DFI Engineering Pte Ltd v Mo Mei Jen [2018] SGHC 113

This was the plaintiff’s application under s 17 of the Employment Claims Act 2016 (No 21 of 2016) (“Employment Claims Act 2016”) to transfer the defendant’s claim from the Employment Claims Tribunal (“ECT”) in ECT/487/2017 (“ECT487”) to the High Court, and to be tried at the same time as or immediately after High Court suit no 737 of 2017 (“S737”) by the same trial Judge. The defendant objected to the application, and after hearing the arguments of both parties I dismissed the plaintiff’s application. I now give the reasons for my decision.

Background facts

The parties

The plaintiff is a local company involved in the business of wholesale and manufacture of industrial machinery and other related equipment.

The defendant, Ms Mo Mei Jen (“Ms Mo”), was employed by the plaintiff from 4 June 2012 to 3 August 2017 as a senior sales administrator, and during such employment she reported to and took instructions from one Lim Boon Siang (“Daniel Lim”), who was the general manager of the plaintiff company.

High Court Suit No 737 of 2017

The plaintiff commenced S737 on 11 August 2017 against 12 parties, including Daniel Lim and the defendant. The plaintiff claimed, inter alia, that Daniel Lim had fraudulently and/or wrongfully breached his fiduciary and contractual duties to the plaintiff. It was alleged that Daniel Lim had engaged in a conspiracy with the other defendants in S737 to defraud the plaintiff and fraudulently divert the contracts and business of the plaintiff to competing businesses. These competing businesses were incorporated by Daniel Lim, and bore names similar to the plaintiff, such as DFI Technologies Pte Ltd (“DFIT”).

As against the defendant Ms Mo, who was the fourth defendant in S737, it was alleged that she had knowingly and dishonestly assisted in the conspiracy of the other defendants and Daniel Lim’s breach of fiduciary duties.

The ECT claim in ECT/487/2017

The defendant tendered her resignation on 2 July 2017 by way of email to Daniel Lim (who was the plaintiff’s general manager at the time) giving one month’s notice. She left the plaintiff company on 3 August 2017. On 15 August 2017, four days after the plaintiff filed the writ in S737, the defendant submitted a mediation request to the Commissioner for Labour pursuant to Part 2 of the Employment Claims Act to claim for her salary for the final month of her employment with the plaintiff as well as reimbursement for expenses incurred. The claims submitted to mediation with the Tripartite Alliance for Dispute Management (“TADM”) were as follows:

(a) Reimbursement for expenses incurred while carrying out official duties.

(b) Reimbursement for medical expenses for June and July 2017.

(c) Payment of salary for July 2017.

The parties were unable to resolve the dispute via mediation and the defendant alleged that the plaintiff did not attend further mediation sessions after the first session. There being no settlement reached, the defendant proceeded to file her claim with the ECT on 13 October 2017.

Four days later, on 17 October 2017, the plaintiff filed an amended statement of claim in S737 to include inter alia an allegation that the defendant was not entitled to payment of her salary for July 2017, the subject matter of her claim in the ECT. The amended paragraph states the following [(ii) at p 16]:

At the hearing of this application, the reimbursement claim for item (a) in [6] above had already been paid by the plaintiff to the defendant. Only the claims in item (b) and (c) remained. The defendant claimed a sum of $3,500 as salary owed under item (c), and a sum of $167.57 as medical expenses under item (b). The total amount claimed by the defendant amounted to $3,667.57.

The parties’ cases

The defendant’s case

The defendant’s case was that she had performed work during the month of July 2017, and should be entitled to her salary first without set-off until the plaintiff has succeeded in its claim in S737. The defendant, who acted in person, objected to the transfer of proceedings, apparently on the ground that the set-off claim in S737 as set out at [8] above was added as an afterthought and subsequent to the filing of her claim in ECT487.

The plaintiff’s case

The plaintiff’s two arguments, which are in many aspects overlapping, can be summarised as follows.

Firstly, the ECT was established to provide for a forum to deal with simple matters of employment claims and not complex cases such as the present. The complexities of the claim in ECT487 arise because the claim is in essence inseparable from the allegations in S737. The plaintiff alleged that the defendant was actually working for DFIT rather than the plaintiff during the month of July 2017. She was therefore not entitled to her salary and expenses incurred during that month due to a failure of consideration and/or a right of set-off. As such, this was not a straightforward case of unpaid wages that can be dealt with easily by the ECT, since a determination of whether the defendant is entitled to her salary arises out of the same complex factual matrix giving rise to the allegations in S737.

Secondly, and relying on established principles relating to the consolidation of cases under O 4 r 1 of the Rules of Court (Cap 332, R 5, 2014 Rev Ed)(“the ROC”), the cases in S737 and ECT487 should be tried together or one after the other by the same Judge as they give rise to common questions of fact and law. Specifically, whether or not the defendant had been performing work for DFIT instead of the plaintiff and whether the defendant had used the plaintiff’s resources for the benefit of DFIT were common issues for determination in both cases. Transferring the claim in ECT487 to the High Court would prevent a duplication of resources in terms of adducing the same evidence and producing the same witnesses in two different forums, and would also prevent an outcome where the adjudication in the two forums gave rise to inconsistent results.

The plaintiff also disagreed with the defendant’s assertion that the set-off claim in S737 was added belatedly, as the original statement of claim contained at para 15(y) the allegation that “at all material times, Daniel Lim and his co-conspirators used the employees and resources of the Plaintiff to manage and operate the business, operations and affairs of DFIT and DFIT Malaysia”, which according to the plaintiff included an allegation that the defendant was working for DFIT instead of the plaintiff at the material time, albeit in rather unspecific terms. In the alternative, the plaintiff also argued that whether or not the set-off claim was added before or after the filing of the claim in ECT487 was irrelevant, as the more important issue was whether there were common questions of fact and law between the two cases at this present point of time.

My decision

The present application was made pursuant to s 17 of the Employment Claims Act 2016, which stipulates as follows:

The question central to the determination of this present application would hence be what constitutes “sufficient reason” for the transfer of the proceedings from ECT487 to this court.

It is unsurprising that there is a dearth of case law pertaining to s 17 or any equivalent provision, since the Employment Claims Act 2016 only came into effect in April 2017. The plaintiff in its written submissions had made reference to other provisions relating to the transfer of proceedings from a tribunal to a court, such as s 20 of the Community Disputes Resolution Act 2015 (No 7 of 2015) and s 10 of the Small Claims Tribunals Act (Cap 308, 1998 Rev Ed), but since it is clear that these provisions pertain to the transfer of claims which are beyond the jurisdiction of the relevant tribunals, I did not find these references to be helpful. It is not disputed that the claim in ECT487 is not outside of the jurisdiction of the ECT.

In this regard, it is useful to consider the purpose for which the ECT was set up. At the Second Reading of the Employment Claims Bill (Singapore Parliamentary Debates, Official Report (16 August 2016) vol 94), Minister for Manpower Mr Lim Swee Say said the following in response to questions on legal representation in the ECT: