Unfair dismissal is a term used by many people to describe a situation where their employment has been terminated, and they believe the reasons for doing so or how it was done are unfair.

However, legislation defines the parameters of wrongful dismissal, and an unpleasant termination of an employment contract may not be unfair in the eyes of the law.

Singapore laws protect employees against unfair and wrongful dismissal and include situations where employment is terminated by the employer without just or proper cause, even if the correct notice period is given.

An employee claiming unfair or wrongful dismissal can pursue their case in court or make a claim via the Ministry of Manpower (MOM).

What constitutes a dismissal?

A dismissal occurs when an employee’s contract is terminated: this can be with or without notice. An employee forced to resign from their position unwillingly also constitutes a dismissal, known as involuntary resignation. The big question for all employees is whether the dismissal valid?

A dismissal can be considered valid or proper if it was made for certain reasons:

  • Misconduct – this could be inappropriate handling of stock, theft, or harassment of other staff members, amongst others.
  • Inadequate performance – the required standards of work are not met on a consistent basis.
  • Redundancy – due to a change in operating policy, a reduction in the workforce is required due to trading conditions or automation of processes.

An employee can still challenge a valid dismissal if the correct procedures are not followed first. This might be a failure to observe the proper consultation period before making staff redundant or conducting a formal inquiry into an employee’s alleged misconduct.

The courts and the Ministry of Manpower set the bar high for dismissal on the grounds of misconduct.

When is a dismissal unfair or wrongful in Singapore?

A dismissal can follow the correct employment protocols or organisational policies with notice given, but can still be wrongful if it was made on any of the following grounds:

  • Discrimination
  • Unsubstantiated or unclear grounds
  • Deprivation of employee benefits or entitlements, for example, maternity, paternity leave, or redundancy payments
  • Imposing a penalty for pursuing an employee’s right

These scenarios are taken from the Tripartite Guidelines on Wrongful Dismissal published by the Ministry of Manpower (MOM) in 2018.

Discriminatory grounds

There are many potential bases for discrimination, and some examples include the termination of employment because of:

  • Age
  • Gender
  • Pregnancy
  • Family responsibilities, including caring for children or the elderly
  • Disability
  • Race or nationality
  • Religion

Evidence of discrimination may be provided in the formal reasons for dismissal or, more likely, the circumstances, facts and conversations leading up to the termination of employment.

Unsubstantiated grounds

An employer must be able to prove the grounds for dismissal. An employee can challenge a dismissal if the weight of evidence is insubstantial or simply not present.

The most common ground for dismissal is poor performance or misconduct, and an employer who has not taken the time to gather and log evidence could find themselves open to challenge from the employee.

Even if the employee has not delivered a performance that is adequate for the job or has done something which constitutes misconduct, they can still challenge the dismissal if the employer does not prove or substantiate it.

Dismissal because of misconduct requires a process of inquiry where the employee can present details of their side of the story. For example, an act that constitutes misconduct could have been provoked or caused by another staff member’s behaviour.

Summary dismissal for misconduct without following a proper protocol for investigation will allow an employee to mount a challenge.

Deprivation of employee benefits

The most common scenario is dismissal due to ill health, especially protracted ill health, where the employee claims medical entitlements under their employment contract or legislation. Pregnancy is another example.

Another example is hidden redundancy, such as retrenchment, where the employer tries to avoid paying redundancy benefits. Redundancy can also be used as a disguise for other forms of unfair or wrongful dismissal.

Imposing a penalty for exercising an employment right

An employee has many employment rights which may be provided for in their contract of employment, or by statute, or both. If an employee is exercising or trying to exercise an employment right, they cannot be dismissed.

An employee might lodge a complaint against an employer about workplace bullying that the employer fails to manage, after which the complaining employee’s employment contract is terminated. This is an example of penalising an employee via dismissal when trying to exercise an employment right.

What does the Employment Act say about terminating a contract of employment?

Sections 9-11 of the Employment Act provide for the termination of an employment contract in three different ways:

  • With written notice – the period for the notice is usually written into the contract. It may be longer for more senior staff. If no timeframe is specified, then the legislation steps in under Section 10(3), which fills the gap.
  • On contract expiry – this is when a contract ends either because it is fixed term or because the work specified in it has reached a natural conclusion.
  • Without any notice – immediate or summary dismissal.

The triggers for summary dismissal are limited as defined by legislation, and include breach of the contract terms amounting to misconduct.

Section 14(2) gives an employee the right to lodge a claim for wrongful dismissal. A successful claim can provide two possible remedies, either reinstatement of employment or compensation.

The Tripartite Guidelines on Wrongful Dismissal

TADM was set up by the MOM, National Trades Union Congress (NTUC) and the Singapore National Employers Federation (SNEF). TADM provides employees with support services, mediation, and basic legal advice to resolve employment problems.

The Tripartite Guidelines provide supplementary support to the Employment Act. These were issued by the Ministry of Manpower, which can take action against employers if they do not comply. Employees can file a complaint with MOM through the Tripartite Alliance Dispute Management or TADM.

Remedies for the employee

Employees with a claim for wrongful dismissal can pursue a case through the courts if they have a claim for damages or file a complaint with the Ministry of Manpower via the Tripartite Alliance Dispute Management (TADM) protocol. If a case is not successfully resolved with the TADM, it can be escalated to the Employment Claims Tribunal (ECT). TADM and ECT have a maximum claim limit of S$20,000.

Lawyers cannot attend TADM or ECT proceedings, although employees can take professional legal advice to help present their claims.

Final thoughts

Terminating employment should be done with care, as employers can easily fall foul of legislation and regulations even if they have legitimate cause to get rid of an employee. Dismissal must be based on just cause, and a correct protocol followed if an employer is to be safe from future claims from a disgruntled employee.

This content was written and reviewed by a lawyer but it does not constitute legal advice. We always recommend engaging a lawyer before taking any legal action.

Frequently asked questions

Can my employment contract contain a provision for dismissal even though the legislation does not permit it?

The employer’s right to terminate employment should be detailed clearly in the terms and provisions. However, an employment contract cannot contain less favourable terms to an employee when compared with their rights under the Employment Act.

Even if the contract provides for the termination of employment in situations contrary to the Employment Act or the Tripartite Guidelines for Wrongful Dismissal, and the employee has signed the agreement, the employer cannot rely on these.

How can I prove a case of wrongful dismissal?

Unless it is clear from the reasons for dismissal that the termination of employment is wrongful, an employee will need to gather evidence to prove the basis for their claim.

Evidence may include details of scenarios or conversations with the employer and witness statements from other staff members which support the claim because they saw or heard certain acts or conversations. There could also be documentary evidence, such as the employee’s staff record.

What is involuntary resignation?

Involuntary resignation is where the employer does not dismiss an employee, but they feel they have no choice other than to resign due to issues in their working environment or their relationship with the employer. This is sometimes referred to as constructive dismissal.

Most employees claim they were forced to resign or put under duress to leave so the employer could avoid dismissal. Consequently, they were deprived of benefits such as a full period of notice or redundancy payments.

Is there a time limit to claim unfair or wrongful dismissal?

Employees have six years from the date of dismissal to take a claim to court. Claims made to MOM via the TADM must be brought within one month of the last day of formal employment. For women dismissed during pregnancy, there is a more extended timeframe; claims can be brought up to two months from the date of birth of the child.