Amendments to the Singapore Employment Act: The Employment Claims Tribunal – Part 3

This post is the last in our series on the Employment (Amendment) Bill (the “Bill”) which was passed by parliament on 20 November 2018. We discuss the amendments to the Employment Act (Cap. 91) (the “EA”) and how it may affect you, whether you are an employee or an employer. Click here and here if you wish to view our previous posts on the Bill. The Bill can be found here .

A. Statutory Annual Leave
Statutorily provided annual leave is presently only found in Part IV of the EA which applies to a certain group of employees. Annual leave for employees who fall outside of Part IV of the EA will be accorded according to the terms of the respective employment contracts.

The Bill will shift the annual leave provision out of Part IV of the EA into the general section of the EA. As mentioned in our first post, the Bill will cover nearly all employees (save for public servants, domestic workers and seafarers – who are covered under separate legislations) and therefore these employees will soon all be entitled to statutorily provided annual leave.

The method of calculation of the amount of annual leave which an employee is statutorily entitled to remains unchanged and can be found in the new Section 88A.

B. Salary Deductions
The Bill would require employers to obtain their employees’ written consent before making any deductions from their salary for the following:
i. deductions for house accommodation supplied by the employer;
ii. deductions for such amenities and services supplied by the employer
iii. any other deductions which are not identified in the EA

At present, deductions for house accommodation supplied by the employer and deductions for such amenities and services supplied by the employer can be made without the employee’s consent.

The Bill also accords further protection to employees in this respect as it expressly provides that an employee’s written consent in relation to the above deductions may be withdrawn by the employee at any time before the deduction is made by giving a written notice of withdrawal to the employer. Importantly, the employee cannot be penalised by the said withdrawal of consent.

The Bill will remove the ability of an employer to make deductions for the actual cost of meals supplied by the employer at the request of the employee. Further, the Bill will entitle an employer to deduct sums for “unearned employment benefits” which will include things such as annual leave taken in advance. Employers will be pleased to note that the ability for employers to make deductions for salary over-payment(s) remains unchanged.

C. Sick & Hospitalisation Leave
i. Sick Leave
Employers are required under the present EA to accord paid sick leave only if the medical certificate is issued by Government or employer-appointed doctors. This measure was put in place since the enactment of the EA in 1968 to combat frequent absences due to fictitious medical certificates.

Doctors today are registered under the Medical Registration Act (Cap. 174) and are subject to the Singapore Medical Council Ethical Code and Ethical Guidelines. There is therefore no longer a need to distinguish between medical certificates issued by different groups of doctors where paid sick leave is concerned. As such, the Bill provides that employers must recognise medical certificates issued by any registered doctor or dentist.

ii. Hospitalisation Leave
At present, an employee is deemed to be hospitalised for the purposes of determining the hospitalisation leave entitlement under the EA as long as the employee is certified ill enough to require hospitalisation irrespective of actual hospitalisation.

The Bill will change this position so that an employee is only deemed hospitalised for the purposes of determining the hospitalisation leave entitlement under the EA if:

i. warded in an approved hospital; and

ii. upon discharge is certified by a medical practitioner from said approved hospital that the employee is ill enough to need to remain hospitalised during that period or the employee will need to rest during that period in order to recover.

D. Retrenchment
The Bill would require an employer to furnish information on the retrenchment of any employee if required to do so by the Commissioner for Labour and a breach of this obligation will be regarded as a civil contravention such that an errant employer may be subjected to payment of administrative penalties.

This provision is in addition to the current obligation on employers who employ at least 10 employees to inform the MOM if 5 or more employees are retrenched within any 6 month period beginning 1 January 2017.

Please contact Kim Seah at Kim.Seah@incisivelaw.com at  for any employment law related enquiries.

 

Amendments to the Singapore Employment Act: The Employment Claims Tribunal – Part 2

This post is the second in our series on the Employment (Amendment) Bill (the “Bill”) where we discuss the proposed amendments to the Employment Act (Cap. 91) (the “EA”) and how it may affect you, whether you are an employee or an employer. Click here if you wish to view our first post on the Bill. The Bill can be found here.

I. The Employment Claims Tribunal

The Employment Claims Tribunals (“ECT“) was established under the Employment Claims Act 2016 with the aim to provide employees and employers with a speedy and low-cost forum to resolve their salary-related disputes. Parties must first register their claims at the Tripartite Alliance for Dispute Management (“TADM”) for compulsory mediation and thereafter, only disputes which remain unresolved after mediation at the TADM may be referred to the ECT.

A total of 1,190 employment claims were filed at the State Courts in the year since it launched the ECT on 1 April 2017. According to the State Courts approximately 78% of the types of claims referred to the ECT involved unpaid or short payment of salary or allowance. Other common claims referred to the ECT include disputes in respect of overtime pay and salary in lieu of notice.

Claims in respect of wrongful dismissal are presently dealt with by the Ministry of Manpower (“MOM”). If an employee feels that his/her dismissal is unfair, he/she may submit a written appeal to the Minister of Manpower who, if satisfied that the dismissal is unfair, may order the employer to either (1) reinstate the employee to the former job; or (2) pay the employee a sum of money as compensation.

The Bill will see employment disputes mechanisms streamlined as the ECT will have an increased jurisdiction to hear both salary and wrongful dismissal related claims.

II. Wider Definition of Dismissal

Another welcome change would be the expansion of the definition “dismiss” in the EA.

Presently, Section 2(1) of the EA defines “dismiss” to mean “the termination of the contract of service of an employee by his employer, with or without notice and whether on the grounds of misconduct or otherwise”.

The Bill will amend this definition to mean “to terminate the contract of service between an employer and an employee at the initiative of the employer, with or without notice and for cause or otherwise, and includes the resignation of an employee if the employee can show, on a balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of any conduct or omission, or course of conduct or omissions, engaged in by the employer”.

Upon the Bill coming into effect, an employee’s involuntary resignation will be recognised as a form of dismissal if the employee can satisfy the requirements found in the amended definition of “dismiss”. This will therefore allow an aggrieved employee who has been the subject of constructive dismissal an extra avenue of recourse: the ECT.

Look out for our upcoming posts on the Bill where our discussions will include changes to sick and hospitalisation leave , obtaining consent from the employee when making deductions to salary and more!

Please contact Kim Seah at Kim.Seah@incisivelaw.com for any employment law related enquiries.

 

Amendments to the Singapore Employment Act: How will it affect you? – Part 1

On 2 October 2018, the Parliament of Singapore tabled the Employment (Amendment) Bill (the “Bill”). The Second and Third Reading of the Bill is expected to be sometime in November 2018. If the Bill is passed by the Parliament in its present form and with the President’s assent, the amendments to Employment Act are scheduled to take effect on 1 April 2019.

This post is the first of our series on the Bill where we will discuss the proposed amendments to the Employment Act (Cap. 91) (the “EA”) and how it may affect you, whether you are an employee or an employer. The Bill can be found here.

I. The Big Change
The biggest amendment which the Bill brings would be the removal of the salary cap of SGD4,500/month for professionals, managers and executive (“PMEs)”. This group of PMEs is presently excluded from the EA.
The removal of the salary cap will mean that nearly all employees (save for public servants, domestic workers and seafarers – who are covered under separate legislations) will be entitled to the benefits conferred by the EA.

Employers should conduct a comprehensive review of their employment contracts to ensure that they will be compliant with the EA when the amendments take effect. In a similar vein, employees should familiarise themselves with the statutory benefits conferred by the EA and understand any additional benefits which they may have.

The statutory benefits conferred by the EA include a minimum of 7 days of annual leave (the material section of the EA will be shifted out of Part IV of the EA which only covers certain employees and will be further discussed below), 14 days of paid sick leave and 60 days of paid hospitalisation leave, maternity benefits and childcare leave, and redress for wrongful dismissal.

II. Part IV of the EA- Raising the Salary threshold
The amendments will see the monthly salary cap in respect of non-workmen increased from SGD2,500 to SGD 2,600. This increase will see more non-workmen benefiting from benefits conferred by Part IV of the EA such as stipulated mandatory rest days, maximum hours of work, and statutory overtime pay.

In this regard, it is important to note that the salary cap for calculating overtime pay for non-workmen will also be increased to SGD 2,600.

Employers should take note of these amendments should their employee(s) now fall within Part IV of the EA as there are serious consequences should an employer not adhere to the provisions Part IV of the EA or fail to pay any salary according in to the provisions Part IV of the EA such as a fine not exceeding $5,000 for the first offence, and heavier fines and a possible jail term for subsequent offences.

Look out for our upcoming posts on the Bill where our discussions will include the revamped Employment Claims Tribunal, wrongful dismissal claims;  obtaining consent from the employee when making deductions to salary and more!

Please contact Kim Seah at Kim.Seah@incisivelaw.com for any employment law related enquiries.

 

Injury out of scope covered by WICA provisions

Incisive Law Workplace Safety

Whether “something in fact transpired in the course of his work which made the injury occur when it did” is crucial to compensation claims
In a recent High Court decision, the Singapore High Court allowed the appeal brought by an employer’s insurer against an assessment of S$272,500 compensation awarded against it by the MOM in accordance with the Workman Injury Compensation Act (“WICA”). The claim arose after a construction worker was found motionless at his place of work, later diagnosed to have suffered an intracerebral hemorrhage (“ICH”) and remained in a coma since.

There were two grounds of appeal:

(i) that the Notice of Assessment (“NOA”) filed by the worker’s wife was null and void because it was not made within 12 months of the incident; and (ii) that there was no evidence that the worker’s condition arose in the course of his employment. We will first discuss the second (and arguably more pertinent) ground, (a) No evidence that the worker’s condition arose in the course of employment. The Court was satisfied that the worker had in fact suffered from hypertension and had left his condition untreated for many years.

