Prashant Mudgal v SAP Asia Pte Ltd [2026] SGHC 15

The claimant was a former employee of the defendant. On 21 November 2019, after a succession of events fraught with conflict and bitter workplace politics, his employment was terminated. The claimant now alleges that the defendant engaged in a conspiracy to terminate his employment and breached various implied terms in his employment agreement. Having deliberated on the evidence and the parties’ arguments, I allow the claim for breach of the implied term of mutual trust and confidence. However, I award only nominal damages.

Previously described as a “Trojan horse” because of its supposed potential to retroactively import a wide range of obligations into employment contracts, the implied term of mutual trust and confidence has spawned a corpus of authorities which have, at times, signalled a measure of ambivalence about its existence. That is far from saying, however, that the writing is on the wall. As such, much ink in this judgment will be expended on dealing with the question of whether the implied term of mutual trust and confidence exists in employment contracts under Singapore law. I ultimately answer that question in the affirmative and find that the defendant has breached this implied term. I now proceed to explain how I have arrived at this determination.

Facts

The parties and dramatis personae

The claimant is Mr Prashant Mudgal.

The defendant is SAP Asia Pte Ltd, a Singapore-incorporated company which is a subsidiary of SAP SE. SAP SE is a German multinational software company that develops enterprise applications to manage business operations.

Prior to his employment with the defendant, the claimant was employed by another subsidiary of SAP SE since October 2012. He was then employed by the defendant as a “Solution Sales Engagement Manager Expert” on 11 August 2015 and the final day of his employment was on 31 December 2019. He last held the position of “Head of Services Sales” for the Ariba line of business in the Asia Pacific and Japan (“APJ”) region. The Ariba line of business concerns a cloud-based management software that helps purchasers and suppliers manage their procurement processes.

The cast of characters within the defendant or the larger SAP SE Group who are central to this case include the following individuals – Ms Otsakchon Raman (“Ms Raman”), Ms Charmaine Seabury (“Ms Seabury”), Mr Baber Farooq (“Mr Farooq”), Ms Adele Teo-Gomez (“Ms Teo-Gomez”) and Ms Valerie Blatt (“Ms Blatt”).

Ms Raman was, at the material time, the “Head of Services Delivery” for the Ariba line of business for the APJ and Greater China (“GCN”) regions.

When a customer purchases an Ariba software licence, the defendant is able to provide the customer with certain services in order to help the customer implement and integrate the software into its workflow. The services sales team, which the claimant headed, is responsible for selling those services to customers who have purchased the defendant’s Ariba software. After a customer buys those services, the services delivery team, which was headed by Ms Raman, is responsible for providing those services to the customer. As such, Ms Raman and the claimant had to work closely with each other as the heads of the services delivery and services sales teams respectively.

It will become apparent below that the strained relationship between the claimant and Ms Raman, as well as some members of their respective teams, was the catalyst for the events that led to the conduct of the defendant which the claimant complains of and the termination of the claimant’s employment.

As for the other individuals in the ensemble cast, it bears noting that, at the time of the events leading up to the termination of the claimant’s employment, only Ms Seabury and Ms Blatt were in the direct reporting line of the claimant and/or Ms Raman. While Mr Farooq and Ms Teo-Gomez were not, they were nonetheless involved in the material events which transpired.

Mr Farooq was the “General Manager of the Customer Value Organisation” for the Ariba line of business in the APJ and GCN regions. In that role, he was responsible for customer satisfaction, adoption and contract renewals and hence worked closely with the services sales and services delivery teams. The claimant reported to Mr Farooq from March 2017 to January 2018, before there was a re-organisation in SAP SE’s business.

After the re-organisation, the claimant reported to Ms Seabury. Ms Seabury was the “Global Vice President of Services Sales” for the Ariba line of business. She was the person who informed the claimant that his employment would be terminated.

Ms Seabury and Ms Raman, in turn, reported to Ms Blatt. Ms Blatt was the “Global Vice President of Services” for the Ariba line of business. In that capacity, she had oversight of both the services sales and services delivery teams headed by the claimant and Ms Raman respectively. It was also in that role that she approved the termination of the claimant’s employment with the defendant.

Ms Teo-Gomez was the “Human Resources Business Partner” in charge of the APJ region. In that capacity, she was aware of the events leading up to the termination of the claimant’s employment.

It is worth highlighting that, while Ms Raman, Ms Blatt, Mr Farooq and Ms Teo-Gomez all made an appearance in this trial, Ms Seabury was absent. Ms Seabury was originally listed by the defendant as an intended witness, but was later substituted by Ms Blatt (who was not originally in the defendant’s intended list of witnesses).

Background to the dispute

The events leading up to the termination of the claimant’s employment centre around two incidents, the “Wipro Incident” and the “Sesa Goa Incident”.

The Wipro Incident

In June 2018, a decision was made to transfer one Mr Girish Kumar Saripalli (“Mr Saripalli”) from the services delivery team headed by Ms Raman to the services sales team headed by the claimant. This was because a member of the services sales team, Mr Sudeep Gupta (“Mr Gupta”), was “at capacity workwise”. However, although Mr Saripalli was “formally transferred” to the services sales team and placed under the headcount which the claimant was responsible for in July 2018, his onboarding was deferred because the services delivery team was unable to source for a suitable replacement for him. In fact, as it so happened, Mr Saripalli never ended up working in the services sales team.

At the time that Mr Saripalli was “formally transferred” to the services sales team, he was working on a project for Wipro Limited (“Wipro”) in India. Before a suitable replacement for him was found, Mr Saripalli informed Wipro that he would be leaving the project. It is a point of dispute as to whether Wipro was upset because Mr Saripalli was leaving or because there was no suitable replacement for him, although I have doubts about whether such a distinction can be meaningfully drawn. The bottom line is that Wipro did not take kindly to the news that Mr Saripalli was leaving.

On the back of this, Ms Raman sent an e-mail on 11 July 2018 to certain key personnel involved in the Indian market, including the claimant, Mr Gupta, and Mr Nanda Kalyan (“Mr Kalyan”), the head of the services delivery team in India, in which she stated:

This sparked a series of e-mail exchanges between Ms Raman and Mr Gupta, in which Mr Gupta stated that the services sales team had “clearly called out the customer expectation a long time ago”. That exchange ended with Ms Raman telling Mr Gupta that they “need[ed] to move on from an ‘us’ and ‘you’ mindset” and that she was “done with this email trail and [would] not be responding further”. She also told Mr Gupta to “call should [he] need to discuss further”.

On 12 July 2018, a day after Ms Raman ended her e-mail exchange with Mr Gupta, the claimant responded to Ms Raman privately (without Mr Gupta and the rest of the personnel who were originally copied in the preceding e-mail chain), stating as follows:

When Ms Raman replied asking the claimant if he was able to talk to her, the claimant replied:

I will refer to the e-mails quoted in [21] and [22] above collectively as the “12 July 2018 E-mails”.

In a follow-up e-mail, Ms Raman denied that she had a personal vendetta against Mr Gupta and once again reached out to the claimant to “chat”. She then proceeded to forward the preceding e-mail chain to Ms Blatt, her direct superior (and the claimant’s superior as well), saying that she “may need some advice working with/managing [the claimant]”. Ms Blatt’s response was: “Yes. Wow. We need to do something here.”

According to Ms Blatt, after reviewing the e-mail exchange, she found the claimant’s response to be “unnecessarily aggressive and divisive”, as the claimant had “adopted an abrasive, finger-pointing approach” instead of focusing on resolving the issue of finding a suitable replacement for Mr Saripalli. She was of the view that such behaviour fell below what was expected of the claimant as a senior regional leader and accordingly asked Ms Seabury, the claimant’s direct superior, to coach the claimant to be more professional in his dealings with others.

It is not clear exactly what sort of “coaching” Ms Seabury provided to the claimant in the following months, as there is no documentary evidence of such coaching on the record. However, on 27 September 2018, the claimant forwarded the e-mail chain containing the 12 July 2018 E-mails to Ms Seabury in order to “provide context on the ‘incompetence’ of the Services Delivery team to address staffing and other issues which ‘were not yet resolved’” [emphasis in original omitted]. The claimant also said the following:

It would not be long, however, before tensions flared up between the claimant and members of the services delivery team once again.

The Sesa Goa Incident

In an incident concerning another customer in India, Sesa Goa Iron Ore (“Sesa Goa”), it was discovered that Mr Gupta had “unilaterally reduced” the delivery timeline for the scope of work for a project proposal from 11 months to eight months. Essentially, discussions between the services sales and services delivery teams for the Sesa Goa project were proceeding on the basis that the timeline for delivering the project would be 11 months. However, on 13 October 2018, Mr Gupta submitted a quote containing a reduced timeline of eight months to Ms Raman, without highlighting the change. Ms Raman, believing that there were no changes to the delivery timeline from the previously discussed 11-month timeline, approved the quote “in good faith” (ie, without opening the quote document containing the proposed delivery timeline) on 15 October 2018.

A second quote with “minor modifications”, but no changes to the eight-month delivery timeline in the first quote, was submitted by Mr Gupta on 28 October 2018. It was only after this second quote was submitted that the services delivery team became aware of the change in the delivery timeline from 11 months to eight months. As it was made clear to the services delivery team that a delivery timeline of eight months was “the ask of the customer [ie, Sesa Goa] before signing the contract”, and that a commitment to such a delivery timeline was already made known to Sesa Goa, Ms Raman “agreed to leave [the delivery timeline] as it [was]” and accordingly approved the second quote on 30 October 2018.

On that very same day, Mr Jasper Chong (“Mr Chong”), the “regional Head of Transformation and Adoption for Services Delivery in the APJ and GCN regions” (ie, a member of the services delivery team), organised a call with the claimant and Mr Gupta, amongst others, to “resolve the issue”. After the call, Mr Chong sent the claimant an e-mail and carbon copied Ms Raman. In that e-mail, Mr Chong purported to reiterate the discussion which took place during the call regarding Mr Gupta’s improper conduct:

It is a subject of dispute as to whether the points which Mr Chong purported to reiterate in his e-mail were an accurate summary of the discussion during the call. Nevertheless, it suffices for present purposes to say that the claimant was clearly unhappy about the contents of Mr Chong’s e-mail, particularly his comments on Mr Gupta’s conduct. It was at this moment that tensions reached a crescendo.

The claimant replied to Mr Chong (the “31 October 2018 E-mail”), carbon-copying Ms Raman as well as Mr Samrat Pattnaik, the “Customer Engagement Manager” and “Customer Value Organisation lead” in India, Mr Farooq, and Mr Rupesh Bhayana, “Head of Digital Technology Services” for APJ. In the 31 October 2018 E-mail, the claimant sought to “defend” Mr Gupta, and also addressed Ms Raman directly:

Ms Raman replied, saying that Mr Chong was “calling out his observations based on the discussion [the claimant, Mr Chong, Mr Gupta, and others] had”. She also told the claimant not to “muddy this discussion by [his] personal opinions about [her]”, and added that they could “discuss this in a forum that is more appropriate”.

Ms Raman later forwarded the e-mail chain containing the 31 October 2018 E-mail, and her response, to Ms Blatt, stating:

Ms Blatt responded, saying, “Ok. I need to intervene here; I think.” She also forwarded the e-mail chain to Mr Farooq, telling him that she was “not sure of all the small details” but that the claimant’s e-mail (ie, the 31 October 2018 E-mail) was “way out of line”. Mr Farooq agreed that it was “completely out of line” and added that he had spoken to the claimant about it.

Slightly less than two weeks later, on 13 November 2018, Ms Seabury reached out to the claimant to “discuss the breakdown in relations between [Mr Gupta] and [the services delivery team] in India”. She also told the claimant that, based on the e-mails she had been sent, “this [had] gone a lot further in public debate [than] it ever should have done” and that she had “received a formal request from mgmt. for this to be dealt with [once] and for all”. The claimant told Ms Seabury that “this [was] a pointless distraction” as there were “much bigger issues” that needed to be addressed, and that he was “confident that [Mr Gupta] [would] come out shining in this”.

Ms Seabury, however, highlighted the severity of the issue to the claimant and told him to apologise to Ms Raman:

On or around 14 November 2018, the claimant sent an e-mail to Ms Seabury, in which he stated, amongst other things:

On that same day, Ms Seabury also reached out to Mr Farooq to “talk about [the claimant] and the last email exchanges regarding [Mr Gupta] and his comments about [Ms Raman]”.

The Compliance Complaint

On 20 November 2018, Mr Chong sent an e-mail to Ms Seabury, carbon-copying Ms Raman, to lodge a formal complaint against Mr Gupta for his alleged misconduct with regards to his handling of the delivery timelines for the Sesa Goa project (the “Compliance Complaint”). The alleged incidents of misconduct in the Compliance Complaint were as follows:

The claimant was interviewed as part of the investigations into Mr Gupta’s conduct by the Corporate Audit department (the “CA department”), since he was Mr Gupta’s team leader. Ms Teo-Gomez, who was generally copied on the correspondence relating to the Compliance Complaint and aware of the investigative process, initially suggested that the investigators look into the claimant’s actions as well since it was not clear if the claimant was involved in the reduction of the delivery timeline for the Sesa Goa project. However, the claimant was ultimately not investigated.

As it turned out, the CA department did not make any finding of non-compliance against Mr Gupta, concluding instead that there was a disconnect between the services sales and services delivery teams.

Escalation of the claimant’s conduct to Ms Teo-Gomez and the events leading to the Performance Improvement Plan (the “PIP”)

On 20 November 2018, the same day that the Compliance Complaint was lodged, Ms Seabury sent an e-mail to Ms Teo-Gomez, attaching various e-mail exchanges involving the claimant, including the e-mail chains containing the 12 July 2018 and 31 October 2018 E-mails (which pertained to the Wipro Incident and the Sesa Goa Incident respectively). She expressed her dissatisfaction with the claimant’s conduct in the e-mail exchanges and elsewhere, including his refusal to apologise to Ms Raman for the 31 October 2018 E-mail. She also intimated her view that the claimant “[could not] continue in his role”:

Ms Seabury also sent another e-mail to Ms Teo-Gomez on the same day, stating:

While Ms Teo-Gomez agreed that some of the claimant’s e-mails “do create tension/friction; undermines a leader and doesn’t reflect well of expected leadership [behaviours]”, she asked for evidence of coaching or feedback which had been provided to the claimant and suggested that a “final written warning” be provided instead of removing the claimant.

Over the course of the next month or so, Ms Teo-Gomez, along with other personnel from the Employee Relations department, discussed with Ms Seabury the various options open to her with regards to the claimant. These included having the compliance department investigate the claimant to see if any of the conditions for terminating the claimant’s employment for cause were made out, as well as placing the claimant on a performance improvement plan (“PIP”) and/or issuing him a warning letter. Ultimately, it was decided that the claimant should be placed on a PIP.

The PIP and the termination of the claimant’s employment

On 1 February 2019, Ms Seabury sent to Ms Teo-Gomez, for her comments, an official warning letter which she intended to issue to the claimant. She also told Ms Teo-Gomez that she had drafted a PIP for the claimant and intended to do a “Zero increase in salary and implement the PIP” upon the claimant’s return from an overseas trip.

On 21 March 2019, Ms Seabury wrote to the claimant to inform him that he would be formally placed on the PIP for a period of 45 days starting from that day. The PIP listed five key “Performance concerns/improvement areas”:

The PIP ended on 5 May 2019. According to Ms Teo-Gomez, Ms Seabury and Ms Blatt did not consider the issues with the claimant’s conduct to have been satisfactorily resolved and were of the opinion that the claimant was only “simulating his behaviour so as to satisfy the PIP”. However, they were “open to discussion about the action to be taken following the PIP”.

While Ms Teo-Gomez sought documentation of the PIP process from Ms Seabury, Ms Seabury did not ask for any specific step regarding the claimant’s employment to be taken and, hence, Ms Teo-Gomez assumed that Ms Seabury was content to continue working with him.

On 25 October 2019, however, Ms Seabury wrote to Ms Teo-Gomez to inform her that there continued to be issues with the claimant’s conduct following the expiry of the PIP. Ms Seabury made known her desire for the claimant’s employment to be terminated “as soon as possible”:

Ms Seabury and Ms Teo-Gomez then began to plan for the termination of the claimant’s employment. The notice of termination was finally served on the claimant on 21 November 2019. It stated that the claimant would be placed on garden leave from 22 November 2019, and that his last day of employment with the defendant would be 31 December 2019.

It should be noted that the termination of the claimant’s employment was effected in accordance with the claimant’s employment contract (the “Employment Agreement”). Clause 11.1 of the Employment Agreement stated:

In fact, the defendant gave the claimant more than the required one month’s notice.

The parties’ cases

The claimant’s case

The claimant’s case is that the defendant’s senior leaders pinned the blame on him for its severe fundamental organisational issues and “conspired to silence him”. He names as the conspirators Ms Blatt, Ms Seabury, Ms Raman, Mr Farooq and Ms Teo-Gomez (collectively, the “Conspirators”) and says that they “plotted to remove him” after he refused to apologise to Ms Raman in the manner directed by Ms Seabury in the 31 October 2018 E-mail.

The claimant submits that the defendant terminated his employment pursuant to an unlawful means conspiracy. The unlawful acts which the claimant identifies as founding the unlawful means conspiracy are breaches of various implied terms in the Employment Agreement. Amongst other things, the claimant alleges that:

(a) He was merely defending Mr Gupta in the 12 July 2018 E-mails and the remarks which he directed at Ms Raman were intended to highlight that she was “ducking blame for [the services delivery team’s] issues and foisting it onto [Mr Saripalli] and [Mr Gupta]”, as well as to call out her motivations to blame Mr Gupta due to pre-existing tensions between her and Mr Gupta.

(b) Following the 12 July 2018 E-mails, Ms Raman forwarded the e-mail chain which contained a one-sided picture to Ms Blatt, without any context surrounding the underlying problems which the claimant and his services sales team were facing, in order to portray the claimant in a bad light.

(c) He was justified in sending the 31 October 2018 E-mail as Mr Chong’s previous e-mail had contained falsehoods and it was reasonable for him to defend Mr Gupta considering the severity of Mr Chong’s allegations. Moreover, he had merely carbon-copied individuals who had a long working relationship with Mr Gupta so that they could provide their own view of what Mr Chong was suggesting were serious character flaws on Mr Gupta’s part.

(d) He was targeted and eventually terminated from his employment by the Conspirators as punishment for not apologising to Ms Raman. This is evidenced by the fact that he underwent a “pre-ordained HR process” after Ms Teo-Gomez was first notified of his conduct in November 2018. While he was willing to apologise to Ms Raman on a “mutual basis”, this was not an apology in the manner which the defendant’s senior leaders (ie, Ms Blatt, Ms Seabury and Mr Farooq) dictated.

(e) The defendant’s senior leaders did not evaluate his side of the story and, by focusing primarily on the apology to Ms Raman, failed to address the “severe substantive issues” plaguing the services delivery team in the APJ region that he and his services sales team were trying to communicate to them.

(f) The Compliance Complaint was instituted by Ms Raman’s services delivery team to deflect from their own incompetence and the issues which gave rise to the Sesa Goa Incident.

(g) The PIP which he was placed on was a charade. It was a hatchet job and its outcome was pre-ordained in that it was never legitimately introduced to give him an opportunity for long-term correction and Ms Teo-Gomez already had the “end-game” of terminating his employment in mind when he was placed on the PIP.

(h) There were no issues relating to his performance during or after the PIP.

(i) After the notice of termination was served on him, Ms Teo-Gomez had a meeting with him in which she threatened him to “not even think of challenging” his termination in court as “[t]his is Singapore”.

Alternatively, the claimant says that there was a lawful means conspiracy to terminate his employment. According to the claimant, the Conspirators conspired to hide the services delivery team’s failures and their own management shortcomings in order to “blame it all” on him and Mr Gupta. In so doing, he was “put through a traumatic and humiliating series of events” before his eventual termination.

In relation to the Employment Agreement, the claimant alleges that the defendant breached two implied terms – namely, the implied term of mutual trust and confidence, and the implied term not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith.

Finally, the claimant submits that the defendant’s breaches and/or the Conspirators’ conduct led him to suffer loss and damage in the form of:

The claimant also says that he is entitled to aggravated damages and punitive damages because of the defendant’s “outrageous conduct” in its treatment of him.

In the main, the claimant seeks a sum of $4,961,767.05 in damages.

The defendant’s case

The defendant says that the claimant brought his case because the business he started after his employment was terminated failed and he was unable to achieve the level of remuneration he enjoyed when he worked for the defendant.

The defendant’s position is that the claimant’s inability to work with other leaders and teams in the business led to frequent escalations, and Ms Blatt had to spend a disproportionate amount of time managing these conflicts. Ultimately, Ms Blatt took an executive decision to exercise the contractual right to terminate the claimant’s employment.

In its submissions, the defendant emphasises that the claimant’s employment was terminated lawfully in accordance with the contractual termination provision of the Employment Agreement. The defendant submits that the claimant’s argument for an implication in law of a term that an employer cannot exercise its contractual right to terminate a contract of employment arbitrarily, capriciously, perversely, irrationally, or in bad faith flies in the face of the trite common law rule that an employer can terminate the employment of its employee for any reason or for none, so long as it is provided for in the contract.

In any case, the decision to terminate the claimant’s employment was a management decision “borne out of genuine concerns about [the claimant’s] inability to conduct himself professionally as a senior regional leader”. This arose from, amongst other things, the claimant’s “abrasive and confrontational” management style, hostility and inability to work professionally with people, manner of dealing with challenges (which included “pointing the finger” at other teams, lecturing other leaders on how to do their jobs and adopting a “take-it-or-leave-it” approach which precluded collaboration and promoted an “us-against-them” mindset), and injection of irrelevant personal attacks into workplace discussions. Specifically, the defendant alleges that:

The defendant also says that Ms Seabury saw the logic in providing the claimant with opportunities to improve himself, and that the PIP which the claimant was placed on was “a developmental, not a disciplinary process”. However, “problems with [the claimant] persisted”, including that he remained hostile towards Ms Raman’s team, and the decision to terminate the claimant’s employment was made because of the “deeper, systemic issues with [his] ability to work productively within a cross-functional leadership team”.

The defendant also submits that there is no implied duty of mutual trust and confidence under Singapore law. Even if there was such an implied duty, the damages which the claimant seeks are unsustainable at law as there is no basis for relief beyond the required notice payment in the Employment Agreement. In addition, the claimant’s claim for psychiatric injury damages is unsustainable and baseless.

As for the breach of the implied term to conduct fair investigations, which the claimant says is a subset of the implied term of mutual trust and confidence, the defendant argues that such a claim is legally and factually unsustainable because it is “merely a repackaged wrongful termination claim” and thus does not entitle the claimant to any damages beyond his notice pay. The claimant was never the subject of any investigation, and there was no duty on the part of the defendant to investigate before exercising its right to terminate the claimant’s employment. In any case, the claimant was afforded opportunities to clarify his position.

Finally, in relation to the conspiracy claim, the defendant says that it must fail in limine because a company cannot conspire with its employees acting within the scope of their authority. The defendant also submits that it is fanciful to characterise the exercise of the contractual right to terminate as evincing a predominant purpose to injure in a conspiracy, since the consequences of either side exercising that right were known to both parties. In any event, the conspiracy claim is superfluous because it is a mere repackaging of the claimant’s wrongful termination claim, and the claimant’s conduct before and during these proceedings debunks the conspiracy claim.

Issues to be determined

The following issues arise for determination:

Before turning to deal with the claimant’s causes of action proper, it is important to emphasise that there is nothing inherently wrongful about terminating an employment contract if such termination was effected in accordance with the contract itself. One need not look further than the Court of Appeal’s (“CA”) remarks in Leiman, Ricardo v Noble Resources Ltd [2020] 2 SLR 386 at [125] (“Leiman”) (citing Vasudevan Pillai v City Council of Singapore [1968–1970] SLR(R) 100 at [7] and Ridge v Baldwin [1964] AC 40 at 65) for the trite proposition that “an employer [can] terminate an employment contract at any time, and for any reason or for none”, provided that the employer does so in a manner warranted by the contract. This flows from the general principle that parties are free to enter into and exit contracts (see Dong Wei v Shell Eastern Trading (Pte) Ltd [2022] 1 SLR 1318 (“Dong Wei”) at [92]), and that contracting parties are generally entitled to act in their own interests (see Leiman at [133]).

I emphasise this because, in parts of his pleadings and closing submissions, the claimant has sought to characterise his termination as being “wrongful”. I will deal with some of these specific instances below. It suffices to say at this juncture that I see no merit in this characterisation, as it was well within the defendant’s right to terminate the claimant’s employment at any time in accordance with the Employment Agreement. In fact, as detailed above (at [52]–[54]), the defendant went beyond its obligations in the Employment Agreement by giving the claimant more than the requisite one month’s notice.

Furthermore, it bears mentioning that the claimant himself acknowledged during the trial that the defendant could have terminated his employment in accordance with the Employment Agreement at any time:

As such, any claim which rests on the termination of the claimant’s employment being wrongful must necessarily fail.

I now turn to address each of the claims in detail.

Whether the claimant’s conspiracy claims are made out

As summarised in EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd [2014] 1 SLR 860 (“EFT Holdings”) at [112], in order for a claim in unlawful means conspiracy to be made out, the claimant must show that:

For a lawful means conspiracy, the following elements must be made out (see Tuitiongenius Pte Ltd v Toh Yew Keat [2020] 5 SLR 354 at [114], citing Visionhealthone Corp Pte Ltd v HD Holdings Pte Ltd [2013] SGCA 47 at [44] and EFT Holdings at [112]):

Essentially, as its name suggests, a lawful means conspiracy can be made out even if the acts performed by the conspirators in furtherance of the agreement were lawful. However, instead of simply showing that the conspirators had the intention to cause damage or injury to him by performing those lawful acts, the claimant must show that the predominant purpose of the conspirators was to cause damage and injury to him. In other words, the threshold at which the requisite mental element on the part of the conspirators will be made out is higher for a lawful means conspiracy than for an unlawful means conspiracy. As the CA noted in EFT Holdings (at [96]), “where self-interest is the predominant motivation [in a lawful means conspiracy], the act may be justified”.

Whether the unlawful means conspiracy claim is made out

To begin with, I have some difficulty understanding the claimant’s case as it is framed.

The claimant’s pleaded case is that the defendant and the Conspirators “agreed between and amongst them to take steps to terminate the Claimant’s employment with the Defendant” [emphasis added]. The claimant then refers to the following two particulars:

In his closing submissions, the claimant says that the Conspirators “combined to perform acts in furtherance of an agreement to terminate [him]” [emphasis added], and that the “unlawful acts” are the defendant’s “breaches of implied terms of contract”.

To my mind, to say that there is a conspiracy to terminate the claimant’s employment is an odd submission to make. It is difficult to see how there can be a conspiracy amongst various actors to terminate the claimant’s employment when the defendant could, at any time, and for any reason or for none, bring the Employment Agreement to an end. It simply does not make sense to say that there is a conspiracy to terminate a contract. As I pointed out to the claimant at trial, the defendant would have only needed to resort to a conspiracy if there was no mechanism to terminate the Employment Agreement. That, however, is not the case, as the defendant had a legally supportable way to terminate the claimant’s employment by giving him one month’s notice.

In any event, an unlawful means conspiracy has not been made out on the facts of this case. I am not convinced that the claimant has surmounted the first barrier to establishing a conspiracy, namely that there was a combination of two or more persons to do certain acts. In PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd [2018] 1 SLR 818 (“PT Sandipala”) (at [63]), the CA noted that it would be wrong to treat a director of a company as conspiring with that company given that the director is acting as the company. As the CA explained, “[t]here is effectively only one legal actor in play, ie, the company, and this is typically fatal to the fundamental requirement of a conspiracy that there be two or more persons acting in concert.” [emphasis added] The only exception is where the director has acted in breach of his fiduciary or other personal legal duties owed to the company in causing it to commit the acts that form the subject of the conspiracy (Voltas Ltd v Ng Theng Swee [2023] SGHC 245 (“Voltas”) at [33], citing PT Sandipala). While the remarks in PT Sandipala and Voltas pertain to directors of a company, I am of the view that they are equally applicable to employees of a company as they, much like directors, are agents through which a company acts. After all, the proposition in PT Sandipala cited above was derived from the more general principle in O’Brien v Dawson [1941] 41 SR (NSW) 295 (at 307) that, when an incorporated company acts through its agents, the agents “are not in the position of outsiders who are influencing the independent volition of a contracting party who is capable of exercising volition for himself” (cited in PT Sandipala at [63]; see also Said v Butt [1920] 3 KB 497 at 504–507, where the principle was held to apply to “either a managing director or a board of directors, or a manager or other official of a company”).

The claimant’s reliance on Nagase Singapore Pte Ltd v Ching Kai Huat [2008] 1 SLR(R) 80 (“Nagase”) to say that it was possible to find a conspiracy between the director and the company does not assist his case. It is true that, in Nagase (at [22]), Judith Prakash J (as she then was) was satisfied that “ in law, there can be a conspiracy between a company and its controlling director to damage a third party by unlawful means notwithstanding that the director may be the moving spirit of the company” [emphasis added]. However, as the CA emphasised in PT Sandipala (at [72]), the approach which it took “[did] not contradict the position (established in cases such as Nagase) that a company and its director, notwithstanding that the director is the moving spirit of the company, can in principle conspire to cause harm to third parties”. The CA was more concerned with demarcating the situations in which a company could be held to be conspiring with its director to breach the company’s contract. In this regard, the CA explained (at [70]) that Nagase was a case in which the director, who fraudulently overcharged the claimant in breach of the company’s contract with it, was “clearly in breach of his fiduciary duties owed to the company”.

In the present case, the claimant has not sought to demonstrate that the Conspirators had acted in breach of fiduciary or other personal legal duties owed to the defendant. In fact, the claimant is not seeking to hold the Conspirators personally liable for the defendant’s actions. Hence, there was effectively only one legal actor at play (ie, the defendant) as far as the termination of the claimant’s employment is concerned and, a fortiori, there could not have been a combination between the defendant and the Conspirators to terminate the claimant’s employment.

Even if one were to take the claimant’s case at its highest and assume that the defendant had committed unlawful acts by breaching various implied terms in the Employment Agreement, I do not think it can be said that the alleged conspirators had the intention to cause damage or injury to the claimant by those acts. In EFT Holdings (at [101]), the CA stated in no uncertain terms that, for the requisite state of mind for an unlawful means conspiracy to be made out, it is “not sufficient that harm to the claimant would be a likely, or probable or even inevitable consequence of the defendant’s conduct” [emphasis added], and that “[i]njury to the claimant must have been intended as a means to an end or as an end in itself”.

