Arokiasamy Joseph Clement Louis v Singapore Airlines Ltd

Woo Bih Li J:

[1] The appellant Joseph Clement Louis Arokiasamy (“JC”) was an employee of the respondent Singapore Airlines Limited (“SIA”). He was an employee of SIA until SIA purported to terminate his employment by a letter of termination dated 5 March 1997. JC then commenced DC Suit No 4929 of 1997 against SIA for wrongful termination in November 1997. His action was eventually heard in the District Court between March and May 2003 and his claims dismissed. He then appealed to the High Court and his appeal was heard by me after which I reserved judgment.

[2] I reiterate the background facts which have been helpfully set out by the trial judge.

[3] Between 1989 and 1995, JC was seconded to the Singapore Airlines Staff Union (“SIASU”). During that time, he held various positions in SIASU, including that of Assistant General Secretary. Sometime in 1996, the Corrupt Practices Investigation Bureau (“CPIB”) commenced investigations regarding complaints against him. He voluntarily resigned from his posts in SIASU but retained his ordinary membership. On 18 February 1997, JC was charged with certain offences at the Subordinate Courts. As he was unable to raise the bail amount of $20,000, he was remanded in Queenstown Remand Prison (“QRP”) pending his trial. While in remand, he received a letter from SIA dated 5 March 1997, the relevant portion of which reads:

[4] JC was subsequently acquitted of the charges brought against him after his trial in June 1997. He then filed the present action.

[5] In May 1998, JC asked SIASU to file an application on his behalf to the Industrial Arbitration Court (“IAC”) under the Industrial Relations Act (Cap 136, 1985 Rev Ed) to adjudicate the dispute between him and SIA. This request was turned down. He applied to the High Court for a declaration and an injunction to compel SIASU to act pursuant to his request and refer the matter to the IAC. The High Court dismissed his suit: see Arokiasamy Joseph v Singapore Airlines Staff Union [2000] 1 SLR 473. He appealed therefrom and his appeal was dismissed by the Court of Appeal: see [2000] 2 SLR 303.

[6] Matters were held in abeyance for this suit until September 2000, when JC filed an amended statement of claim. Summary judgment was obtained against JC on part of SIA’s counterclaim in July 2001. Upon appeal, the High Court varied the judgment sum in November 2001. No further action was taken by SIA on the counterclaim. In November 2001, SIA filed an application under O 14 r 12 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) for the striking out of various parts of JC’s amended statement of claim: in particular, his claim for reinstatement of his employment; his claim that his dismissal was in breach of the principles of natural justice; and his claim for wages up to the date of adjudication. On appeal before the High Court, JC’s prayer for reinstatement of his employment remained struck out. MPH Rubin J held that the two remaining questions of natural justice and the ability of JC to claim as damages his wages up to the date of trial be heard at trial. Subsequently JC obtained leave to subpoena 19 witnesses to give evidence orally at trial, subject to directions given relating to the questions that the witnesses be asked. In January 2003, SIA appealed against the directions obtained and filed another application on a question of law to determine whether JC’s claim for unfair dismissal was justiciable in the courts. The appeal was dismissed by a district judge in chambers who also made no order on the application in respect of the question of law as that judge was of the view that that specific issue was best dealt with in the impending trial.

[7] Eventually, after receiving evidence and submissions, the trial judge dismissed JC’s claims.

[8] The trial judge was of the view that JC’s remaining claims were, broadly, on three heads:

(a) The first was the wrongful termination of his contract of employment on 5 March 1997: this involved consideration of the Employment Act (Cap 91, 1996 Rev Ed); and the express and implied terms of his contract, which in turn involved discussion of the prevailing collective agreement between SIA and SIASU, SIA’s Personnel Procedures Manual (“PPM”), and SIA’s employment norms and practices;

(b) The second was a claim for breach of natural justice; and

(c) The third was a claim for unfair dismissal.

[10] For ease of analysis, the trial judge summarised the issues as follows:

(a) whether SIA was entitled to terminate JC’s employment under s 13 of the Employment Act;

(b) whether any provision under the collective agreement or PPM applied in the present case;

(c) whether natural justice requirements applied and whether there was a breach of natural justice; and

(d) whether there was any unfair treatment that could ground a cause of action against SIA.

[11] JC had been represented by solicitors at various times but at the trial he appeared in person. In the appeal before me, he was represented by Mr B Ganesh and Mr A Jeyapalan. His counsel adopted the same issues as summarised by the trial judge, but added another issue which I will come to later.

[12] Section 13(2) of the Employment Act states:

[13] The trial judge was of the view that:

[14] Although I agree with the illustration given by the trial judge, I prefer not to describe the conditions in (a) and (b) as being disjunctive. That may give the impression that so long as one of the conditions is satisfied, s 13(2) comes into play. For example, it may give the impression that if the employee does not inform his employer of the reasonable excuse, s 13(2) applies even though the employee has attempted to inform. I am of the view that s 13(2) comes into play if the following conditions apply:

(a) the employee has been continuously absent from work for more than two days; and

(b) the employee does not have the prior leave of the employer and has no reasonable excuse for the absence; or

(c) the employee does not inform and does not attempt to inform the employer of the reasonable excuse.

[15] Mr Lawrence Teh, counsel for SIA, submitted that it was not sufficient for JC to have a reasonable excuse. The excuse had to be communicated to SIA by JC or someone on JC’s behalf.

[16] Mr Ganesh disagreed. He further submitted that even if the conditions I have mentioned apply, s 13(2) does not mean that the contract of employment is terminated automatically. Neither does it allow SIA to terminate the employment of JC without more. I add that Mr Teh did not argue that s 13(2) provided for automatic termination but rather that it allowed SIA to exercise its right of termination should SIA elect to do so.

[17] I will first deal with the question whether s 13(2) allows an employer to terminate the contract of employment without more, assuming that the conditions I have set out apply. As Mr Ganesh had relied on a number of cases, I will analyse the cases in chronological order including a case cited by Mr Teh.

[18] Mr Teh cited Lian Yit Engineering Works Sdn Bhd v Loh Ah Fon [1974] 2 MLJ 41. There, Abdul Hamid J referred to ss 13(2) and 15(2) of the Malaysian Employment Ordinance 1955. Section 13(2) permitted either party to a contract of service to terminate the contract in the event of wilful breach by the other party of a condition of the contract. The Singapore equivalent is s 11(2) of the Employment Act. Section 15(2) of the Employment Ordinance is the equivalent of the Singapore s 13(2). Abdul Hamid J said, at 43:

[19] Therefore, it was implicit in the learned judge’s statement that if the conditions in s 15(2) were satisfied this would be tantamount to a wilful breach entitling the employer to terminate the employment without more. There was no requirement for the employer to conduct any inquiry or an investigation. I will say something more later as to whether an employer can terminate without notice under the Singapore equivalent ie s 13(2).

[20] In Poh Loy Earthworks Sdn Bhd v Mohd Nasurdin Taib [1997] 3 ILR 608, the case was heard by the Industrial Court in Kuala Lumpur. It was dealing with s 15(2) of the Malaysian Employment Act 1955 which was in substance similar to the Singapore s 13(2). The Industrial Court said, at 613:

[21] The Industrial Court then cited passages from Edgar Joseph Jr J’s judgment regarding due inquiry under s 14 of the Malaysian Employment Act 1955. However, in Said Dharmalingam, the termination was not pursuant to the equivalent of the Singapore s 13(2) ie continuous absence of more than two days. With respect, I am of the view that the Industrial Court had erred in relying on the case of Said Dharmalingam.

[23] I am of the view that s 13(2) is separate and independent from ss 14(1) and 14(2). Section 13(2) is a deeming provision. If an employee is continuously absent for more than two days without prior leave and without reasonable excuse, or if he did not inform and did not attempt to inform his employer of the reasonable excuse, then he is deemed to have broken his contract. There is no question of an inquiry because it is not for the employer to investigate why the employee is absent. The legislation has put the burden on the employee to inform, or at least attempt to inform, the employer about his reasonable excuse. True, a difficult question may arise if the employee had attempted but failed to inform the employer but that is a separate question. It does not throw the burden on the employer to have a due inquiry in a s 13(2) situation. Consequently, s 14(1) does not apply to a situation under s 13(2).

[24] I am reinforced in my view that no due inquiry is contemplated by the discussions before a Select Committee when it was considering the earlier Shop and Office Employees Bill. The relevant provision then was cl 14. The Minutes of Evidence of 6 April 1956 state:

[25] As for Abdul Hamid J’s view in Lian Yit Engineering that no notice need be given, I am of the view that a termination notice or letter must be given, otherwise the employee would not know for certain whether his contract has been terminated. Besides, it is not every employer who will terminate the employee’s service once two days of continuous absence has lapsed. As in the present case before me, SIA had elected to wait a while longer before terminating.

[26] The next case to be considered is Hongkong Bank Malaysia Bhd v Joseph Stephen [1998] 3 ILR 1001. That was a case before the Industrial Court, Kuching. There, the Industrial Court said, at 1007:

[27] With respect, I do not agree that if the conditions under the Singapore s 13(2) (which is the equivalent of the Malaysian s 15(2)) are met, the employer will still have to consider whether they are tantamount to a repudiation. That will make the deeming provision meaningless. In my view, once the conditions are met, there is a deemed repudiation and it is for the employer to elect whether to act on it or not. It may be that, as submitted by Mr Teh, the Industrial Court in the Joseph Stephen case was influenced by a contractual term in a collective agreement which provided that an inquiry was to be conducted before any disciplinary action was taken against an employee although, even then, the contractual term might not have applied to a situation under the Malaysian s 15(2).

[28] The next case is Dharmaraja @ Abd Malik a/l Abd Wahab v Asian Ceramic Sdn Bhd [2000] 2 MLJ 282, a decision of K C Vohrah J in the High Court of Kuala Lumpur. There, Vohrah J relied on a decision of Harun Hashim J in Gim Aik Estate Sdn Bhd Malacca v National Union of Plantation Workers [Jan–June 1982] MLLR 117 where Harun Hashim J said:

[29] Vohrah J then concluded at 287:

[30] I am of the view that a continuous absence of more than two days in the circumstances under the Singapore s 13(2) amounts to more than just a deemed breach of contract. It is also a deemed repudiation. Indeed, when an employee does not turn up for work and has no prior leave or reasonable excuse, he is already in breach of contract. A deeming provision is not necessary to establish a breach but it is necessary to deem the breach a repudiation. It is a different matter if one were to argue that the circumstances under s 13(2) have not been established. For example, if an employee who is absent for more than two consecutive days has given his employer notice of the reason for his absence prior to the expiry of the two days but the dispute is whether his reason constituted a reasonable excuse, then that is a different issue altogether. It may be that that was what Harun Hashim J and Vohrah J meant when they said that the circumstances of the absence must be considered. Accordingly, absence without prior leave does not in itself bring s 13(2) into play. There must also be the absence of reasonable excuse. However, if the employee does not even inform or attempt to inform the employer of the reasonable excuse, then s 13(2) comes into play. It may be that one may ask how an employer is to establish that an employee has failed to attempt to inform him and then suggest that therefore a due inquiry by the employer is required to establish whether the attempt to inform has been made. However, as I have said, the onus is not on an employer to seek out an employee for his excuse or to find out whether he has attempted to inform the employer of his excuse. The onus is on the employee, if he has a reasonable excuse, to inform and in so doing, to make the attempt to inform. For practical purposes, once the employer does not hear from the employee after more than two days of absence, the employer may terminate. If the employee can establish that he did attempt to inform but for some reason beyond his control the attempt failed, then the termination will not be a lawful one. While I accept that such a possibility will create some uncertainty for an employer, it seems to me that it will not arise often. In any event, an employer who does not wish to face this uncertainty can still conduct his own investigation before termination or choose not to terminate under s 13(2) but under the usual contractual provision which allows termination by giving notice of a certain duration or pay in lieu of that notice.

