It's a legal minefield
In our virtual world of work, almost everything has gone remote. Leaders have had to hire and onboard remotely, which can make you wonder – while hiring remotely has become the norm, is terminating an employee over a call legal?
We find out what’s legal and required in Singapore when it comes to terminations.
Read more: What are top mistakes made by HR when firing employees?
What are the legal grounds for termination?
You can fire someone for various reasons, including poor performance, misconduct, or redundancy. Companies are not legally required to provide a reason for firing an employee, though the Ministry of Manpower (MOM) does encourage the practice to ensure closure and avoid any legal risks.
- Poor performance: Employee failed to perform their job according to the required standards or misrepresented their skill sets.
- Misconduct: There’s proof that the employee had engaged in dishonest or disorderly conduct at work.
- Redundancy: The employee’s job scope has changed, and the old job scope no longer exists.
If the termination is due to a misconduct, the company must hold a formal inquiry before taking any disciplinary action. You must also inform the employee when you plan to conduct the inquiry. There is no fixed procedure for an inquiry, but MOM suggests that the employee is made aware of the accusation or alleged misconduct, they should be given the opportunity to fight their case, and the person investigating the employee should not be in a position which may suggest bias.
As for redundancies, MOM reminds leaders to conduct fair retrenchment exercises and to support employee accordingly. Employers found guilty of disguising layoffs, for instance by saying the employee failed to perform on the job, to avoid paying retrenchment benefits will be punished.
Read more: Retrenchment: Employers should reassess business situation
What is a wrongful dismissal?
If your reason for firing an employee doesn’t fall within the three categories, you may be liable for a wrongful dismissal claim. Employees are entitled to file a claim with the tripartite alliance for dispute management (TADM), where the case will be investigated and be mediated.
If you have clearly stated the reason for the contract termination, but the employee disagrees with it, they will be required to present documented evidence. If you haven’t stated a reason, you will likely be asked to prove your case.
Wrongful dismissals in Singapore include:
- Clear discrimination of the employee based on age, race, gender, religion, marital status and family responsibilities or disability, or mental health status.
- Firing them to avoid providing employee benefits or entitlements, for example maternity benefits.
- A retaliation to punish the employee for exercising their employment rights, such as filing a mediation request to dispute salary-related claims.
If the dispute cannot be resolved at TADM, the case will be referred to the tribunal, where a judge will order the company to reinstate the employee to their former job and pay them for any loss of income throughout the process. Alternatively, you may be asked to pay a sum of money as compensation.
Is a termination letter mandatory?
If the employee has filed a dispute over the dismissal, one of the items that will need to be presented during investigations is a termination letter. And in Singapore, no matter how you first approached the employee to fire them – through the phone, a text or a video call – you need to prepare a termination letter. It is mandatory and must be in writing. If an employee does not receive the letter, they will still be considered an employee of the company.
The letter should include key information such as:
- Date of termination of employment
- Last day of employment
- Duration of notice period
To prevent any misunderstanding or disputes, MOM stated that it is good practice to get the termination letter signed or acknowledged.
Read more: Are errors in employment contracts still valid?
Termination with or without notice
Also, it should be known that you can legally fire an employee with or without notice. If the employment contract specified a notice period, you must either let them serve the period or pay compensation instead. However, both you and your employee can mutually agree on a notice period or waive it off completely.
You can fire someone without notice if they have breached the employment terms. In this case, whichever party that breached the terms of the contract must pay the compensation. You can fire someone without notice if the employee is:
- Absent from work continuously for more than two working days without approval and a good excuse.
- Absent from work continuously for more than two working days without informing and attempting to inform your employer of the reason.
Read more: Can I fire someone who refuses to return to work?
So can you fire someone over a call?
After the breakdown, there’s no indication by MOM whether you can or can’t fire someone over a call. In our current situation, if you really can’t meet someone in person and do the dignified thing of sitting them down for a chat, breaking the news over a video meeting is likely the minimum you should be doing. The bottom line is you’d still need to put it into writing and state the terms of the termination.
Leading employment lawyer, Goh Seow Hui, partner at Bird & Bird shared that it’s just an unfortunate product of our times. The pandemic has simply changed the way we work. Common HR practices like terminations will still take place every day – they just look wildly different that what we’re used to. “Now they have to be done remotely over Zoom,” she told HRD, “and there are challenges that come with that.
“Anyone who’s had to deliver these difficult and sometimes unpleasant, emotional conversations will know that not being able to do it in person, somehow takes away a little bit of that very important human connection. That human connection can make all the difference when you want to deliver a good exit conversation that takes into account the other party’s feelings and grievances, to achieve a parting that is on as amicable terms as possible. It will never be fully amicable in any situation, but [the connection] allows the employee to walk away in peace.”