The claimant has not explained how the defendant and the Conspirators had intended to cause damage or injury to him as a means to an end or as an end in itself. Indeed, the claimant would be hard-pressed to do so. To recapitulate, the claimant says he suffered the following forms of loss and damage as a result of the conspiracy: (a) continuing financial losses, including loss of earnings; (b) damages for pain and suffering and disamenities caused by MDD; and (c) injury to his reputation, pride and dignity, and humiliation, distress, insult, and/or pain.

Further, even if I proceed on the assumption that these losses are made out, I am unable to find any conceivable basis to say that the defendant and the Conspirators had intended to cause these forms of loss and damage to the claimant as an end in itself, or as a means to the end-goal of terminating the claimant’s employment. It should be borne in mind that even an appreciation that a course of conduct would inevitably harm the claimant would not amount to an intention to injure (see EFT Holdings at [101]). There is no way that the injury suffered by the claimant can be said to be an inevitable consequence of the defendant’s and the Conspirators’ course of conduct.

As such, I have no hesitation dismissing the unlawful means conspiracy claim.

Whether the lawful means conspiracy claim is made out

My remarks above (at [84]–[86]) in relation to the claimant being unable to show that there was a combination between the defendant and its employees to do certain acts for an unlawful means conspiracy to be made out apply with the same force to the claim in lawful means conspiracy.

Furthermore, as I have found that the mental element for an unlawful means conspiracy claim to succeed is not made out, it follows that a lawful means conspiracy would likewise not be made out as it involves the more stringent mental element of having the predominant purpose to cause injury or damage to the claimant (see Chan Pik Sun v Wan Hoe Keet [2024] 1 SLR 893 at [173]). If the claimant cannot even establish that the defendant and the Conspirators had intended to cause injury to him, he would likewise fail in showing that the predominant purpose of their course of conduct was to cause such injury. Additionally, as the CA noted in EFT Holdings (at [96]), in the context of a lawful means conspiracy, the acts may be justified if self-interest is the predominant motivation. Hence, at least where a lawful means conspiracy claim is concerned, the defendant and the Conspirators would have been perfectly entitled to embark on the course of conduct which they did if their primary motivation was to remove the claimant from the defendant because they did not think he was a suitable fit for the job any longer.

Accordingly, I likewise dismiss the alternative claim in lawful means conspiracy.

I now turn to address the claimant’s allegation that the defendant has breached implied terms in the Employment Agreement.

Whether the implied term not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith and the implied term of mutual trust and confidence exist in the Employment Agreement

The claimant says that the defendant breached two implied terms – namely the implied term of mutual trust and confidence, and the implied term not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith.

I will first deal with the implied term not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith, as the claimant’s arguments in relation to this term can be dismissed fairly easily. To the extent that the implied term to conduct fair investigations, while pleaded as a separate term from the implied term of mutual trust and confidence, is advanced in the claimant’s closing submissions as a subset of the latter, I will deal with them together.

Whether the implied term not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith exists

The claimant says that there is an implied term in the Employment Agreement not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith.

In Dong Wei (at [91]–[92]), the Appellate Division of the High Court (the “AD”) was clearly unconvinced that such a limitation on the employer’s exercise of his express contractual right to terminate the employment of an employee in accordance with the employment contract should be implied into the contract. While the AD acknowledged that there were some authorities, such as Braganza v BP Shipping Ltd [2015] 1 WLR 1661, MGA International Pte Ltd v Wajilam Exports (Singapore) Pte Ltd [2010] SGHC 319 (“MGA”) and Leiman, which suggest that contractual discretions are not wholly unfettered, these cases pertained to rights subsisting within the contours of the contract and not the right to bring a contract to an end. The AD considered this to be a “crucial distinction which … powerfully [undercut]” the appellant’s argument that these authorities should be extended.

As the AD stated, different considerations are engaged where the termination of a contract is concerned. A key consideration, and indeed the golden thread underlying much of the common law surrounding contracts, is the notion of freedom of contract. The natural corollary of parties’ freedom to enter contracts is their freedom to exit contracts. This must be so, as the law does not generally impose an obligation on contracting parties to remain in a contractual relationship indefinitely.

In the face of the AD’s unambiguous view (in Dong Wei at [93]) that this was “not an acceptable direction in which the law of contracts ought to be developed”, I can see no basis for the claimant to advance a claim which is founded on this implied term.

I now come to the nub of the present case, namely, the implied term of mutual trust and confidence.

Whether the implied term of mutual trust and confidence exists

The law on the implied term of mutual trust and confidence

The implied term of mutual trust and confidence has its genesis in the House of Lords case of Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1998] AC 20 (“Malik”). The claimants there were former employees of the defendant bank who lost their jobs when the defendant collapsed. The defendant had, for a number of years, been carrying on its business fraudulently. The claimants alleged that, as a result of the corrupt and dishonest manner in which the defendant operated and which became widely known following its collapse, they were handicapped in the labour market by the stigma of being associated with the defendant. They claimed that they suffered loss as a result.

The House of Lords held that there was an implied obligation on an employer not to carry out a dishonest or corrupt business, and that damages were recoverable for financial losses sustained if the serious possibility that an employee’s future employment prospects would be handicapped was reasonably foreseeable. Such an obligation flowed from the implied term of mutual trust and confidence, which was defined by Lord Steyn as imposing an obligation that an employer shall not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” (Malik at 45). This would become the locus classicus for the implied term of mutual trust and confidence.

Leaving aside subsequent developments of the implied term in the UK and other jurisdictions at this juncture, the implied term would, over the course of the next 15 years, gradually find its footing in our legal landscape. In Scott Latham v Credit Suisse First Boston [1999] SGHC 302 (at [54]–[57]), Chan Seng Onn JC (as he then was), in assessing the claimant’s claim for assessment of loss arising from wrongful termination based on his discretionary bonus, mentioned the implied term in Malik in obiter remarks. Chan JC noted that, even if the implied term was pleaded, he did not think that a claim under the “stigma” head of loss could be made out in the circumstances of the case.

Subsequently, in Wong Leong Wei Edward v Acclaim Insurance Brokers Pte Ltd [2010] SGHC 352 (“Edward Wong”) (at [52]), Steven Chong J (as he then was), in obiter remarks, accepted the claimant’s submission on the authority of Malik that, in principle, if it could be shown that the defendant had wrongfully dismissed him in a manner that was dishonest or illegitimate which amounted to a breach of the implied term, and as a direct result of that wrongful dismissal it can be proven that he suffered a real and provable financial loss, the claimant would be entitled to claim against the defendant for such loss beyond the contractual notice period. However, as Chong J had already found that the defendant was entitled to terminate the claimant’s employment on two separate grounds, there was no merit to the claimant’s claim for damages arising from the handicap he allegedly suffered in the labour market as a result of his dismissal.

Finally, in Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577 (“Cheah Peng Hock”) (at [59]), a Singapore court pronounced definitively for the first time that “unless there are express terms to the contrary or the context implies otherwise, an implied term of mutual trust and confidence, and fidelity, is implied by law into a contract of employment under Singapore law”. This was the first case that squarely dealt with the question of whether the implied term existed under Singapore law.

Given Quentin Loh J’s unequivocal pronouncement in Cheah Peng Hock that the implied term of mutual trust and confidence was implied by law into all employment contracts under Singapore law, it is easy to see why subsequent decisions proceeded on such a basis. As Prof Ravi Chandran describes in Employment Law in Singapore (LexisNexis, 6th Ed, 2019) at para 4.434, the implied term of mutual trust and confidence can be said to have “strongly taken root here” after Cheah Peng Hock. Indeed, in Dong Wei v Shell Eastern Trading (Pte) Ltd [2021] SGHC 123, the decision which went on appeal in Dong Wei, Aedit Abdullah J accepted (at [32]) that the term was “implied by law in employment contracts, as has been recognised in a number of cases”.

In as much, however, as the implied term of mutual trust and confidence had “strongly taken root” in our local jurisprudence after Cheah Peng Hock, the AD’s comments about the implied term in Dong Wei raised the question as to whether the implied term can still be said to exist under Singapore law.

In Dong Wei, the AD dismissed the appeal entirely on the facts, as the appellant had not challenged various factual findings which formed the basis for his claim that the respondent had breached the implied term. The upshot of this was that he was taken to have accepted, amongst other things, that the investigation process which he was subject to prior to the termination of his employment was fair and the outcome was not preordained (see [41]). This undermined the appellant’s claim for breach of contract.

Nevertheless, the AD went on to make obiter remarks which cast some doubt on the existence of the implied term of mutual trust and confidence in employment contracts under Singapore law. Specifically, while the AD accepted (at [70]–[71]) that Cheah Peng Hock stated in clear terms that the implied term formed a part of Singapore law and that other High Court cases had alluded to or implicitly accepted the term, it was of the view (at [82]) that the status of the implied term “ha[d] not been clearly settled in Singapore” and that it remained an open question for the CA to resolve in a more appropriate case. This followed the CA’s remarks in The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd [2015] 3 SLR 695 (“One Suites”) (at [44]) that the position of the implied term of mutual trust and confidence was “still left open for decision in a future case”.

The claimant says that this is such a case. Indeed, this is a case in which it is necessary for me to decide whether to proceed on the basis that the implied term of mutual trust and confidence exists or does not exist in employment contracts under Singapore law. Having carefully reviewed the parties’ arguments and the relevant authorities, I have decided to proceed on the basis that such an implied term does exist under Singapore law. As I will explain, my conclusion is shaped by precedent, principle and policy.

(1) There is ample precedent for the implied term of mutual trust and confidence in Singapore law

To begin with, both the CA and AD have stated in no uncertain terms that the question of whether the implied term of mutual trust and confidence exists under Singapore law is an open question (see [110] above). Apart from Dong Wei and One Suites, the only other case at the appellate level which has dealt with the implied term is the CA’s decision in Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2014] 4 SLR 357 (“Wee Kim San”).

Wee Kim San concerned an appeal against the assistant registrar’s decision to strike out the appellant’s suit. The appellant had argued, inter alia, that there was an arguable case that he was entitled to damages exceeding the amount of salary payable for his contractual notice period if such damages flowed from a breach of the implied term of mutual trust and confidence. However, the appellant’s claim for damages was beyond the amount of salary payable for his contractual notice period and was thus legally unsustainable. It was on this basis that the CA dismissed the appeal. As the AD noted in Dong Wei (at [73]), however, the CA’s discussion of the term was “limited substantially by the factual and procedural context of the case before it” and should not be taken as a formal endorsement of the term. Moreover, Wee Kim San was referred to in One Suites when the CA remarked that the existence of the implied term was still an open question. It is for this reason that the AD in Dong Wei said that, on the CA’s own reading of Wee Kim San, the question of whether such an implied term exists under Singapore law is a question that has yet to be determined.

As such, the references to Wee Kim San, in this judgment, on the term of mutual trust and confidence must be understood in the context that the comments on the implied term were obiter remarks.

Notwithstanding this, it is undeniable that there is ample precedent in our local jurisprudence at the High Court level to ground the implied term of mutual trust and confidence. In other words, such an implied term is not being plucked out of thin air. As noted by the AD in Dong Wei (at [71]), the High Court cases which have either alluded to or implicitly accepted the existence of the implied term include the following: Cheah Peng Hock, Edward Wong, Brader Daniel John v Commerzbank AG [2014] 2 SLR 81 (“Brader Daniel John”), Tullett Prebon (Singapore) Ltd v Chua Leong Chuan Simon [2005] 4 SLR(R) 344, Leong Hin Chuee v Citra Group Pte Ltd [2015] 2 SLR 603 and Arul Chandran v Gartshore [2000] 1 SLR(R) 436. I am thus not in any shortage of company in proceeding on the basis that such an implied term exists in our law.

Moreover, as Andrew Phang J (as he then was) noted in Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927 (“Forefront Medical Technology”) (at [44]):

I note that, subsequent to Dong Wei, there were three General Division of the High Court decisions in which the implied term was considered or referenced. In two of them – namely, Kallivalap Praveen Nair v Glaxosmithkline Consumer Healthcare Pte Ltd [2023] 3 SLR 922 (“Kallivalap Praveen Nair”) and BCG Partners (Singapore) Ltd v Sumit Grover [2024] SGHC 206 (“BCG Partners”) – the court did not take a position on whether the implied term formed part of Singapore law.

In Kallivalap Praveen Nair (at [37]), Kwek Mean Luck J proceeded on the assumption that the implied term was part of Singapore law (while expressly stating that he was not making a judgment on it). He rejected the claimant’s pleaded version of the implied term, which he found to be “very different” from the original formulation of the implied term in Malik (see Kallivalap Praveen Nair at [35]–[37]). In BCG Partners (at [80]–[82]), Wong Li Kok Alex JC (as he then was) noted that the existence of the implied term was an open question and said that it was unnecessary for him to resolve this legal issue as, in his view, the claimant would not have breached the implied term even if it applied.

In Dabbs, Matthew Edward v AAM Advisory Pte Ltd [2024] SGHC 260 (“Dabbs”) (at [89]), however, Wong JC stated in clearer terms that he was “not minded to conclude” that such an implied term existed under Singapore law. Dabbs and Dong Wei were cited by the defendant to advance the submission that “the Singapore Courts have answered [the question of whether the implied term exists] in the negative”.

On no reading of Dong Wei can it seriously be contended that the AD answered the question in the negative. The AD had explicitly left the question open and, on my reading of its grounds of decision, was concerned with correcting the misperception that the CA had, in Wee Kim San, accepted that the implied term exists in Singapore law (see [70] and [73] of Dong Wei). That leaves Dabbs as the only known case thus far in which a Singapore court has expressly pronounced that the implied term does not exist under Singapore law.

In spite of the pronouncement in Dabbs, I would still be in good and abundant company in taking the position that the implied term exists under Singapore law. To my mind, it is tolerably clear that the corpus of authorities in Singapore overwhelmingly supports the existence of the implied term in employment contracts under Singapore law. That the AD and CA have explicitly stated that the question remains open on two occasions does not, in and of itself, cause the pendulum to swing to the other end. At the very most, they exert a gravitational pull which brings it closer to an equilibrium.

I therefore conclude, following Forefront Medical Technology (at [44]) (see [116] above) that, on the basis of precedent, the implied term has existed and continues to exist in employment contracts under Singapore law since the court’s pronouncement in Cheah Peng Hock, unless and until Cheah Peng Hock is expressly overruled.

I am also of the view that principle and policy both militate toward the existence of such an implied term.

(2) The implied term of mutual trust and confidence is justified on principle

One of the objections raised by the defendant against implying the duty of mutual trust and confidence into Singapore law appears to be that it was developed specifically within the context of the UK’s unfair dismissal legislation. Indeed, this was the very reason why the High Court of Australia (the “HCA”) unanimously decided in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 (“Barker”) (at [26] and [91]–[101]) that the implied term did not form part of Australian employment law. The legislative developments in the UK, which provided the impetus for the UK courts to formulate the implied term, were very helpfully summarised by the AD in Dong Wei (at [76]):

In other words, the UK courts formulated the implied term of mutual trust and confidence in order to provide employees with a ground on which they could argue that their employer had committed a repudiatory breach of the employment contract, which would in turn allow them to say that they had been constructively dismissed (see also Wee Kim San at [24] and Eastwood v Magnox Electric plc [2005] 1 AC 503 (“Eastwood”) at [4]–[5]).