[31] In CK Lee & Associates v Goh Shaw Yuh [2002] 3 ILR 645, the Industrial Court in Kuala Lumpur said, in respect of the Malaysian s 15(2), at 651 and 652:

[32] I have considered the cases relied upon by the Industrial Court in the case of CK Lee & Associates. They do not deal with the equivalent of the Singapore s 13(2). Accordingly they are not on point.

[33] Furthermore, although Lian Yit Engineering was the first of the cases discussed above, it seems that it was not cited in the subsequent Malaysian cases.

[34] Having considered the Malaysian cases discussed above, I remain of the view that if an employee is continuously absent for more than two days without prior leave but has a reasonable excuse, the employer is nevertheless entitled to terminate his contract of service if the employee did not inform or attempt to inform the employer of the excuse. There is no requirement for the employer to have a due inquiry or to investigate the reason for the absence.

[35] On the facts before me, JC was apparently also absent from work prior to 21 February 1997. However, SIA did not rely on any period of absence prior to 21 February 1997. Be that as it may, I should mention that on 17 February 1997, JC went for an appointment with CPIB. He rang SIA to use his annual leave from 17 to 19 February 1997. According to SIA, JC had applied for leave from 17 or 18 to 20 February 1997. In any event, it appeared that a union official, one Chan Siew Mun had also approached SIA’s Eddie Ong, the immediate superior of JC, to ask for leave for JC until 20 February 1997.

[36] As I have mentioned, JC was charged in court on 18 February 1997. On 19 February 1997, there was a Straits Times report on his indictment. The last paragraph of the report states:

Unfortunately, the report was not accurate because JC was in fact not able to raise bail and was remanded.

[37] It seems to me that JC had a reasonable excuse for being absent from work but whether he had informed or attempted to inform SIA of his absence from 21 February 1997 was the crux of the matter, given my view that an employer is not obliged to conduct a due inquiry or to investigate the reason for absence before applying s 13(2).

[38] Mr Ganesh contended that so long as SIA knew that JC was incarcerated, s 13(2) did not come into play. How then would SIA have known? As I have said the newspaper report had inaccurately stated that JC was released on bail and there was nothing in the last application for leave by Chan Siew Mun indicating that JC would require further leave beyond 20 February 1997.

[39] Mr Ganesh relied on a conversation that another union official, one Retna Mohan, had with Chew Kai Seng who was Vice-President of Industrial Relations, Human Resource Division of SIA. The trial judge’s summary of the evidence of Mr Mohan and Mr Chew and the developments leading to the sending of the termination letter is as follows:

[40] The above summary by the trial judge was not challenged. It appeared that the main, if not the only, discrepancy between Mr Mohan’s and Mr Chew’s evidence was that Mr Mohan had said that he had told Mr Chew that JC was in remand but Mr Chew did not recollect having been told this. In any event, it was not disputed by Mr Mohan that Mr Chew had said that SIA would wait to see if JC got in touch with them as the newspaper report might not be accurate.

[41] Therefore, even assuming that Mr Mohan had told Mr Chew that JC was in remand, Mr Chew had not indicated that that was good enough notification to SIA. On the contrary, Mr Chew had said SIA would see if JC got in touch with SIA.

[42] Also, Mr Mohan was not speaking or attempting to speak on JC’s behalf nor did he seek to justify or excuse JC’s absence for him. In addition, it was not suggested that JC was then aware of the conversation between Mr Mohan and Mr Chew and was under the impression that that conversation would suffice for the purpose of keeping SIA informed.

[43] In these circumstances, I am of the view that even if SIA was aware through Mr Mohan of JC’s remand this was not sufficient for JC under s 13(2).

[44] There was also evidence for JC by another witness, one Mohd Hussain Kassim, that he believed SIA was aware of JC’s whereabouts. However as his belief stemmed from what Mr Mohan had told him of his conversation with Mr Chew, I did not place any weight on Mr Kassim’s evidence.

[45] I agree with the trial judge that s 13(2) imposed an obligation on JC, as an employee, to inform SIA of the reason for his absence. I reiterate that Mr Teh accepted that the obligation would have been discharged if the information was given by someone else on behalf of JC. I accept that mere information is not sufficient, otherwise, for example, a newspaper report would be adequate. Yet such information could be inaccurate, as was in the case before me.