Although the spirit of WICA is to provide compensation to a worker for injuries sustained in an accident at his workplace even if there is no one at fault for causing that injury, or even if he had himself been responsible for the mishap that caused him injury, the thin line that the court draws is premised on whether there was any evidence that something in fact transpired in the course of his work which made the injury occur when it did . No such evidence in this case. Thus compensation claim cannot succeed.

The Court went on to draw an analogy between this tragic case of ICH and the hypothetical scenario of an employee suffering a stroke or heart attack at home, unless the employee who suffered the heart attack or stroke suffered it at his workplace after something had transpired that made the injury occur when it did.

In the writer’s view, notwithstanding the Court’s analogy, in light of the advent of alternative work arrangements it remains to be seen whether evidence that an employee who had a pre-existing condition suffered a stroke or ICH triggered by something that transpired from work albeit outside of a conventional workplace, would give rise to a successful compensation claim.

(b) The validity of the NOA
When the wife first filed the NOA in 2014 she had not been made her husband’s legal deputy. She was only appointed as deputy in July 2015. As such, the first NOA was technically a nullity. While she filed another NOA in 2016 the insurer challenged this because it was filed 33 months from the date of the incident.

The High Court held that even though the NOA/claim was filed out of time, it would not be necessarily barred if it is found that the delay was occasioned by a mistake, absence from Singapore or some other reasonable (or “understandable”) cause.

In this case, although the delay was for a period of almost three years, the Court noted that this was because (by and large) it was only when a later 2016 case was published that it became clear that it is imperative for a claimant to be a properly appointed deputy at the time of claim. The delay in this case was thus reasonable in the wider sense of being understandable.

In conclusion, while it can be seen that “out of time” claims filed by an injured employee’s family may still succeed, technical lapses will render the entire process lengthier and costlier (in this case, the matter went through two assessments before the Assistant Commissioner for Labour and one appeal before the High Court) and eventually hinges entirely on judicial discretion as to whether the technical lapse was reasonable. Hence, it is always prudent to seek prior legal advice so as to ensure that a claim is filed in a timely and accurate manner, avoiding technical challenges.

 

Insurer fails in bid to reject claim for foreign worker’s medical expenses

Incisive-Law-Employment-Tribunal-Claim

In a decision[1] welcomed by employers and employees alike, the Singapore Court of Appeal (“CA”) has rejected an insurer’s argument and allowed the appellant’s claim for medical expenses arising out of a road accident in which the appellant (a foreign worker) and other local and foreign workers were injured due to the driver’s undisputed negligence.

The negligent driver’s insurer raised a curious but not unintelligent challenge to the claim for medical expenses, on the argument that since the appellant was a foreign worker and his employer is obliged under the law (namely the Employment of Foreign Manpower Act (“EFMA”) read with the Employment of Foreign Manpower (Work Passes) Regulations 2012 (“EFMR”) (collectively, “the Rules”)) to pay for the medical treatment of the foreign worker, then even in an accident scenario the employer must bear the medical expenses and cannot claim against the driver’s insurer.  The insurer further argued that allowing the claim would lead to double recovery.

In our view, the CA rightly disagreed with the insurer at various levels, of which we will highlight just two.

(1) The CA distinguished between the employer’s obligation under the Rules to pay for medical treatment in ordinary situations where there is no tortfeasor vs situations where the injury or need for treatment arises out of a tort.  Surely, in the latter scenario, the employer or the employee must be entitled to pursue its claim against the tortfeasor.  The Rules are not intended to abridge the recovery of medical expenses as between a tortfeasor and a victim, It could not be the case that the effect of the Rules would be to exonerate the tortfeasor of his common law obligation to pay for the victim’s medical expenses notwithstanding his negligence.

(2) There is no material risk of double recovery.  Whether the employer is able to claim reimbursement from his EFMA insurer is a matter between employer and insurer. If there were fraud or falsification of claims on the employer’s part, other consequences including criminal liability may follow. As between employer and employee, there can be a non-recourse loan agreement which obliges the employee to turn over to the employer any expenses recovered from the tortfeasor).

In conclusion, although it remains the broad and uncompromising duty of the employer to make payment of its foreign employees’ medical expenses even if these were occasioned by a third party tort, this does not preclude the foreign employee/his employer from recovering such expenses from the tortfeasor. This, we say, ought to be the case.

The CA also took the opportunity to opine that in a situation where the victim-foreign employee is not in a financial position to bring a suit against the tortfeasor, maintenance and champerty would not be obstacles to the provision of litigation financing by the employer insofar as the employer having made the payments for the medical expenses, would have a genuine and substantial interest in the enforcement of the claim.  This is music to the ears of many an injured foreign employee worried about the cost of enforcement.

[1] Minichit Bunhom v Jazali bin Kastari and another [2018] SGCA 22