However, judicial innovations, much like those in the physical world, are rarely confined to and often outlive the original circumstances which birthed them. Early computers, for instance, were used only for mathematical calculations, but no one can realistically assert today that computers cannot be used for anything other than computation. Likewise, the implied term of mutual trust and confidence began taking on a life of its own in the UK apart from being used as a means of alleging constructive dismissal within the unfair dismissal legislative context. In Malik itself, the implied term was regarded as an independently actionable term on which damages under certain heads of losses could be recoverable (see also Johnson v Unisys Ltd [2003] 1 AC 518 (“Johnson”) at [44] and [77] and Wee Kim San at [28]). I do not think that it would be right to say that the implied term does not exist in Singapore, just because the specific legislative context which gave rise to it is absent here.

Indeed, while the AD in Dong Wei was mindful of the legislative context which spawned the implied term, it also stated in no uncertain terms (at [79]) that “it is not self-evident that the common law principles developed in support of the application of the statutory regime (ie, the implied term) can only be understood in the legislative context in which they were developed”. The AD did not regard the historical origin of the implied term as a fundamental and insurmountable objection to its acceptance into Singapore law and expressed that such a term could exist independent of that legislative backdrop “[a]s long as the court is able to precisely delineate the scope of the implied term”.

It is also important to note that the AD was cognisant of the HCA’s decision in Barker when it made those remarks (see [75] of Dong Wei). So too was the CA when it remarked in One Suites (at [44]) that the position on the implied term was still left open for discussion. As noted in Dong Wei (at [75]), the HCA in Barker took the view that the implied term had arisen specifically within the context of the UK’s legislative framework and that, outside that framework, it was not necessary to secure the effective operation of employment contracts. The HCA also remarked that the implication of the term was “a step beyond the legitimate law-marking function of the courts” (see Barker at [1]).

Indeed, in Barker (at [36]), when analysing whether the implication of the duty of mutual trust and confidence into law was justified, the HCA took the view that it needed to determine whether the implied term was necessary in the sense that it would “justify the exercise of judicial power in a way that may have a significant impact upon employment relationships and the law of the contract of employment in this country”. Necessity, in turn, could be demonstrated by the “futility of the transaction absent the implication”.

It would appear that the HCA was concerned about the far-reaching implications which the implied term may potentially engender, including positive duties foisted unwittingly upon employers (see Baker at [39]):

It was in this context that the HCA said (at [40]) that “[t]he complex policy considerations encompassed by those views of the implication mark it, in the Australian context, as a matter more appropriate for the legislature than the courts to determine”. That is perhaps why the HCA so emphatically pronounced (in the opening paragraph of Baker, no less) that the implication of the duty of mutual trust and confidence was “a step beyond the legitimate law-making function of the courts”. Curiously, though, while the HCA ruled out the implied term of mutual trust and confidence from Australian law, it left open the question of whether the standard of good faith should be applied generally to contracts or particular categories of contracts (such as employment contracts) in Australia (see Baker at [107]). The duty of good faith has been considered to be wider and more nebulous than the implied term of mutual trust and confidence (see Cheah Peng Hock at [45]–[55]).

More fundamentally, it is unclear if the test for the implication of terms into law in Australia is the same as that in Singapore. As mentioned (at [129] above), the HCA in Barker had alluded to necessity as the key criterion governing the implication of terms into law. In a previous decision, Byrne v Australian Airlines Ltd (1995) 131 ALR 422 (at 450), the HCA alluded to the concept of necessity as encompassing an inquiry into whether “unless such a term be implied, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined” [emphasis added]. This undoubtedly sets a high bar for the implication of terms in law in Australia. Additionally, the HCA in Barker (at [36]) had explicitly rejected reasonableness as being the governing criterion for such implication – although it did leave some bandwidth for policy considerations to feature in the inquiry (see also University of Western Australia v Gray (2009) 179 FCR 346 (at [141]–[147]).

On the other hand, in an oft-cited passage from Forefront Medical Technology (at [44]), Phang J described the rationale and test for the implication of terms in law in Singapore as follows:

The above paragraph was cited with approval by the CA in Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd [2006] 3 SLR(R) 769 (“Jet Holding”) at [89]). The CA held (at [91]) that the implication of a term that each party owed each other a duty to take reasonable care in the performance of the respective parts of the contract they had entered into was justified on “general reasons of justice and fairness as well as of public policy”. No mention was made of the concept of necessity.

Considerations of fairness and policy are therefore central to the implication of terms in law. This was subsequently re-affirmed by the CA in Ng Giap Hon v Westcomb Securities Pte Ltd [2009] 3 SLR(R) 518 (“Ng Giap Hon”) (at [40] and [46]) and Chua Choon Cheng v Allgreen Properties Ltd [2009] 3 SLR(R) 724 (“Chua Choon Cheng”) (at [68]). In Chua Choon Cheng (at [69]), the CA also made reference to the concept of “reasonableness”, although it cautioned that a term would not be implied in law simply because it is reasonable:

It suffices to say that I am guided by the abovementioned decisions of the CA and their dicta on the applicable legal test for the implication of terms into law, which does not appear to be of the same level of strictness as the legal test in Australia.

(3) Policy considerations militate toward the implication of the duty of mutual trust and confidence

I am also persuaded that considerations of policy and fairness militate toward the implication of such a term in Singapore law. In my view, there are many features of employment contracts which set them apart from ordinary commercial contracts such that implying the duty of mutual trust and confidence into all employment contracts would be justified as a matter of policy and fairness.

As Lord Steyn aptly put it in Johnson (at [20]), one possible way of describing an employment contract in modern terms is as a “relational contract”. A relational contract is one which involves a longer-term relationship between the parties in which they make a substantial commitment. In Yam Seng Pte Ltd (a company registered in Singapore) v International Trade Corporation Ltd [2013] 1 All ER (Comm) 1321 (at [142]), the court observed that such contracts:

The unique nature of an employment relationship and the characteristics which set it apart from an ordinary contractual relationship have also received judicial recognition in Singapore. For instance, Steven Chong JC (as he then was) noted in Aldabe Fermin v Standard Chartered Bank [2010] 3 SLR 722 (at [54]) (cited in Cheah Peng Hock at [41]) that “[i]t is important to recognise that an employment contract is not a commercial contract. It involves a continuing relationship of trust and confidence between the employer and the employee.” [emphasis added] The special nature of an employment relationship, in particular the “closeness” between an employer and employee, is also what underpins the legal position that the doctrine of vicarious liability in tort applies de facto to employment relationships or those closely analogous to employment relationships (see Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074 at [42]).

More specifically, an employment relationship can also be characterised by the power imbalance between the employer and employee, both at the stage in which the employment contract is entered into and when it is being performed. This power imbalance, coupled with the paramount role which a person’s occupation plays in his sense of identity and self-worth, makes employees especially vulnerable vis-à-vis their employers. This was very helpfully explained by Iacobucci J (delivering the judgment of the majority of the Supreme Court of Canada) in Wallace v United Grain Growers Ltd [1977] 3 SCR 701 (at [91]–[93]):

Lord Hoffman similarly observed as follows in Johnson (at [35]):

In Johnson (at [19]), Lord Steyn went as far as to recognise the increased work pressure brought to bear on employees as a result of modern developments such as globalisation and deregulation in the labour market:

Lord Steyn’s remarks, which were made over 20 years ago, surely assume greater significance today in a world where globalisation and modern communication technologies have made work an even more pervasive and all-consuming part of one’s life. It needs no mentioning that the need to protect employees from harsh and unacceptable employment practices has greatly increased since then.

I doubt that this role can be fulfilled only by the legislature and not by the courts. The defendant has raised two arguments in support of its position that the implied term of mutual trust and confidence would intrude into Parliament’s sphere of law-making. First, the defendant says that the interposition of the implied term would intrude into the wrongful dismissal regime created under the Employment Act 1968 (2020 Rev Ed) (the “EA”). Second, and more broadly, the defendant cites Parliament’s consideration of the fair balance to be struck between employers and employees as a reason why “there is simply no place for a broad and undefined implied duty of trust and confidence”.

The defendant’s arguments do not take its case very far.

In relation to the first argument, the defendant refers to the difference between the definition of constructive dismissal in the Employment Rights Act 1996 (c 18) (UK) (the “ERA”) and the EA. Section 95(1)(c) of the ERA defines constructive dismissal as a situation where “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct” [emphasis added]. Section 2(1) of the EA, on the other hand, defines the term “dismissal” as including “the resignation of the employee if the employee can show, on a balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of any conduct or omission, or course of conduct or omissions, engaged in by the employer” [emphasis added]. The defendant says that the EA, unlike the ERA, does not require any inquiry into whether the employer’s conduct amounted to a repudiatory breach or any implication of the term of trust and confidence.

Whilst it is true that the concept of constructive dismissal appears to be more specifically defined in the EA, this does not necessarily preclude the implication of the duty of mutual trust and confidence into employment contracts under Singapore law. Even if there is no need for the implied term in the constructive dismissal context because one can just have recourse to the statutory definition of “dismiss” in the EA, this does not inhibit the term from being implied for other purposes. Even in the UK, the implied term has existed independently of the statutory concept of constructive dismissal such that a breach of the implied term can found a claim in damages for breach of contract at common law (see [126] above). This is precisely the situation we are dealing with here.

As for the second argument, the defendant refers to the passing of the Workplace Fairness Act 2025 (No 8 of 2025) (the “WFA”), which prohibits an employer from terminating the employment of an employee based on the grounds of statutorily protected characteristics, highlighting that such a law required the Government to engage in extensive consultations with different stakeholders in order to strike the right balance so that employers retain some flexibility in managing their employees. The import of this, the defendant submits, is that “any adjustment of the balance between employer and employee involves deep and careful policy considerations and discussions, which is the province of Parliament”. In this regard, the defendant also cites a passage from Kallivalap Praveen Nair (at [51]) which purportedly alludes to this.

I am not persuaded that the passing of the WFA would and should hold sway over the existence of the implied term. The defendant appears to be suggesting that, because the WFA already defines the relevant grounds upon which employers’ right to terminate an employment contract may be impugned, there is no place for the common law to operate in this regard. This, however, misses the mark. While the WFA does indeed place limitations on employers’ discretion to terminate employment contracts, the implied term does not do so. I will elaborate on this below (at [158]–[161]), but it suffices to note at the present juncture that, in the UK, courts have explicitly excluded the implied term from affecting an employer’s right to terminate the employment contract. I have also rejected the claimant’s attempt at arguing that the discretion to terminate the Employment Agreement is fettered by the implied term not to engage in a termination process that is arbitrary, capricious, perverse, irrational and/or in bad faith (see [97]–[100] above). As such, I fail to appreciate the relevance of the WFA to the question of whether there should be an implied term of mutual trust and confidence in employment contracts.

Additionally, the defendant’s reliance on Kallivalap Praveen Nair is wholly misplaced. In its closing submissions, the defendant sought to impress upon me that the court in Kallivalap Praveen Nair had conveyed its doubts about whether a court hearing is the best modality to decide if the implied term in general should be part of employers’ contractual obligations:

This was, however, not the case. In Kallivalap Praveen Nair, the court was faced with the question of whether the implied term of mutual trust and confidence, as pleaded by the claimant, should be upheld. This was because the way in which the claimant pleaded the implied term, namely to say that it encompassed a duty on the part of the employer to comply with its internal policies, was found to be “very different” from its original formulation in Malik (see [35]). It was in this context that Kwek J remarked (at [51]) as follows: “[t]his brings me to another issue, which is whether a court hearing involving a private dispute between a company and its employee, is the best modality to decide if the internal policies of other companies, should be part of their contractual obligations with their employees” [emphasis added]. As such, the court’s doubts were confined to whether a court hearing is the best modality to decide if a specific duty on the part of an employer to comply with its internal policies, and not the implied term of mutual trust and confidence in general, should be part of employers’ contractual obligations.

While Kwek J did refer to Barker and noted that courts have no mandate to create laws in a manner that permits recourse to extra-legal policy factors (at [51]), he also expressed the following (at [52], [55] and [56]):

This should leave no room for doubt that Kwek J’s remarks in Kallivalap Praveen Nair, on courts not being the appropriate forum to resolve private disputes between a company and its employees, should be read as being directed at the implied term of mutual trust and confidence as pleaded by the claimant in that case (or in other words, the specific duty which the claimant alleged to have flowed from the implied term), and not the implied term in general. As such, the defendant has cited Kallivalap Praveen Nair out of context.

More broadly, it cannot be said that Parliament will be able to envisage and cater to each and every situation in which an aggrieved employee has suffered damage at the hands of his employer. Courts must therefore retain the flexibility to step in and rectify such wrongs in the appropriate case such as in Malik or Cheah Peng Hock. The facts of Malik have been discussed at [102]–[103] above. In Cheah Peng Hock, the claimant employee, who was the chief executive officer (“CEO”) of the defendant company, had his management decisions and powers systematically reversed and curtailed without being informed or involved (see [232]–[233]). The absence of the implied term of mutual trust and confidence would mean that such aggrieved employees would have no redress for the clearly unsatisfactory manner in which they are treated.

In the round, I am not convinced that courts will be intruding into the province of Parliament in holding that the implied term of mutual trust and confidence exists under Singapore law, provided that certain considerations are borne in mind. This was also alluded to by the AD in Dong Wei (at [79]) when it remarked that the historical origin of the implied term was not a fundamental and insurmountable objection to its acceptance “[a]s long as the court is able to precisely delineate the scope of the implied term, and elucidate the appropriate remedial consequences which should follow from a breach of such term”. I will elaborate more on this in the next section.

(4) Other factors that support the implication of the term of mutual trust and confidence

In Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (at [340]), Jessup J (whose dissent was upheld by the HCA in Barker at [115]), famously pronounced that “as expressed, the [implied term of mutual trust and confidence] is content-free and has the potential to act as a Trojan horse in the sense of revealing only after the event the specific prohibitions which it imports into the contract”. Indeed, the defendant relies on this pronouncement to advance its argument that the implied term is “amorphous”. While the implied term will invariably engender some degree of uncertainty, I am of the view that the potential for the implied term to act as a Trojan horse is overstated.

First, it goes without saying that the implied term must not contradict an express term of the contract and that parties are free to modify or exclude its operation in their contract by express words to that effect (see Cheah Peng Hock at [59]); see also Malik at 45). There is nothing controversial about this, as this is how implied terms in law are generally treated (see Ng Giap Hon at [31]; Chua Choon Cheng at [69]; Razer (Asia-Pacific) Pte Ltd v Capgemini Singapore Pte Ltd [2022] SGHC 310 at [90]).

Secondly, it should be noted that the implied term is not meant to restrict or fetter an employer’s right to terminate an employment contract in accordance with the provisions of that contract. In Johnson (at [46]), Lord Hoffman put this in no uncertain terms:

This subsequently became known as the “Johnson exclusion”. The implication of this would be that there is a distinction to be drawn between loss flowing from the act of dismissal itself and loss flowing from the conduct of the employer which has breached the implied term prior to the dismissal (see Eastwood at [21] and Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 All ER 278; cited in Wee Kim San at [33]). This would also mean that claims for damages based on the implied term can only be brought if the cause of action in question accrued before and existed independently of the cause of action for wrongful dismissal (Wee Kim San at [33]).

