Can I fire someone who refuses to return to work?

Is refusing to go back to the office a justifiable reason to terminate an employee in Singapore?

Can I fire someone who refuses to return to work?

While communicating a formal request to return to the workplace is within employers’ legal rights in Singapore, what measures can you take if an employee refuses to do so?

An overwhelming majority of employees have voiced their preference to continue working remotely or from home. However as one industry thought leader put it plainly, employees may want one thing, but it may not be the best course of action for the business.

It’s then up to leaders to strike the right balance between offering the best support for employees, and deciding how to align that with business needs.

Read more: Return to work: What employees expect from HR

As leaders plan the most ideal working model for their organisations, HRD spoke to a team of employment lawyers at Ashurst to get a better idea of what you can and cannot do in Singapore.

In the second article of this two-part series, we’ll find out from Dawn Tan, Director at Ashurst ADTLaw as well as Karen Mitra, Senior Associate at Ashurst if you can fire someone for refusing to go back to the workplace.

The first part can be found here: Can HR order employees back to the office?

HRD: Is a refusal to return to the office considered ‘just cause’ for firing an employee in Singapore? How can HR avoid getting charged with carrying out unfair dismissals?

Ashurst: Whether a refusal to return to work is ‘justifiable reason’ or ‘just cause’ to terminate employment will depend on whether the employer’s requirement to return to the workplace meets the threshold of lawful and reasonable direction and if so, whether the employee has a valid reason for failing to comply with that direction.

Given the ongoing COVID-19 pandemic, employers should take a very conservative view on this point.

Where an employee expresses genuine concern about a return to work requirement, HR should work through those concerns with the employee, to see if an agreement can be reached regarding the requirement to return to work.

Disciplinary action should only be considered as an absolute last resort – likely where the employee’s presence in the office is necessary for the performance of their duties, or for some other compelling reason such as whether the employee has repeatedly failed to comply with the instruction to return and does not have a valid reason for that failure.

Read more: Back to the office? The HR checklist for returning to work

HRD: How should HR deal with resistant employees during a return-to-work initiative?

Ashurst: In the first instance, they should try and understand the reasons for the resistance.

Employees who are more vulnerable, such as pregnant women, seniors or those with underlying health conditions, may have a legitimate basis to decline the request to return to the office and it might be appropriate for those employees to continue to work from home.

Employees might have concerns about safety, scheduling or other matters that can be fairly easily resolved through an agreement or explanation as to how the return will work.

So early communication regarding the return to work and proactive discussions with employees who have concerns will be key.

Where possible, employers should try and be flexible about return to work arrangements where employees have expressed legitimate concerns.

Read more: How to protect employees returning to the office?

Disclaimer: ADTLaw LLC and Ashurst LLP together form Ashurst ADTLaw in Singapore. Ashurst LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, we will refer the matter to and work with licensed Singapore law practices where necessary. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.

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