A pregnant worker was dismissed with cost in lieu of discover. Dispute ensued and the employer introduced claims for the return of firm property and misappropriation of firm funds. The previous worker argued that her employment was terminated as a result of she was pregnant and filed counterclaims for wrongful dismissal. The Singapore District Courtroom in Longitude 101 Pte. Ltd. v Navinea Kanapathy Pillai [2024] SGDC 47 allowed the counterclaims and in doing so thought of the Tripartite Tips on Wrongful Dismissal (Tripartite Tips) in assessing what amounted to enough trigger underneath part 84(1)(b) of the Employment Act 1968 (EA).

This replace focuses solely on the worker’s counterclaim for wrongful dismissal.

Background

The defendant worker (Worker) was the only real worker and director of the plaintiff employer (Employer) on the time of the termination of her employment. The Worker’s employment contract supplied for 3 months’ discover or cost in lieu of discover.

On or round 15 December 2020, the Worker knowledgeable the Employer’s sole shareholder of her being pregnant. On 27 April 2021, the Employer issued a discover of termination to the Worker.

The discover of termination said, amongst others, that the termination was with rapid impact and that the Employer would pay the Worker 3 months’ wage in lieu of discover (S$43,500), in addition to an extra money bonus of S$15,000. No causes had been supplied for the termination, however the discover of termination referred to the appropriate to provide contractual discover.

Subsequently, the Employer commenced proceedings towards the Worker for her alleged failure to return firm property and for cost of a sum of S$100,500 allegedly misappropriated from the Employer’s financial institution accounts.

In response, the Worker argued that the termination was wrongful because it was attributable to her being pregnant and was in breach of part 84(1)(b) of the EA, and introduced counterclaims for damages.

Choice

Part 84(1)(b) of the EA gives {that a} feminine worker who’s pregnant and has served her employer for not less than three months shall not be disadvantaged of maternity advantages that might have been attributable to her underneath Half 9 of the EA if she was given a discover of dismissal with out enough trigger by her employer.

Definition of enough trigger

The courtroom noticed that the EA didn’t outline enough trigger for dismissal underneath part 84(1)(b), and there have been no reported choices clarifying this.

The courtroom then turned to the Tripartite Tips on Wrongful Dismissal (Tripartite Tips) on what constituted wrongful dismissal. The courtroom famous that, regardless that there was no particular reference to the Tripartite Tips within the EA, the Employment Claims Tribunals (ECT) had been required to have regard to the Tripartite Tips when deciding a wrongful dismissal dispute (together with such disputes referring to part 84(1)(b)). There was no cause why civil courts shouldn’t equally accomplish that to stop inconsistencies in choices, which may result in discussion board purchasing by events in search of probably the most beneficial venue for his or her wrongful dismissal claims.

On enough trigger, the courtroom discovered:

• giving contractual discover or paying wage in lieu of discover didn’t of itself quantity to enough trigger. Below the Tripartite Tips, it was wrongful to dismiss a pregnant worker with discover to deprive her of her maternity advantages the place: (a) the employer was unable to offer a legit cause for the dismissal, (b) the worker was dismissed shortly after she knowledgeable her employer of her being pregnant and (c) the employer didn’t pay her maternity advantages;
• retrenchment didn’t quantity to enough trigger;
• a dismissal with out discover on the bottom of misconduct, if the employer had not carried out due inquiry into the alleged misconduct, didn’t quantity to enough trigger;
• a dismissal attributable to discrimination didn’t quantity to enough trigger; and
• a dismissal to punish an worker for exercising an employment proper didn’t quantity to enough trigger.

Burden of proof

The courtroom highlighted a distinction within the authorized burden of proof for claims underneath part 84(1)(b) of the EA, relying on whether or not the declare was introduced underneath the Employment Claims Act earlier than the ECT or the Normal Division of the Excessive Courtroom, or in courtroom proceedings corresponding to the current matter:

• for the previous, the employer bore the authorized burden of proving {that a} pregnant worker was dismissed with enough trigger; and
• for the latter, the worker bore the authorized burden of proving that she was dismissed on the grounds of her being pregnant. The preliminary evidential burden fell on her to adduce some (not inherently unbelievable) proof that her dismissal was attributable to her being pregnant. Thereafter, the evidential burden shifted to the employer.

Findings

It was not disputed that the Employer was conscious of the Worker’s being pregnant on the time the discover of termination was issued. As famous above, termination with discover or cost in lieu of discover, with out extra, didn’t quantity to enough trigger. On proof, the Employer did not specify any causes for terminating the Worker’s employment with discover, and the courtroom discovered that the Employer failed to determine enough trigger for the Worker’s dismissal.

The courtroom granted the Worker damages which coated wage in lieu of discover, maternity profit underneath the EA (because the child was not a Singapore citizen), encashment of annual depart, the extra money bonus declared within the discover of termination and the associated CPF contributions.

Key Takeaways

Terminating a pregnant worker’s employment is a delicate matter and requires cautious dealing with. The brink to indicate that there’s enough trigger for dismissal entitling the employer to keep away from paying maternity advantages, is excessive. Giving contractual discover, with out extra, falls in need of this customary.

The courtroom’s reference to the Tripartite Tips additionally clarifies that the rules are related no matter whether or not the wrongful dismissal declare is introduced earlier than the ECT or in courtroom proceedings.

Herbert Smith Freehills LLP gives entry to Singapore regulation recommendation by way of our Formal Legislation Alliance with Prolegis LLC.

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