While the CA in Wee Kim San noted that no authoritative view had yet been expressed on the applicability of the “Johnson exclusion” in Singapore, it stated in clear terms (at [34]) that:

I would incline towards the view that the “Johnson exclusion” does apply in the Singapore context, simply because saying otherwise would go against the grain of the parties’ freedom to exit contracts and the distinction drawn between rights subsisting within the contours of a contract (which can be fettered) and the right to bring a contract to an end (which is generally unfettered) (see [97]–[100] above). These were the principles which led the AD to unequivocally reject any attempt to place any fetters on the right to terminate contracts in Dong Wei, and I would think that allowing the implied term of mutual trust and confidence to govern the act of termination and/or dismissal would be tantamount to achieving the same effect (albeit by a different route). That would be wholly contrary to the spirit of the AD’s remarks.

In any case, it is not necessary for me to come to a firm landing on the applicability of the “Johnson exclusion” for the purposes of disposing this matter, as the claimant has not sought to impugn the act of termination itself.

Lastly, the implied term of mutual trust and confidence is not as amorphous as the defendant makes it out to be. In every case, a court would have to refer to the original formulation of the implied term and consider if the extent to which the implied term, as pleaded, is consistent with its traditional formulation in Malik, just like any other process of interpreting contractual terms. An example of this would be the analysis which was done in Kallivalap Praveen Nair. This would ensure that the precise content of the implied term is determined on a case-by-case basis in a principled, and not arbitrary, manner, having regard to the existing legislation and circumstances in Singapore.

I note that, in Cheah Peng Hock (at [56]), Loh J listed out the following contexts in which the implied term had previously been applied:

It is not my position that all of these supposed sub-duties under the broader umbrella of the implied term are necessarily implied into all employment contracts under Singapore law.

Apart from Kallivalap Praveen Nair, another case in which the court placed limits on the implied term is University of Nottingham v Eyett [1999] 2 All ER 437. In that case, the respondent employee had complained that the appellant employer failed to inform him that his pension entitlement would be higher if he retired on a later date. Hart J held that, where an employee proposed to exercise important rights in connection with his contract of employment, the implied term of mutual trust and confidence did not require the employer to warn him that there might be a more financially advantageous way of exercising those rights. Moreover, the following remarks by Hart J (at 443) urging caution and restraint in importing positive obligations into the implied term are instructive:

It is therefore somewhat of an exaggeration to say that the implied term, in its most far-reaching form, extends to a positive obligation to take all steps which are necessary to achieve the purposes of the employment relationship (as stated in S Deakin and G Morris, Labour Law (Oxford: Hart, 4th Ed, 2005) at [para 4.91], quoted in Barker at [39]; see [130] above).

In addition, as the CA noted in Jet Holding (at [90]), some degree of uncertainty will always surround terms which are implied in law:

Indeed, it can also be argued that such uncertainty is inherent in the very nature of the common law itself. As Lord Goff famously remarked in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, “the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live.”

Uncertainty, therefore, cannot be the sole reason for throwing the baby out with the bathwater. The question that has to be considered is whether the uncertainty arising from the implied term outweighs the impetus for it. As borne out by the experience of the courts in the UK, this is something which courts are capable of doing. The duty of mutual trust and confidence has been implied and applied in the UK for decades and, indeed, the courts there have not been shy to restrict the scope of the implied term as and when necessary. At noted by the CA in Wee Kim San (at [33]), the consequence of the House of Lords’ decision in Johnson and other subsequent cases (see [158]–[159] above) was that the proposition in Malik that a breach of the implied term could give rise to other heads of damage where consequences other than the premature termination of employment have flowed “may now have to be read even more restrictively”.

Ultimately, the lodestar for any court applying the implied term of mutual trust and confidence must be Lord Steyn’s formulation in Malik (see [103] above), namely that an employer shall not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. In this regard, I add that, when one looks at the test closely, it is hardly as open-textured as its critics make it out to be. There are three aspects of the formulation which merit emphasising:

(a) The threshold which the employer’s conduct must cross in order for the test to be satisfied is a high one, in that it must be calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee. As Lionel Yee JC emphasised in Brader Daniel John (at [114]), it would take “quite extreme behaviour” on the part of the employer to satisfy the requirements of the test in Malik. Hence, it is not the case that any act of the employer which undermines trust and confidence will suffice.

(b) Whether the employer’s conduct is such that it destroys or seriously damages trust and confidence is a question that has to be assessed objectively. As succinctly put in Douglas Brodie, “Recent cases, Commentary, The Heart of the Matter: Mutual Trust and Confidence” (1996) 25 ILJ 121 at 121–122 (endorsed in Malik at 47), “what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively.” I will elaborate more on the objective standard below (at [182]–[186]), but the point to note here is that not every conduct complained off by an employee will be treated as being calculated and likely to destroy or seriously damage trust and confidence, even if that employee subjectively perceives the conduct to have damaged his trust and confidence in his employer. In my view, this will help in mitigating any unpredictability which may be inherent in the implied term and assuage any concerns on the part of employers that the term may compel them to walk on eggshells when dealing with their employees.

(c) Even if an employer acts in a way that is calculated and likely to seriously damage or destroy trust and confidence, there is no breach of the implied term if there is reasonable and proper cause for the employer to act in that manner (see Hilton v Shiner Ltd - Builders Merchants [2001] IRLR 727 at [22]–[23]). Hence, an employer will still be afforded the opportunity to justify its actions and should have nothing to fear if it had legitimate and proper reasons for so acting.

The mythical Trojan horse which the Greeks used to enter the ancient city of Troy was nothing more than a calculated ruse. Disguised as a gift, it masked a potent force which the Trojans could not anticipate, let alone defend against. The implied term of mutual trust and confidence, however, hardly deserves being associated with the pejorative connotations that accompany a Trojan horse. Far from being an insidious threat, the implied term serves only to augment and sustain the trust and confidence between employer and employee that is vital to any employment relationship.

Having concluded that the implied term of mutual trust and confidence exists in employment contracts under Singapore law, I proceed to determine whether there was a breach of the implied term on the facts before me.

Whether the defendant breached the implied term of mutual trust and confidence

The claimant submits that the defendant breached three facets of the implied term of mutual trust and confidence – the implied term not to behave intolerably or wholly unacceptably, the implied term not to reprimand without merit in a humiliating circumstance, and the fair investigations implied term.

I will deal with the claimant’s arguments in relation to each of these in turn. I also add that I reject the defendant’s contention that the claimant should not be able to rely on the implied term not to behave intolerably or wholly unacceptably as well as the implied term not to reprimand without merit in a humiliating circumstance because they were not pleaded. These are not implied terms in their own right, but are just different formulations of the larger implied duty of mutual trust and confidence which was pleaded. What is more crucial is that the acts constituting a breach of the implied term of mutual trust and confidence were pleaded, albeit slightly differently from the way these were framed in the claimant’s closing submissions, and the defendant knew the case it had to meet with regards to the conduct which was alleged to have breached such implied term. That being said, it would be prudent for a future claimant seeking to rely on the implied term of mutual trust and confidence to elucidate the precise content of the implied term on the facts of each case and explain his basis for saying so.

The duty not to behave in an intolerable or wholly unacceptable way

The duty not to behave in an intolerable or wholly unacceptable way is one of the sub-duties of the implied term of mutual trust and confidence listed in Cheah Peng Hock (at [56(h)]) (see [164] above). Cheah Peng Hock had, in turn, cited the case of British Aircraft for this specific sub-duty.

British Aircraft was a case concerning constructive dismissal. The respondent employee terminated her employment with the appellant company. The events leading up to the termination began almost a year earlier, when it became necessary for employees of the company to wear eye protectors when performing their work. Although the respondent was provided with goggles, she did not find them suitable as she wore spectacles and complained to the company’s management about this. While the safety officer was looking into the matter, the respondent heard nothing more about it six months after she first made the complaint and decided that she was left with no choice but to resign.

The UK Employment Appeal Tribunal (the “EAT”) dismissed the appeal on the basis that it found the test for constructive dismissal laid out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 to have been met, namely that there was a breach on the part of the appellant which went to the root of the employment contract or which showed that it no longer intended to be bound by an essential term of the contract. However, it also made the following obiter remarks which encapsulated the duty not to behave in an intolerable or wholly unacceptable way (British Aircraft at [13]):

As a preliminary point, the duty not to behave in an intolerable or wholly unacceptable way is an obvious facet of the implied term of mutual trust and confidence and I accept that it falls within the scope of the implied term. After all, it is virtually unthinkable that any right-thinking employee would still retain even a shred of trust and confidence in an employer who treats him in an intolerable or wholly unacceptable way.

In the present case, the claimant says that the defendant had breached the implied term not to behave in an intolerable or wholly unacceptable way by its following actions:

(a) giving him a “‘minimal increase’ of 1% in 2019 assigned to his annual target bonus” [emphasis in original omitted];

(b) forcing him to apologise to Ms Raman when he was in fact justified in his comments that triggered the Conspirators to pursue him for an apology;

(c) not assessing him at all during the PIP;

(d) deciding that he failed the PIP before it ended;

(e) not closing out the PIP;

(f) manufacturing incidents to harass him post-PIP; and

(g) issuing a notice of termination.

Before turning to discuss whether the defendant’s conduct constituted a breach of the implied term proper, I note that, on the face of it, there appears to be a contradiction within the claimant’s stated case. On the one hand, the claimant says that the defendant had behaved in an intolerable or wholly unacceptable way. On the other hand, the claimant appeared to have been content with remaining in the defendant’s employ despite its conduct. To put it another way, the claimant appeared to have tolerated the defendant’s conduct even though he now alleges that the defendant’s conduct was intolerable and wholly unacceptable.

I am of the view, however, that the question of whether the defendant had behaved in an intolerable or wholly unacceptable manner is one that has to be answered objectively. This can be derived from the general principles articulated in Malik, and summarised in Cheah Peng Hock (at [57]):

It is therefore clear that it matters not whether, subjectively speaking, the claimant’s trust and confidence in the defendant was destroyed as a result of the defendant’s conduct, so long as the claimant can show that the defendant’s conduct was, objectively speaking, of the kind that would destroy that relationship of trust and confidence. Transposing this into the duty not to behave in an intolerable or wholly unacceptable way, the question that arises for consideration is whether the defendant’s conduct was such that it would have, on an objective view, been intolerable or wholly unacceptable.

I find support for this interpretation in decisions of the EAT following British Aircraft. These decisions have cited British Aircraft for the proposition that the court’s function is to look at the conduct of the employer as a whole and determine whether its effect, judged reasonably and sensibly, is to disable the employee from properly carrying out his obligations, or is such that the employee cannot be expected to put up with it (see The Post Office v Roberts [1980] IRLR 347 at [49] and Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347 at [17]). It should not escape notice that these cases had framed the inquiry in British Aircraft as an objective one.

It was also made clear in McLoughlin v London Linen Supply Ltd (2017) UKEAT/0299/16 (at [27]), another case which cited British Aircraft, that an objective standard of reasonableness is to be applied. I am fortified in my conclusion by the following remarks made by the EAT (at [29]), which are particularly instructive:

While the EAT cases which I have referred to all concern constructive dismissal, where the employee would have necessarily resigned on his or her own volition due to an inability to tolerate or accept the employer’s conduct, they nonetheless make clear that the employee need not necessarily have had to resign in such a manner before a finding can be made that the employer had behaved in an intolerable or wholly unacceptable manner. The fact that an employee did or did not resign may have some probative value when it comes to assessing whether the employer’s conduct had breached that threshold. However, it is quite another thing to say that the employee’s decision to either resign or to stay on in the face of the employer’s conduct is dispositive of the matter.

I now move on to assess whether the defendant had behaved in an intolerable or wholly unacceptable way.

I will focus on the acts listed at (c) to (e) (at [180] above) as these go towards the gravamen of the claimant’s complaint, which is that the PIP was a “charade” and had a “pre-ordained” outcome. In my view, if the claimant was indeed pre-judged in a sense that he was not given a genuine opportunity to improve and rectify his previous behavioural deficiencies, this would indeed contravene the duty not to behave in an intolerable or wholly unacceptable way.

Having assessed the evidence, it is clear to me that the claimant was so pre-judged.

It will be recalled that, primarily as a result of the Wipro Incident and the Sesa Goa Incident, Ms Seabury became dissatisfied with the claimant’s behaviour and intimated her desire to terminate the claimant’s employment (see [43]–[44] above). She first sent Ms Teo-Gomez an e-mail on 20 November 2018 indicating that, because of the claimant’s refusal to apologise to Ms Raman for his conduct, there was “no way to move forward from [her] perspective” and that the claimant “[could not] continue in his role”. She then followed up by saying that, after speaking to other senior leaders in the defendant’s employ including Mr Farooq and Ms Blatt, there was “full alignment on removing” the claimant. When Ms Blatt was cross-examined on this e-mail, she agreed with counsel’s suggestion that “the decision ha[d] been made to remove [the claimant], to punish him for the cross-functional tensions” and testified that “[they] did not feel [the claimant] was the right leader for the role”.

Ms Seabury also asked Ms Teo-Gomez on this occasion and in another e-mail about a week later to let her know the “next steps” in relation to the claimant. Ms Teo-Gomez accepted during cross-examination that Ms Seabury, in her e-mails, was referring to “full alignment” on removing the claimant and was asking her about how to effect the plan to terminate the claimant’s employment. Indeed, this precipitated a series of exchanges between Ms Seabury and Ms Teo-Gomez on possible ways of effecting the termination of the claimant’s employment, including exploring the possibility of terminating the claimant’s employment with cause. Ms Teo-Gomez, however, suggested that the claimant be investigated by the compliance department first before taking the “appropriate actions”.

When Ms Seabury updated Ms Raman by way of e-mail that Ms Teo-Gomez had suggested putting the claimant’s situation through a “full hr compliance review”, Ms Raman was apprehensive about the claimant’s continued presence in his role, as evidenced by her following reply:

When confronted with this e-mail, Ms Raman agreed with counsel’s suggestion that she was “impatient and wanted [the claimant] out asap [ie, as soon as possible]”. However, she attempted to qualify her stated intention of having the claimant removed. According to Ms Raman, she only wanted the claimant removed from “[her] dealing with him” and not from the organisation. When I queried Ms Raman if there was anything in the documentary evidence which indicated that her intention was not to get rid of the claimant from the organisation, but only to remove him from “[her] dealing with him”, she acknowledged that there was nothing. Needless to say, I do not find the distinction which Ms Raman sought to draw convincing. It is clear from the face of her e-mail and the surrounding context (ie, being a response to Ms Seabury’s update on the claimant needing to be put through a compliance review that arose from discussions surrounding the possibility of terminating his employment) that Ms Raman wanted the claimant removed from the organisation and not simply from her sight. This was again reiterated by Ms Raman in another e-mail she sent to Ms Seabury, Ms Blatt and Mr Farooq on 13 December 2018, in which she complained about the claimant’s behaviour and repeated her call for the claimant to “go ASAP!!!”.

I should mention that the facts which I have narrated in the preceding four paragraphs do not bear directly on the defendant’s alleged breach of the implied term of mutual trust and confidence. There was nothing wrong with the defendant’s personnel discussing the termination of an employee’s employment. That is the prerogative of any business. However, this factual background does lay the foundation for the claimant’s allegation that the outcome of the PIP (namely, that the claimant’s employment would be terminated) was pre-ordained.