[46] The view I have taken does not impose an onerous burden on employees generally. If an employee cannot turn up for work, it is only logical and natural for him to inform his employer of this, as well as the reason, as soon as possible. Section 3(2) effectively allows him two days from the time he should be at work to do so. I am mindful that there may be cases in which the employee cannot carry out this obligation, for example, if the employee is in a coma or has been kidnapped and has no one to inform the employer accordingly. In such cases, the employee would not even be able to attempt to inform his employer. However, while that may or may not call for different considerations, those are not the facts before me. The evidence, as noted by the trial judge in her grounds, showed that JC could have and did contact others. JC’s relatives were present in court on the day he was charged ie 18 February 1997. On the second day of his remand, he did request to make a call to his aunt and subsequently made the call. On 22 February 1997, an aunt and uncle had visited him. Indeed, Mr Ganesh did not pursue the argument made below by JC that JC was unable to attempt to inform SIA of his whereabouts.

[47] While I cannot help feeling some sympathy for JC, I am of the view that he has to bear responsibility for the situation which arose. As I have mentioned, prior to 21 February 1997, one Chan Siew Mun had applied for leave on his behalf up to 20 February 1997. Yet JC did not follow up on this when he was remanded from 18 February 1997 onwards. Furthermore, it was not as though SIA acted immediately after the expiry of two days. They waited for a while more. When no news was received from JC thereafter, they acted by sending the termination letter dated 5 March 1997.

[48] The trial judge concluded that neither the collective agreement nor the PPM was applicable. She said:

[49] On this issue, Mr Ganesh submitted in the Appellant’s Skeletal Submissions that the collective agreement was part of JC’s employment. This however did not address the point that the collective agreement did not specify a need to hold a disciplinary inquiry in cases of absence without leave.

[50] As for the PPM, Mr Ganesh could only submit that the trial judge was wrong in concluding that s 5-4 applied independently of s 8-4 without elaborating why the trial judge was wrong. It is clear to me that if a disciplinary inquiry under s 8-4 is necessary even in cases of absence without leave, then s 5-4 is otiose. In my view s 5-4 is independent and separate from s 8-4.

[51] I add that the trial judge also found that the evidence demonstrated that no disciplinary inquiry was convened for cases of absence without leave of more than 48 hours. This finding was not challenged.

[52] On the issue of natural justice, JC was contending that he should have been heard before the termination letter was sent by SIA. On this issue, the trial judge said:

[53] Mr Ganesh did not dispute the trial judge’s analysis of the law. Instead, he submitted that the PPM was the natural consequence of putting into effect the collective agreement and that the PPM did invoke principles of natural justice when it involved principles of inquiry (see para 17 of Appellant’s Skeletal Submissions). However, this submission also overlooked the fact that the PPM had s 5-4 for cases of absence without leave which was independent and separate from s 8-4 which dealt with an inquiry.

[54] This issue was not rigorously pursued by Mr Ganesh.

[55] The main thrust of Mr Ganesh’s argument on this issue appeared to be that the termination letter was sent to the North Bridge Road address of JC’s uncle, where JC once stayed instead of JC’s Pasir Ris address where he was living at the time of the termination. This Pasir Ris address was reflected in the documents pertaining to his renovation loan. However, evidence from SIA’s Mr Woon was to the effect that JC had not updated his address as formally recorded by SIA.

[56] In my view, the burden is on an employee to update his records with his employer and not leave it to his employer to initiate a change in the records without notice from the employee to do so. After all, an employee may be staying at a different address but may want correspondence to be sent to his original address still.

[57] In any event, there was no evidence that the sending of the termination letter to the North Bridge Road address was done deliberately to deprive JC of some avenue of recourse.

[58] I have already dealt in [22] above with the other point which Mr Ganesh raised ie that the result of sending the termination letter to the North Bridge Road address meant that JC eventually received the notice late and was denied his alleged right to appeal under s 14. Accordingly, I need not deal with it again.

[59] Given that SIA did not act immediately after two days of absence had lapsed and in the absence of any other evidence, I am of the view that the allegation of unfair treatment has not been made out.

