Protection from Harassment Act 2014 (“POHA”)
POHA provides for the criminalisation of certain harassing behaviour. For example, a person who acts in such a way (whether by behaviour, words or other forms of communication) as to cause another person harassment, alarm or distress, will be guilty of an offence. The offence is even more severe if the harasser had actually intended the victim to react in such a manner.
If you are a victim of any offence under POHA, you have the right to bring an action for damages in court for statutory tort pursuant to Section 11(1). If the court is satisfied on the balance of probabilities that the respondent has contravened that section as alleged by the victim, the court may award such damages in respect of the contravention as the court may, having regard to all the circumstances of the case, think just and equitable.
Monetary Compensation may not be sufficient in certain cases and where it is essential to ensure your personal security, you may seek a “Protection Order” pursuant to Section 12. If the District Court is satisfied on a balance of probability that the respondent has contravened any offence under POHA and such contravention is likely to continue or be committed, it may make a Protection Order if it is just and equitable in all the circumstances.
Additionally, Section 13 empowers the District Court to make an “expedited protection order” on an ex parte basis (without notice of the application) that will last for 28 days or until the hearing of the application for the protection order if you are able to adduce prima facie evidence that:
1. the respondent has contravened an offence under the PHA,
2. that such contravention is likely to continue or the respondent is likely to commit such contravention to you imminently, and
3. such contravention is likely to have a substantial adverse effect on your or your day-to-day activities,
and the District Court considers it just and equitable in all the circumstances for the protection order to be made on an expedited basis.
Employers’ exposure to potential liability for harassment
Although the Protection from Harassment Act (“POHA”) does not oblige employers to implement harassment prevention policies or avenues for internal review, guidelines for such policies have been set out by the Ministry of Manpower as part of its Tripartite Advisory. Employers should in any event take complaints of harassment very seriously.
Parliament has clarified that POHA applies to all “persons”, including “any company or association or body of persons, corporate or unincorporated”. Any company or organisation could potentially therefore be found guilty of an offence under POHA if its behaviour was found to amount to harassment. If a company produced a communication which the courts found to be threatening, abusive or insulting against a victim, it could be held liable and be sentenced to pay a fine and/or damages to the victim.
Employers owe a general duty to take reasonable care in relation to employees, and such duty includes ensuring a safe place for the employee to work in, mutual trust and confidence, and appointing competent staff. Employment of an individual knowing that he poses a source of danger/physical/mental harm to other employees is something which could flout the employer’s general duty of care.
The employer may be vicariously liable if the harassment was committed by another employee, where such acts were committed in the course of employment being an act so closely connected with the employee’s employment that it is fair and just to hold the employer vicariously liable. This means that the employer may be liable even if he was not directly involved in the act(s). If vicarious liability is established, the employer will be obliged to pay any damages awarded to the victim which the harasser would otherwise be liable for.
For example, where an employee is high enough in the corporate hierarchy, it might be possible to equate the actions of the officer to the entity itself, as in the Australian case of Trolan v WD Gelle Insurance  NSWDC 185, although this has yet to be tested in the Singapore courts. Outside of POHA, an employee retains the right to bring a civil action against his/her employer in cases of harassment.
“Arising out of and in the course of his employment” – this phrase which encompasses two concepts – what does it mean?
An employer’s liability for compensation under the Work Injury Compensation Act (“WICA”) is set out at section 3(1) read with Section 3(6) which reads:
Employer’s liability for compensation
3.—(1) If in any employment personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with the provisions of this Act.
3.–(6) For the purposes of this Act, an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, to have arisen out of that employment.
It is noteworthy that “arising out of” and “arising in the course of” are two separate and distinct concepts. An accident has to satisfy both requirements before it qualifies for compensation under section 3(1) of WICA. An accident arising out of the employment requires a causal connection between (a) the employment (and its incidents) and (b) the accident. In contrast, an accident arises in the course of the employment if it bears a temporal relationship with the employment.
The employee does not need to prove that the injury arose “out of and in the course of the employment” – it is the accident which needs to have arisen “out of and in the course of the employment” for an employee to be entitled to compensation under WICA.
Where an employee suffers personal injury caused by an accident which took place in the course of his/her employment, the presumption at section 3(6) of WICA kicks in and the burden of proof then shifts to the employer to prove that the accident had not arisen out of the employee’s employment.
MOM says: “Safety should never be taken for granted”
In a press release dated 17 May 2017, the Ministry of Manpower (MOM) announced that Commonwealth Culinary Creations Pte Ltd (CCCPL) was fined S$90,000 under section 11(a) of the Workplace Safety and Health Act for failure to ensure that its workplace is safe and without health risks to every person within the premises, which caused the death of an employee who slipped on the production floor on 21 August 2015.
MOM’s investigations revealed that CCCPL had failed to:
1. Keep floor conditions safe;
2. Provide anti-slip floor mats; and
3. Install warning signs.
None of the three precautionary safety measures mentioned above which should have been put in place to ensure workplace safety are novel or require excessive effort. Yet it is often precisely the most obvious of measures that are taken for granted. The consequence is unnecessary injury (or in this case, loss of life) for the employee and damage to the company’s reputation and finances. Borrowing from MOM’s press release: “Safety should never be taken for granted.”
Employer cannot rely on the fact that its worker did not have a work permit, to deny claim for damages arising out of employer’s negligence.
In a recent decision of May 2017, the Singapore High Court awarded an injured worker 80% of his claim for damages although the defendants (namely the employer Dongwu Steel Industry Pte Ltd and the employer’s director Mr Chen) argued that the worker was not entitled to claim as he was working for Dongwu without a permit.
At the time of the accident, the worker was employed by another company (SPG Marine) with a work permit only for his work for SPG Marine, and was moonlighting at Dongwu’s worksite at the instructions of Mr Chen.
The defendants argued that public policy militated against imposing a duty of care on the defendants as employers, as any contract of service entered into between the parties would have been contrary to the Employment of Foreign Manpower Act which clearly prohibits moonlighting by foreign employees. This argument was not accepted by the High Court as the judge noted that it “blatantly ignores the fact that the defendants themselves had breached the law by employing a foreign worker without a valid work permit to work for them”.
What this case tells us:
Do not assume that there is some lower degree of duty of care towards workers who assist on a shorter term basis. Employers should not “discriminate against employees whom they choose to hire despite knowing that it is illegal”.