It is of relevance that, prior to the claimant’s placement on the PIP, there were individuals within the defendant’s management who were adamant about removing the claimant from the defendant’s employ as soon as possible. It is also instructive that there was an allusion to the “process” by Ms Raman (see [192] above) which suggests that said process was being followed only for the sake of doing so and the end-goal in mind was to terminate the claimant’s employment. Crucially, Ms Seabury appears to have endorsed Ms Raman’s suggestion to “look at possible ways to expedite this” when she forwarded Ms Raman’s response to Ms Teo-Gomez (in order to highlight the claimant’s alleged interference with the Compliance Complaint against Mr Gupta mentioned in Ms Raman’s e-mail) and stated that “[w]e must get this process moving as quickly as possible”. During cross-examination, Ms Raman agreed that the language used by Ms Seabury here insinuated her desire to remove the claimant from the organisation.

The documentary evidence also suggests that this desire for the claimant to be removed from the defendant’s employ as soon as possible persisted even when the PIP was being contemplated. On 1 February 2019, Ms Seabury sent Ms Teo-Gomez a draft of the PIP which she intended to place the claimant on, to seek her suggestions and support. She also followed up by asking for feedback on a draft warning letter meant for the claimant which she had earlier sent to Ms Teo-Gomez. In internal correspondence between Ms Gayathri Mohan (“Ms Mohan”), the “Employee Relations Partner & HR Compliance officer” who was handling the claimant’s case, and Ms Teo-Gomez, Ms Mohan expressed the view that placing the claimant on the PIP would be a “more sustainable approach” and that a warning letter would suffice “[i]f the intent [was] to let [the claimant] go in case of non improvement”. She also suggested that, since the claimant was “senior and good in work”, placing him on the PIP could be explored as it would bring in “long term correction”, and that they should speak to Ms Seabury about this.

Ms Teo-Gomez’s reply, however, is instructive:

It is clear that, at the time, Ms Teo-Gomez’s reading of the situation was that Ms Seabury and her leadership (ie, Ms Blatt), had the end-goal of terminating the claimant’s employment in mind at the same time that they were setting the PIP in motion. When Ms Teo-Gomez was on the stand, she testified that, while the decision to remove the claimant was not made yet at the time of this e-mail in February 2019), “[they] were trying to let [the claimant] go through the PIP process”. However, I note that the statement by Ms Teo-Gomez that the decision to terminate the claimant’s employment had not been made yet in February 2019 is contradicted by her later agreement with counsel’s question that the decision to remove the claimant from the business was already made by January 2019.

It is also worth noting that Ms Teo-Gomez testified that she was hopeful that, in placing the claimant on the PIP, there would be a change in behaviour and she could then “walk back the leadership from making decisions on his termination”. Leaving aside the fact that there was nothing in the documentary evidence to suggest that this was Ms Teo-Gomez’s intention at the material time, even if one accepts her testimony, the clear inference to be drawn is that the leadership was set on a course to terminate the claimant’s employment.

I add that I do not accept the explanation Ms Teo-Gomez gave, when she acknowledged that she knew of the leadership’s lack of an appetite for long-term correction of behavioural concerns and then proceeded to disagree with counsel’s suggestion that the PIP was just a charade:

As I understand it, Ms Teo-Gomez was attempting to rationalise the placement of the claimant on the PIP with the understanding that there was no appetite to provide the claimant with an opportunity for long-term behavioural correction by saying that the PIP which the claimant was eventually placed on was not long-term. Ms Teo-Gomez’s explanation is clearly an afterthought. Nowhere in the e-mails exchanged between Ms Teo-Gomez and Ms Mohan was there any distinction drawn between a 45-day PIP and a three-month or six-month PIP. The suggestion by Ms Mohan was simply to place the claimant on a PIP for long-term behavioural correction, to which Ms Teo-Gomez responded that Ms Seabury and Ms Blatt had no appetite for that. As such, Ms Teo-Gomez cannot escape the inexorable inference to be drawn from her e-mail exchange with Ms Mohan – namely, that the PIP was being proceeded with even though there was no appetite for long-term behavioural correction, which is the very essence of a PIP.

Indeed, as the name “Performance Improvement Plan” suggests, the whole point of a PIP is to provide a structured plan for an employee to improve his or her performance. And giving an employee a chance to improve his performance would only have meaning if it was done with a view to retaining him, or at least with that in contemplation as a possible outcome. This much is clear from the defendant’s own PIP policy, which lists three possible decisions to be taken upon the end of a PIP: successful completion, extension and termination/transition for unsuccessful performance. The defendant itself also says that a PIP is “intended to foster improvement and support employee success”. It would therefore be inimical to the very nature of a PIP to place an employee on a PIP with the only end-goal in mind of terminating his employment. Even Ms Blatt’s evidence on the stand was that, if the claimant performed well while he was placed on the PIP and there was no more unprofessional conduct on his part, his employment would not have been terminated.

As the evidence bears out, however, the claimant was never given a genuine opportunity to improve. The attitude which Ms Seabury bore towards the claimant, namely her desire to terminate his employment as soon as possible, persisted even after she formally placed him on the PIP.

As alluded to above (at [48]), Ms Seabury formally placed the claimant on the PIP on 21 March 2019 when she sent him the following e-mail:

The objectives stated in the PIP document are listed at [48] above. Essentially, the claimant was asked to work on improving the way he communicated with others, including those from other teams, as well as the manner in which he managed his own team. There was also a specific goal for the claimant to “[i]mprove the relationships with Delivery in India”. Notably, the scope of the PIP was not confined to correcting the claimant’s supposed abrasive and confrontational behaviour towards the services delivery team during the Wipro Incident and the Sesa Goa Incident. It also sought to guide the claimant in managing his own team better. This was something which the claimant no doubt registered in his mind and, as he testified, he regarded the PIP as an opportunity to improve:

However, barely one month into the PIP, after Ms Teo-Gomez had sent two e-mails to Ms Seabury to check on how the claimant was progressing, Ms Seabury sent the following e-mail to Ms Teo-Gomez on 24 April 2019:

This e-mail is revealing of Ms Seabury’s attitude towards the claimant. Even before the PIP was due to end, she had already expressed that she wanted to terminate the claimant’s employment as soon as possible. What is even more astonishing is that this came on the back of an improvement in the claimant’s conduct. Ms Teo-Gomez agreed that the claimant was doing his best to follow the terms of reference that were given to him in the PIP. Mr Farooq testified that, to his knowledge, the claimant had performed well during the PIP. Ms Blatt did not hear of any issues which arose in relation to the claimant’s performance while he was on the PIP. Crucially, Ms Seabury herself acknowledged that the claimant was “professional” (see the e-mail quoted at [206] above). However, she nonetheless doubted that the improved conduct on the part of the claimant was genuine and a sincere attempt at changing.

The main ground upon which Ms Seabury had come to that conclusion appears to be the fact that the claimant’s change in behaviour happened “suddenly”. However, this is perplexing in light of Ms Seabury’s own request to the claimant to “demonstrate immediate, consistent improvement in performance going forward” [emphasis added] (see [204] above). The claimant would be damned if he did and damned if he did not (demonstrate immediate, consistent improvement). After all, according to Ms Blatt, the claimant was supposedly placed on a PIP which lasted only 45 days because she and Ms Seabury felt that such a period of time would suffice for the claimant to correct his behaviour. With such a short runway of time to demonstrate the “immediate, consistent improvement in performance” which Ms Seabury demanded of him, it could only have been incumbent on the claimant to, in Ms Seabury’s words, “do a 360”. The fact that this led to such a strong level of suspicion in Ms Seabury’s mind that the claimant was merely faking his improved performance strongly suggests that the seeds of doubt were already planted in her mind way before she sent her e-mail on 24 April 2019. In other words, she had already made up her mind that the claimant would not be able to demonstrate genuine improvement in his performance.

Although Ms Seabury’s e-mail alluded to other pieces of evidence which purported to corroborate her doubt on the claimant’s genuineness and sincerity, these fall apart upon closer examination. There is, for instance, nothing to verify that the claimant had communicated to the DBS (ie, Digital Business Services) leadership that he would only “follow along” with the PIP until it was over. The claimant, while acknowledging that he spoke to the DBS leadership about the PIP, denied that he ever told them it was a “stitch up” and that he would only “follow along till its over”. No one from the DBS leadership testified on the truth of that allegation. Hence, the only admissible evidence before me is the claimant’s denial.

The court is also left none the wiser as to how Ms Seabury came to know of this allegation and whether she took any steps to verify it. Indeed, it is telling that Ms Seabury, who was quite clearly the main character within the defendant’s organisation involved in this saga, did not make an appearance in this trial. This is especially so when she was originally listed by the defendant as an intended witness, but later substituted by Ms Blatt who was not originally in the defendant’s intended list of witnesses. Ms Blatt, in turn, accepted during cross-examination that she did not have any personal knowledge of the claimant’s conduct or behaviour except through what she was told by other senior leaders such as Ms Raman, Ms Seabury and Mr Farooq.

Crucially, the objective evidence before me leads me to doubt whether Mr Jason Wolf (“Mr Wolf”) and Mr Daniel Benjamin Redwine (“Mr Redwine”) did in fact tell Ms Seabury that they did not think the claimant’s change in behaviour would last, as alluded to by Ms Seabury in the fourth point of her e-mail sent on 24 April 2019 (see [206] above). Mr Wolf was the “Head of Ariba and the License Sales team in APJ” and Mr Redwine was the “Chief Operating Officer for Ariba in APJ”. Both of them oversaw the license sales team which, like Ms Raman’s services delivery team, had to work closely with the claimant’s services sales team. About a week after Ms Seabury represented to Ms Teo-Gomez in her e-mail that both Mr Wolf and Mr Redwine believed that the claimant’s change in behaviour would only last until the end of the PIP, Ms Seabury reached out to Mr Wolf and Mr Redwine for their feedback on the claimant’s performance “over the last six weeks that he [had] been on his PIP” so that she could “complete the process” that week.

Mr Wolf had only positive things to say about the claimant’s performance, as evidenced by his reply:

On the other hand, Mr Redwine took the view that he was not in a position to provide any feedback on the claimant’s performance during the PIP period:

It is revealing that neither Mr Wolf’s nor Mr Redwine’s responses to Ms Seabury’s request for feedback corroborate her scepticism about the genuineness of the claimant’s improvement in behaviour, which was supposedly founded on their feedback (amongst other things). Neither did they indicate that they had previously spoken to Ms Seabury about the claimant’s performance during the PIP period. Indeed, Mr Redwine, in his affidavit of evidence-in-chief (“AEIC”), made no mention of any previous views he had shared with Ms Seabury about the claimant’s performance while on the PIP. In fact, he affirmed the contents of his e-mail reply to Ms Seabury when he was on the stand and testified that he did not recall telling Ms Seabury that he did not believe the claimant’s change in behaviour was real and that it would only last until the end of the PIP.

Taken together, these raise the very real possibility that Ms Seabury was not telling the truth when she represented in her e-mail to Ms Teo-Gomez that Mr Wolf and Mr Redwine were sceptical about the claimant’s good performance. Ms Blatt also agreed that it “was maybe not completely valid” to say that there was consensus amongst Ms Raman, Mr Wolf and Mr Redwine that the apparent change in the claimant’s behaviour was not genuine and would only last until the end of the PIP. The upshot of this is that, by a process of elimination, Ms Seabury’s conclusion that the claimant was only putting up a front and would not maintain his improved conduct beyond the PIP was really only based on Ms Raman’s view. This much was acknowledged by Ms Blatt as well when she was being cross-examined. Ms Raman, as we have seen, clearly had an axe to grind with the claimant and was already set on expediting the termination of the claimant’s employment even before the PIP had commenced (see [192]–[193] above). Ms Seabury’s conclusion was therefore obviously coloured by Ms Raman’s prejudiced mind.

Moreover, contrary to what Ms Seabury asserted in her e-mail, Ms Blatt testified that she was of the view that the claimant was honestly trying to comply with the PIP and that she did not share Ms Seabury’s view that the changes in the claimant’s behaviour would not be maintained beyond the PIP. This is yet another indicator that Ms Seabury was being liberal with the truth in her e-mail to Ms Teo-Gomez.

To my mind, the e-mail sent by Ms Seabury to Ms Teo-Gomez on 24 April 2019 and the e-mails exchanged between the various members of the defendant’s management prior to the claimant’s placement on the PIP paint a clear picture – that the outcome of the PIP was pre-ordained and the claimant was doomed to fail. It is not surprising therefore that even Ms Teo-Gomez acknowledged this inescapable inference:

Indeed, that the outcome of the PIP was pre-ordained is also demonstrated by the shoddy documentation which accompanied the PIP and the failure to inform the claimant of its outcome. After Ms Seabury sent her e-mail to Ms Teo Gomez on 24 April 2019, Ms Teo-Gomez asked if there were weekly check-ins with the claimant as required by the PIP and whether there were documented minutes for those meetings. She also pressed Ms Seabury for more details regarding the objectives of the PIP which the claimant had met and those which he had not. Ms Seabury, however, simply replied that she had been having weekly calls with the claimant without providing any documentation of those calls.

It would appear, though, that Ms Teo-Gomez did have a follow-up meeting with Ms Seabury about the PIP. However, she still had to press Ms Seabury for documentation and more specificity on the claimant’s performance as indicated in an e-mail which she sent to Ms Seabury on 13 May 2019:

All Ms Seabury provided to Ms Teo-Gomez, however, were progress updates that the claimant had sent to her. When Ms Teo-Gomez pressed Ms Seabury further for documentation on her end regarding the claimant’s progress, she gave a non-committal response that she would “go thru [her] notes and comments and send them thru to [Ms Teo-Gomez] next”. This back-and-forth between Ms Teo-Gomez and Ms Seabury happened, as Ms Teo-Gomez described it, “a couple of weeks since [the claimant’s] PIP ended”. On 20 June 2019, Ms Blatt, who was carbon-copied on some of the correspondence between Ms Teo-Gomez and Ms Seabury, asked for an update on the PIP as she “never saw the outcome and follow-up” on it. At that point in time, Ms Teo-Gomez was “still awaiting the info requested”. She even mentioned that “[i]deally [they] should have been laser focussed in closing out the PIP”.

Ms Seabury essentially snubbed Ms Teo-Gomez. Even after she sent Ms Teo-Gomez an e-mail on 25 October 2019 stating her intention to terminate the claimant’s employment because “several issues remain[ed] in [the claimant’s] performance” (see [51] above), Ms Teo-Gomez continued to chase her on multiple occasions for documentation regarding the PIP. More than five months after Ms Seabury told Ms Teo-Gomez that she would provide her notes on her weekly progress check-ins with the claimant during the PIP, she still had not done so. On 5 November 2019, Ms Seabury replied to Ms Teo-Gomez and conveniently stated that she had been “unable to find the emails on the final PIP discussion” and that she “[had] all of [her] notes and the date of the call but [she] [couldn’t] find any of the email exchanges on the final session and the weekly follow-up calls”.