[60] As I have mentioned, the termination letter was dated 5 March 1997. The relevant portion is set out in [3] above. As can be seen, although SIA purported to act on 5 March 1997, it sought to terminate JC’s employment with effect from 21 February 1997.

[61] In accordance with the views I have expressed, JC’s absence in the circumstances allowed SIA to terminate his employment if SIA so wished. However, as I have said, SIA decided not to act immediately but to wait. Bearing in mind that there is no automatic termination even if the conditions under s 13(2) are satisfied, it is for SIA to decide when to terminate. It apparently decided to do so on 5 March 1997 but Mr Ganesh’s point was whether SIA could do so retrospectively with effect from 21 February 1997.

[62] Indeed, since SIA was acting on the basis that JC was absent without leave from 21 February 1997 and SIA was also relying on s 13(2), the two days of absence without leave would expire on 23 February 1997 only. If Saturday and Sunday were taken into account, it would expire later. So, Mr Ganesh argued that SIA could not have validly terminated JC’s employment under s 13(2) with effect from 21 February 1997. There is another argument on this point. Since SIA had waited until 5 March 1997, it would seem that it could only terminate with effect from 5 March 1997. Whether JC should be paid for the days he was absent before 5 March 1997 is another matter.

[63] Mr Ganesh argued that JC’s pleadings below had raised the issue about the validity of the termination letter as such but a perusal of the same disclosed they had not. Neither was any argument made before the trial judge on this issue.

[64] This issue was also not raised in JC’s Case dated 30 July 2003 for the appeal. It was raised for the first time in a subsequent Appellant’s Submissions, which was undated.

[65] Mr Ganesh then argued that JC was not represented by solicitors below. However, while it was true that JC had represented himself at the trial, his pleadings suggest that they had been drafted by solicitors as solicitors’ names appear thereon. Furthermore, JC was represented at all material times by Mr Ganesh in the appeal before me. Mr Ganesh’s name appears in JC’s Case but, as I have mentioned, this issue was still not raised even then. Consequently, Mr Teh said that he was caught by surprise by this issue although he did attempt to present arguments thereon.

[66] Although it may be argued that no further evidence is required to determine the validity of the termination letter and that the point is one of law only, I am mindful of the view expressed by Lord Birkenhead LC in North Staffordshire Railway Company v Edge [1920] AC 254 where an attempt was made to introduce an argument on the scope of a legislative provision, which argument had not been put forward in the original pleadings or before the trial judge. The attempt to introduce the argument was made before the Court of Appeal but the attempt was rejected. Lord Birkenhead was of the view that the Court of Appeal was right to reject the attempt. He said, at 263 to 264:

[67] I add that part of the passage cited above was also cited with approval by our Court of Appeal in Feoso (Singapore) Pte Ltd v Faith Maritime Co Ltd [2003] 3 SLR 556 at 565, although I accept that in that case, our Court of Appeal was of the view that more evidence might well have been required too.

[68] JC’s appeal before me may or may not be the final avenue of appeal he may avail himself of. Even if it is not the final avenue of appeal available, the observations of Lord Birkenhead are still applicable. I reiterate that there, Lord Birkenhead was of the view that the Court of Appeal in Edge was correct in rejecting a fresh attempt to advance a point not taken before the trial judge.

[69] So, here, I do not have the benefit of the views of the trial judge. Besides, if the point had been taken much earlier, SIA might have issued another termination letter as a matter of caution.

[70] Also, the extent of damages which JC would be entitled to may well be affected if SIA had acted wrongly only in respect of the validity of its termination letter. While Mr Ganesh was no longer seeking damages before me, but only a declaration that the termination was wrongful, such a declaration, if made without qualification, may give rise to more damages being awarded from further litigation, than JC may otherwise be entitled to.

[71] In the circumstances, I am of the view that I should and I do reject Mr Ganesh’s argument on the validity of the termination letter, not because of a lack of merit on the substantive argument, but because it was not raised or argued below.

[72] Mr Ganesh also had a secondary argument ie that the termination letter should have referred specifically to s 13(2) and was invalid for not having done so. As this was also not pleaded or argued below, I reject the argument.