Employment Claims Tribunal win followed by High Court claim
The recent case of Goh Hui En Rebecca v. IG Asia Pte Ltd, SGHCR 20, demonstrates that employees are permitted to embark on sequential litigation against employers in certain circumstances, which could prove to be a successful litigation strategy for highly-remunerated executives whose compensation structure includes commission and performance incentives.
Ms. Goh was employed by IG Asia Pte Ltd (IGA) as a Premium Client Manager from November 2019 to September 2022. IGA terminated her employment with immediate effect for "serious misconduct" without paying salary in lieu of notice or outstanding sales credits. Goh pursued a two-phase litigation approach:
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First, she filed a claim with the Employment Claims Tribunal (ECT) seeking S$20,000 (which is the monetary limit for ECT disputes) for salary in lieu of notice, which was successful.
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Next, she subsequently commenced a separate claim in the High Court seeking payment of outstanding sales credits which Goh estimated to be S$300,000 and damages for defamation and negligence.
IGA applied to strike out Goh’s High Court claim on the grounds of abuse of process. IGA contended that under the doctrine of res judicata, the ECT decision barred further proceedings in civil courts and instead of sequential litigation, Goh should have brought all her claims to the High Court in the first place. IGA further argued that Goh's High Court claims were unsustainable because she could not rely on issue estoppel in her favour arising from the ECT decision because the ECT decision was a nullity.
Distinct remedies for separate employment actions
IGA’s striking out application was unsuccessful. The High Court held that Goh’s High Court claim was not abusive because:
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Her High Court claims sought distinct remedies not adjudicated by the ECT.
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She acted reasonably and in good faith, having consulted the TADM mediator about pursuing separate claims.
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The ECT lacked jurisdiction over her tortious and higher-value contractual claims.
Although the Employment Claims Act 2016 - which sets out the statutory framework for ECT claims) provides that if a claimant chooses to abandon part of its claim to fit within the monetary limits of the ECT, the claimant is statutorily barred from recovering the abandoned portion in any other forum - the High Court held that this provision did not operate to automatically bar a claimant from bringing different employment-related claims in another forum, even if those claims arise from the same factual matrix or even the same underlying event. The court noted that it was not uncommon for a range of distinct claims to arise from the termination of an employee’s relationship with her employer. In this case, Goh only abandoned her claim for salary in lieu of notice in excess of $20,000; she did not abandon her claims in respect of her outstanding sales credits or her claims for damages arising from defamation and negligence (the latter claims are in any event not within the ECT’s jurisdiction).
Notably, the court also held that an employee who has such a variety of claims against her employer is under no obligation to elect between the ECT and the civil courts because both forums are designed for different claims.
The court also rejected IGA’s issue estoppel argument, noting that even if the ECT decision does not find such an estoppel, it would be open to Goh to try to prove in High Court her claim that her employment was terminated without cause with reference to the relevant facts and the concessions by IGA.
ECT decisions could boost other employment claims
Employers should be aware of the possibility of sequential litigation where an aggrieved employee may first secure an award by the ECT and then proceed to sue for additional claims that are outside the jurisdiction of the ECT.
The ECT decision may create an issue estoppel in favour of the employee (e.g. where the ECT makes a factual finding that the employer had wrongfully dismissed the employee) and the employee may rely on the issue estoppel to ground other contractual claims against the employer in the High Court (e.g. claims for employee stock options or incentive payments conditioned on the employee being a “good leaver”).
Given the relatively modest maximum claim thresholds, ECT claims fall into the category of “low risk” claims for many organisations. However, given the operation of issue estoppel, organisations faced with ECT claims should invest time and resources in defending these allegations as employees may rely on an ECT win to commence or bolster further claims in the civil courts.
Seow Hui Goh is a Partner and Head of the employment and Disputes practices and Bird & Bird in Singapore. Marcus Teo is a Senior Managing Associate in the International Employment Group at Bird & Bird in Singapore.