Needless to say, Ms Seabury’s response strains credulity, and one has to wonder if such documentation of the PIP process ever existed or indeed if Ms Seabury’s purported attempts to coach the claimant were as extensive as she made them out to be. While the claimant acknowledged during cross-examination that he had weekly calls with Ms Seabury when he was on the PIP, it is unclear what those weekly calls entailed because of a lack of documentation. Ms Teo-Gomez herself agreed with counsel’s suggestion while on the stand that “[t]o [her] personal knowledge, coaching and feedback were never provided”. Hence, at the very least, the lacklustre and irresponsible manner in which Ms Seabury managed the PIP process leads to the irresistible conclusion that she did not treat it seriously. In this regard, Ms Teo-Gomez also agreed with counsel’s suggestion that, if Ms Seabury, Ms Blatt and the other senior leaders were serious in ensuring that there was a change in behaviour on the claimant’s part or that the claimant would get a real opportunity to make the appropriate changes, they would have made some effort during the PIP.

Even at the material time, Ms Teo-Gomez did not have kind words when she informed Ms Blatt that there was a “clear lack of respect for the process” and that it “seem[ed] obvious [Ms Seabury] [had] never intended to take any coaching from [herself] or Employee Relations as to how to manage this situation”. It is also of significance that Ms Teo-Gomez herself had stated pointedly to Ms Seabury that she was “very uncomfortable” with the absence of any documentation as to the final conclusion of the PIP as well as the lack of documentation during the time the PIP was in place. As Ms Teo-Gomez agreed to on the stand, the lack of documentation meant that she could not assess the claimant’s performance during the PIP objectively. Ms Blatt was also of the view that the lack of documentation was “upsetting” and that the outcome of the PIP should have been told to the claimant:

The point to be made is not that the PIP process and outcome should have been documented or that certain processes should have been followed per se, but that the failure to do so casts serious doubt over whether the PIP was actually meant to give the claimant a chance to improve.

From the claimant’s perspective, he was obviously left in the dark about all these machinations going on behind his back to terminate his employment while he was being put through the PIP process. The failure to properly close out the PIP with him led him to believe that he had successfully completed it. Indeed, this can be seen in a WhatsApp conversation he had with Mr Farooq in July 2019, in which he told Mr Farooq that the PIP had not officially been closed yet but that he was “not on PIP as far as [he] [was] concerned”. Both Ms Teo-Gomez and Ms Blatt also acknowledged that the claimant was led to believe that the PIP was successfully closed out. Even upon learning that Ms Seabury desired to terminate the claimant’s employment in November 2019, Ms Teo-Gomez expressed the view that, based on her recent discussions with some of the other leaders (including Mr Farooq, Ms Raman and Mr Wolf), she believed they would be “very surprised” by the action which Ms Seabury was proposing to take. One can only imagine the shock that the claimant must have felt when he learnt that, despite being put on a PIP, demonstrating an improvement in his performance, receiving no negative feedback and being led to believe that the PIP was successfully closed out, his employment was being terminated.

The fact that the claimant was pre-judged and put on the PIP while it had already been decided that his employment would be terminated, along with the abject shoddiness with which the PIP was handled, leads me to the conclusion that the claimant was treated in an intolerable and wholly unacceptable way. No employee should be expected to put up with being misled and deceived in such a manner. To be very clear, there was nothing inherently wrong in the defendant’s decision to terminate the claimant’s employment in accordance with the terms of the Employment Agreement. The defendant had every right to do so at any point in time. However, in so far as the defendant took great pains to emphasise that the decision to terminate the claimant’s employment was a “business decision”, “executive decision” and “management decision”, that misses the point. It is the defendant’s conduct before the termination of the claimant’s employment which is problematic. It is also irrelevant that Mr Wolf, Mr Redwine and Ms Raman supposedly continued to face difficulties working with the claimant after the PIP ended. At its highest, this amounts to a submission on the defendant’s part that it was justified in terminating the claimant’s employment. Hence, even if it were indeed true that various persons within the defendant’s organisation continued to face difficulties working with the claimant after the PIP ended, this says nothing about whether the defendant was justified in placing the claimant on the PIP without intending for it to be a genuine opportunity for him to improve because the defendant already had the end-game of terminating his employment in mind.

It is true that the defendant could have chosen not to place the claimant on the PIP. However, having chosen to place the claimant on the PIP, it was not open to the defendant to lead him on like a lamb to slaughter on the false pretext that he was being given a genuine opportunity to improve. Such dishonest conduct had no reasonable and proper cause and would, on any objective view, be calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. I accordingly find the defendant to be in breach of the implied term of mutual trust and confidence.

The duty not to reprimand without merit in a humiliating circumstance

The claimant refers to the same conduct to say that the defendant breached the duty not to reprimand without merit in a humiliating circumstance (see [180] above), which is one of the other sub-duties that purportedly flows from the implied term of mutual trust and confidence. As I have already found that such conduct breaches the implied term of mutual trust and confidence, in particular the duty not to behave in an intolerable or wholly unacceptable way, it is not necessary for me to make a finding as to whether the implied term extends to the duty not to reprimand without merit in a humiliating circumstance and, if so, whether the defendant had breached such a duty. In any case, I have doubts as to whether this sub-duty, if it flowed from the implied term, was indeed breached.

The case which purportedly established this sub-duty is Hilton International Hotels (see Cheah Peng Hock at [56(g)]) (see [164] above), which concerned an appeal to the EAT against the Industrial Tribunal’s decision to uphold the respondent’s constructive dismissal claim. In that case, the respondent employee, Ms Protopapa, suffered a toothache and made an appointment without consulting any of her superiors. She then passed the message on to her superior, Ms Glover, who gave her a reprimand described as “officious and insensitive” by the Industrial Tribunal (see Hilton International Hotels at [4]). This finding of the Industrial Tribunal could not be challenged on appeal, and its view of the superior’s conduct, as quoted by the EAT, merits setting out in full:

As the Industrial Tribunal’s findings of fact could not be challenged, the EAT did not detail the manner in which Ms Glover had reprimanded Ms Protopapa. Nevertheless, in the first place, I very much doubt that the defendant had “reprimanded” the claimant in any sense of the word. The only conduct which the claimant listed that may constitute a reprimand is the defendant giving him a minimal increase in his bonus and forcing him to apologise to Ms Raman when he was in fact justified in doing what he did. Even if these acts could constitute a reprimand, I have great difficulty in comprehending how they rose to the level of humiliating, intimidating and degrading treatment based on the descriptors used by the Industrial Tribunal (as recorded in Hilton International Hotels).

The duty to conduct fair investigations

The claimant also submits that the defendant breached the fair investigations implied term, which he says is an iteration of the implied term of mutual trust and confidence. In this regard, the claimant cites Cheah Peng Hock as establishing that the implied term encompasses such a duty to conduct fair investigations. I doubt, however, that Cheah Peng Hock stands for that broad a proposition.

In Cheah Peng Hock, the claimant was the CEO of the defendant company. In that capacity, he rolled out a series of organisational changes. There was a series of meetings with the board and senior management staff for the purpose of discussing the claimant’s changes and leadership in his absence. Subsequently, the defendant’s founder and executive director, Mr Niu, was appointed joint-CEO. The board then started reversing the claimant’s changes without discussing such reversal with him, and Mr Niu progressively took over the day-to-day operations of the company.

Loh J found, amongst other things, that the exclusion of the claimant from meetings held to discuss his decisions as CEO was a clear breach of the implied term of mutual trust and confidence. It was in this context that he made the following remarks which the claimant now relies on as a basis for the purported fair investigations implied term (Cheah Peng Hock at [102]):

I do not believe that Loh J meant to import such a wide-ranging duty to conduct fair investigations into the implied term of mutual trust and confidence. However, even if one assumes that Cheah Peng Hock does establish such a duty to conduct fair investigations, the circumstances in that case are clearly distinguishable from those in the present case. In Cheah Peng Hock, not only did the defendant’s board and management not inform the claimant about the supposed problems with his organisational changes and leadership and deliberated about these behind his back, they also took active steps to prevent and/or deter the claimant from participating in these deliberations. In other words, the claimant was being silenced. One can therefore see why he had no “opportunity to rectify any problems or clarify any misunderstandings”. Moreover, Loh J was clearly influenced by the “high level executive role” which the claimant employee in Cheah Peng Hock played, and the complexity of the organisational changes at stake.

In the present case, the claimant says he has never claimed that the defendant breached his right to a hearing or any particular process. He only claims that the defendant’s senior leaders “failed to afford him an opportunity to clarify his position”. However, I fail to see how he was not afforded such an opportunity. Unlike the claimant in Cheah Peng Hock, he was neither silenced nor deterred from airing his opinions. Neither was he kept in the dark about the accusations that were being levelled against him. To the contrary, he had ample opportunity and certainly did not shy away from staking his position and airing his views on the accusations against him.

From as early as 27 September 2018, after Ms Seabury ostensibly gave him feedback on the e-mails which he sent to Ms Raman during the Wipro Incident, the claimant forwarded the entire e-mail chain containing that correspondence to Ms Seabury (see [26] above). He went on to explain what he perceived to be the incompetence of Ms Raman’s services delivery team and how that had affected his services sales team. He also aired his grievances about Ms Raman’s e-mail responses to him, calling them “immature/childish”.

When tensions between the claimant and Ms Raman flared up once again during the Sesa Goa Incident, Ms Seabury informed the claimant that she received a formal request from management to deal with the claimant’s conduct once and for all and proceeded to detail the elements of the claimant’s behaviour which she took issue with (see [37] above). These included attacking Ms Raman on a personal level and copying other members of the senior management for India in his e-mail correspondence with Ms Raman. She was very specific in telling the claimant that he “cannot make this personal or use email to undermine the authority of a member of the leadership publicly”.

Once again, the claimant replied with a laundry list of grievances in which he pinpointed the “combination of severe shortage of resources in APJ, primarily on the Delivery side at this point in time compounded by an incompetent Delivery Management across most of the region” as the “underlying reason for all these flash points”. He also acknowledged that he had personally attacked Ms Raman, but sought to justify it on the basis that Ms Raman was the instigator behind Mr Chong’s e-mail which detailed Mr Gupta’s allegedly improper conduct (see [30] above) and that it was “part of a concerted effort to discredit one of the gems [they] [had] in [their] business in [Mr Gupta]”. Finally, he refused to apologise to Ms Raman as directed by Ms Seabury as he felt that it would not make a difference at that point in time and he could not do something so “grossly wrong” and against what he stood for in his life.

It bears mentioning that the shortfalls in the delivery team’s performance and capabilities which the claimant raised did not escape Ms Seabury’s attention. In response to Ms Raman’s e-mail complaining about the services sales team’s “bullying and antagonising behaviour” and calling for the claimant and Mr Gupta to “go ASAP” (see [193] above), Ms Seabury expressed the view that, having seen e-mails from the customer regarding its concerns about delivery resources, they could not “blame all of the issues and chatter on [Mr Gupta] and [the claimant]”.

The claimant was therefore well-aware of the accusations levelled against him regarding his conduct (regardless of the merits of those accusations). The fact that, on more than one occasion, he expressed that he was not proud of his behaviour, is testament to this. Moreover, there was always an open channel of communication between him and his direct superior, Ms Seabury, for him to air his grievances and tell his side of the story. Evidently, he was not hesitant to use it. I therefore see no merit in his complaint that he was not informed of the charges that were levelled against him and not afforded an opportunity to clarify his position. Unlike the claimant in Cheah Peng Hock, the claimant was confronted with these accusations directly and he was never deterred or systematically prevented from rebutting them.

Summary

In summary, I find that the defendant placed the claimant on the PIP even though it had the endgame of terminating his employment in mind. In so doing, the defendant had pre-judged the claimant and misled him into thinking that he was being given a genuine opportunity to improve his conduct and/or performance when this was not the case. The defendant had thereby behaved in an intolerable or wholly unacceptable way and, accordingly, breached the implied term of mutual trust and confidence in the Employment Agreement.

I now turn to the remedies sought by the claimant.

Remedies

The claimant says that, as a result of the defendant’s breaches, he suffered significant loss and damages. There are three heads of losses which the claimant claims he suffered: (a) continuing financial losses; (b) damages for pain and suffering and disamenities caused by MDD to-date; and (c) injury to his reputation, pride and dignity, and humiliation, distress, insult and/or pain. Additionally, the claimant asks for aggravated and punitive damages because of the defendant’s “outrageous conduct” in its treatment of him.

In the main, the claimant seeks $4,961,767.05 in damages.

I will deal with each head of loss in turn.

Continuing financial loss

The claimant avers that, because of the defendant’s breaches and heinous conduct leading to his eventual termination, he suffered a substantial loss of earnings of $4,961,767.05 from 2020 until 31 May 2025. He arrived at this figure by applying a “conservative” 10% uplift to his annual future earnings from his last-drawn annual income of $665,673 in 2019, less his earnings to-date of $50,000. The claimant emphasises that he was a “consistently high earner” and that his financial losses are “especially crippling” considering that he was raking in more than $700,000 at the height of his career with the defendant.

I have no hesitation rejecting the claimant’s claim for loss of future earnings.

The claimant cited Wee Kim San for the proposition that continuing financial losses are a recoverable head of loss. In Wee Kim San (at [25]), the CA noted that the normal measure of damages in wrongful dismissal cases is the amount which the employee would have received under the employment contract had the employer lawfully terminated the contract by giving the required notice or paying salary in lieu of notice (citing Alexander Proudfoot Productivity Services Co S’pore Pte Ltd v Sim Hua Ngee Alvin [1992] 3 SLR(R) 933 at [13] and Teh Guek Ngor Engelin née Tan v Chia Ee Lin Evelyn [2005] 3 SLR(R) 22 at [20]). Where a claim is brought for loss occasioned by the premature termination of an employment contract, this measure of damages would still apply even if the claim was mounted on the back of an alleged breach of the implied term of mutual trust and confidence.

That being said, the above does not preclude a claim founded on a breach of the implied term being brought for other types of losses so long as they are causally connected to such breach (see Wee Kim San at [26]):

In my view, the claimant has failed to demonstrate that his loss of future earnings was causally connected to the defendant’s breaches, beyond making a bare assertion that he is “similarly entitled to stigma damages [as in Malik] given [the defendant’s] heinous conduct which has caused irreparable damage to his ability to secure gainful employment”. In Malik, it was the dishonest and corrupt manner in which the defendant employer ran its business that resulted in the claimant employees being stigmatised and hence handicapped in the labour market by mere virtue of their prior association with the defendant. As Lord Nicholls cautioned (in Malik at 42) (cited in Edward Wong at [51]), it would ordinarily be difficult to prove the causal link between a breach of the implied term of mutual trust and confidence and the stigma suffered by an employee as a result of such breach:

Indeed, where a breach of contract is concerned, it is well-established that a claimant may only recover damages for loss flowing from the breach when the breach was the “effective” or “dominant” cause of that loss (Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782 at [60], relying on Monarch Steamship Co, Limited v Karlshamns Oljefafabriker (A/B) [1949] AC 196 at 225).

