to get tips, tools and ideas and learn from case studies and interviews with progressive employers.

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