The conduct on the defendant’s part which I have found to be in breach of the implied term of mutual trust and confidence is that it had pre-judged the claimant and put him through a PIP with the end-goal of terminating his employment in mind. I fail to see how such conduct would have had any bearing on the defendant’s employability in the labour market, much less caused him “irreparable damage to his ability to secure gainful employment”. To begin with, I very much doubt that prospective employers would have even known of the manner in which the claimant was treated by the defendant unless he decided to disclose the entire saga on his own accord when applying for other jobs. All the claimant says is that he has been unable to secure a job despite applying for over 300 jobs from 2020 to 2023 and being invited for over 25 calls and interviews. In fact, he conceded during cross-examination that the circumstances surrounding him leaving the defendant did not feature in any of these job applications:

Moreover, the claimant himself acknowledges that the COVID-19 pandemic had made it hard for foreign nationals such as himself to get sponsorship from their employers, and that this had caused the job market to be “notoriously difficult to navigate” at the material time. This appears to be the main reason, from the claimant’s point of view, as to why he had difficulty finding employment. As the claimant explained during re-examination:

This should pour cold water on any contention that the claimant had difficulty finding employment because of any stigma which the defendant’s breach may have caused him to suffer. Clearly, the defendant’s breach of contract was not the dominant or effective cause of his failure to secure any gainful employment after the defendant terminated his employment.

It would appear that the claimant’s real complaint with regards to his alleged loss of future earnings can be found in his AEIC:

By claiming the salary that he would have earned had he remained in the defendant’s employ, the claimant’s complaint appears to centre around what he believes was the premature termination of his employment – as he is in substance seeking to claim losses sustained as a result of that supposed premature termination. However, as the defendant rightly pointed out, there is no right to specific performance of an employment contract or to require an employer to continue the employment relationship indefinitely (see Wee Kim San at [39] and Ariokasamy Joseph Clement Louis v Singapore Airlines Ltd [2002] 2 SLR(R) 924 at [50]). There was also nothing in the Employment Agreement which obliged the defendant to provide the claimant with any specific percentage of salary increase every year, as the claimant himself acknowledges. Hence, there is no basis for the claimant to assume that he would have continued to be employed by the defendant and receive a 10% salary increment every year until the present day were it not for the defendant’s breaches. Given that the claimant was given more than the requisite one month’s notice under the Employment Agreement prior to his employment being terminated, and paid his salary during that notice period (see at [53]–[54] above), the claimant’s claim for loss of future earnings premised on those assumptions must necessarily fail.

Damages for pain and suffering and loss of amenities caused by MDD

The claimant was diagnosed with MDD on 27 May 2019. He says that his MDD was caused by the defendant’s conduct in 2018 and 2019. According to him, this has damaged his employment prospects and “wrecked his marriage and family life”. In this regard, the claimant lists, inter alia, the following particulars to illustrate how the defendant’s conduct had affected him:

Wee Kim San was a case in which the CA decided that the appellant’s claim for damages for breaches of the implied term of mutual trust and confidence ought to be struck out as the heads of damages sought to be recovered were legally unsustainable. The CA had suggested (at [26]) that a court can award damages for financial loss flowing from psychiatric or other illness brought about by the employer’s breach of the implied term (citing Eastwood at [29]) (see [249] above). However, as with damages for any other head of loss, the rules on causation and remoteness will apply.

To the extent that the claimant is saying the psychiatric harm he suffered as a result of the defendant’s breach damaged his employment prospects, this argument can be dismissed fairly easily. As explained above in relation to the claim for continuing financial loss (at [248]–[256]), the link between any conduct on the part of the defendant and the claimant’s inability to secure employment after his termination is exceedingly tenuous. It is more likely than not that the claimant could not secure a job because of other factors.

Furthermore, it is doubtful that the defendant’s breach was the dominant or effective cause of the claimant’s MDD in the first place. The claimant first consulted a psychiatrist, Dr Adrian Wang (“Dr Wang”), on 27 May 2019 after his wife encouraged him to upon noticing his symptoms. In response to a request from the claimant’s solicitors for a medical report in relation to his termination from employment, Dr Wang prepared a report which purported to document his observations of the claimant at the material time:

It can be seen that Dr Wang’s report was vague as to what constituted the “work-related” stressors which contributed to the claimant’s MDD. This was also noted by Dr Jacob Rajesh (“Dr Rajesh”), the common expert witness appointed by consent of the parties pursuant to HC/ORC 4436/2024, in his report:

Obviously, the specific factors which the claimant had identified as having contributed to his MDD to Dr Rajesh carry less weight because Dr Rajesh had interviewed the claimant for the purpose of him testifying in these proceedings on the claimant’s psychiatric condition. In contrast, Dr Wang’s report was ostensibly based on his own clinical notes, which would have been contemporaneous documentation of what the claimant told him at the material time. In addition, the claimant’s own testimony indicates that he was likely not very specific with Dr Wang about the kind of “work pressure” he was facing:

It would therefore appear that, based on the claimant’s own recollection of what he reported to Dr Wang during his first consultation, it was the high pressure caused by the nature of his work while being employed by the defendant which he felt was the main (or a dominant) contributor to his MDD.

Even if one takes what the claimant told Dr Rajesh at face value, it is evident that his MDD was not caused by the defendant’s conduct of pre-judging him and placing him on a pre-ordained PIP. The factors which were listed by the claimant, being work pressure and scrutiny from his bosses, getting a lower bonus and being placed on the PIP, are not acts of the defendant which constitute breaches of the Employment Agreement. It bears reiterating once again that it is not the decision to place the claimant on the PIP per se that breached the implied term of mutual trust and confidence. Rather, it was the manner in which the defendant misled the claimant into believing that he was being given a genuine opportunity to improve which did.

In this regard, it is the claimant’s own case that he only found out he was pre-judged and misled after his employment was terminated. Indeed, it has always been his overarching narrative that the PIP was a “cloak” and “charade” to mask the defendant’s real intention of terminating his employment, and that he only came to this realisation after commencing this suit. This much is clear from the claimant’s reply closing submissions:

If the conduct of the defendant which forms the breach (ie, the pre-judging of the claimant and the fact that the PIP had a pre-ordained outcome) only came to light after the material time (and during the course of these proceedings), then, logically speaking, it cannot be the case that the MDD which the claimant was diagnosed with at that time was caused by such conduct. Indeed, the claimant would not have had any sight of the e-mails exchanged behind his back which pointed to the PIP being a sham.

I also view with a pinch of salt the claimant’s averment in his AEIC that, when the PIP ended on 3 May 2019, he never received any communication of an outcome from Ms Seabury and was “left in limbo” as to the status of his employment and that this “took a drastic toll on [his] mental health”. The claimant cannot blow hot and cold by alleging that he was led to believe the PIP had successfully been closed out and saying that he was left in a limbo (which presumes that he did not believe the PIP was successfully closed out). Indeed, the documentary evidence (ie, the claimant’s WhatsApp conversation with Mr Farooq) indicates that, at least as at 10 July 2019, the claimant subjectively believed that he had successfully completed the PIP (although it had not been closed out “formally”) (see [225] above).

As such, I fail to see how any causal link can be drawn between the defendant’s breach and the losses flowing from the claimant’s psychiatric condition (much less say that the defendant’s breach was the dominant or effective cause of such losses).

Furthermore, it is clear that such losses are too remote.

In Out of the Box Pte Ltd v Wanin Industries Pte Ltd [2013] 2 SLR 363 (“Out of the Box”) (at [17]–[18]), the CA affirmed (relying on Hadley v Baxendale (1854) 9 Exch 341 (at 354) and Victoria Laundry (Windsor) Ld v Newman Industries Ld; Coulson & Co Ltd (Third Parties) [1949] 2 KB 528 at 539–540) that one of the key elements for determining if a contract breaker should be liable for losses is the contract breaker’s knowledge. This includes imputed knowledge (ie, knowledge which a reasonable person in the contract breaker’s situation is taken to know or, in other words, reasonably foreseeable facts) as well as actual knowledge of “special or extraordinary facts” (even if they may not have been reasonably foreseeable).

This was encapsulated in the following analytical framework laid down by the CA for questions of remoteness of damage (Out of the Box at [47]):

In the specific context of a breach of the implied term of mutual trust and confidence, the defendant has referred to Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 (“Yapp”), which lays down guidance on applying the principles of remoteness in cases where psychiatric harm as a result of a breach of the implied term has been alleged.

In Yapp, the claimant was withdrawn from his post as High Commissioner and suspended pending an investigation into allegations of misconduct. He commenced an action against the British Foreign and Commonwealth Office, alleging that the stress which resulted from the manner of his withdrawal and the way in which the disciplinary process was conducted, as well as its outcome, caused his depressive illness. It was found that the withdrawal of the claimant from his post was unfair and constituted both a breach of contract (specifically, of the implied term of mutual trust and confidence) as well as a breach of the duty of care in tort (see Yapp at [3] and [67]).

On the issue of remoteness, the English Court of Appeal in Yapp laid down the following principles which I gratefully adopt:

In my view, these principles fit neatly into the analytical framework set out in Out of the Box (see [271] above). In particular, they can be used to answer the question set out at (b) of that framework (ie, whether a pre-existing vulnerability on the part of the employee and/or the egregiousness of the employer’s conduct would have a bearing on whether psychiatric harm would have been within the reasonable contemplation of the parties had they considered it at the time of the contract).

While the EWCA in Yapp acknowledged that the claimant’s withdrawal from his post was a major setback to his career which was bound to cause him distress and anger, it was not so egregious as to render it foreseeable that psychiatric injury would result (see [127]). There was also an absence of any sign of special vulnerability on the part of the claimant.

The claimant would be hard pressed to show that he satisfies the test for remoteness in the present case. Indeed, it is telling that, in his reply closing submissions, the claimant asserts but does not explain how the defendant’s conduct fulfils the requirements laid down in Yapp. It is plain to me that the requirements are not fulfilled.

To begin with, there are no indications that the claimant had some pre-existing problem or vulnerability of which the defendant should have been aware. In fact, it is the claimant’s case that, because of his limited physical interactions with the defendant’s officers and/or employees, the defendant’s witnesses in this case could not have observed his symptoms. The claimant himself explained during re-examination why he did not see any reason to bring up his MDD to his superiors or the defendant’s HR department:

Given that the claimant himself had consciously chosen to suppress outward signs of his MDD, one cannot reasonably expect his superiors to realise that he was suffering from such a condition. The defendant would therefore have been entitled to presume that the claimant was an apparently robust employee who would not develop a depressive illness even from a very serious setback at work.

Additionally, the conduct of the defendant in the present case, while obviously leaving much to be desired, falls short of the level of conduct that was so devastating that it would have been foreseeable that even a person of ordinary robustness might develop a depressive illness as a result. In Yapp (at [127]), the EWCA referred to the “gross and arbitrary injustice” of the kind in Eastwood as an example of such conduct which may render it foreseeable that even an ordinary person with no known pre-existing vulnerabilities might develop a depressive illness. Eastwood, in turn, was a case in which the claimant employees were subject to a four-month “campaign to demoralise and undermine” them (see Eastwood at [17]–[20]). They were accused of sexual harassment after other employees were encouraged to formulate complaints against them, publicly suspended from work, and then put through a disciplinary process in which facts were assumed against them even though no witnesses were called to support them and some witnesses withdrew what they previously said.

In contrast, the claimant in the present case was put through a PIP process which, to all outward appearances, was a genuine opportunity for him to improve when, in actuality, it was not. As highlighted above (at [265]–[266]), the conduct evidencing the defendant’s breach was hidden from plain sight. The deception which the claimant was subject to was insidious, not apparent. The corollary of this is that this could not have been conduct which the defendant would have foreseen to cause the claimant any psychiatric harm. In fact, it is arguable that the defendant could not even have foreseen that its pre-judging of the claimant would come to light. Even if it was made apparent to the claimant at the material time that the defendant was trying to pull wool over his eyes, the defendant’s conduct would not have risen to the level of “gross and arbitrary injustice” which the claimant employees in Eastwood faced. Being placed on a pre-ordained PIP is different from being subject to a public disciplinary process built on a concerted campaign to incriminate and oust them.

Accordingly, even if the claimant could prove a causal link between the defendant’s breach and the losses flowing from his MDD, such losses would still be too remote to establish a claim in damages.

Injury to the claimant’s reputation, pride and dignity, and humiliation, distress, insult and/or pain

The gist of the claimant’s claim for damages under this head of loss is that his “male pride” has been shattered. He says that he was “unable to come to terms with his inability to perform his intrinsic male need of providing for the family”. In his closing submissions, the claimant details the setbacks he has suffered in searching for employment after leaving the defendant and how that had caused him to go from being the main provider of the family expenses to having to rely on his wife to maintain such expenses. According to him, this shift in earning disparity shifted the power dynamics between the couple and strained their relationship to the point of near-separation. Apparently, his family was “in crisis” because his wife became the “de facto ‘man’ of the household on the financial front” and he “went from being the provider to being provided for”. The claimant ultimately says that the defendant “deprived him from the stability that comes with a loving and an emotionally healthy marriage”.

Needless to say, I fail to understand how there is a causal link between the defendant’s breach and these losses (even if one assumes that they are made out). It would appear that, on the claimant’s own case, much of his loss of pride stemmed from his inability to secure a job which provided him with the same level of income that his employment with the defendant did. As explained above (at [252]–[254]), the defendant’s breach had little to do with the claimant’s inability to secure employment after his termination. Accordingly, the claimant’s attempt at claiming damages under this head of loss can be quite easily dismissed.

Aggravated and punitive damages

It goes without saying that, having failed to even prove that he is entitled to general compensatory damages, there is no basis to award aggravated and/or punitive damages to the claimant.

Award of nominal damages

Be that as it may, it is well established in law that the innocent party is always entitled to claim damages as of right for loss resulting from a breach of contract (Youprint Productions Pte Ltd v Mak Sook Ling [2023] 3 SLR 1130 (“Youprint Productions”) at [5], citing RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR(R) 413 at [40] and Denka Advantech Pte Ltd v Seraya Energy Pte Ltd [2021] 1 SLR 631 at [60]). Concomitantly, nominal damages may be awarded if a claimant fails to prove either the fact of damage or the quantum of his loss (Youprint Productions at [5], citing Biofuel Industries Pte Ltd v V8 Environmental Pte Ltd [2018] 2 SLR 199 at [40]). This reflects that the loss suffered by the claimant is only notional, or “in name” (The Law of Contract in Singapore vol 2 (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2nd Ed, 2022) at [para 20.073]). This was also explained in further detail in Butterworths Common Law Series: The Law of Damages (Andrew Tettenborn gen ed) (LexisNexis, 2nd Ed, 2010) (“The Law of Damages”) at [paras 2.05–2.06] (cited in Youprint Productions at [6]):

The claimant has succeeded in proving that the defendant had breached the Employment Agreement. I thus award him a sum of $1,000 in nominal damages.

Conclusion

In conclusion, I find that the defendant has breached the implied term of mutual trust and confidence in the Employment Agreement. However, the claimant has failed to prove the losses flowing from his breach and, accordingly, I ultimately award only a sum of $1,000 in nominal damages to him.

Objectively, it is easy to see how and why the claimant’s self-righteous and unyielding behaviour contributed to the hostility in an already volatile environment between the services sales and services delivery teams. He was, to a large extent, the author of his own misfortunes that culminated in the termination of his employment. However, the defendant had an easy means of dealing with the claimant. All it needed to do was to invoke the termination provision expressly provided by the Employment Agreement to terminate his employment. Yet, this was not the remedy that the defendant immediately availed itself to. It imposed a farce of the PIP on the claimant.

The outcome of this case may well be a pyrrhic victory for the claimant, but I hope that it will provide him with some vindication and allow him to move on with his life. Having said that, the facts of this case demonstrate precisely why the implied term of mutual trust and confidence is needed to sustain an employment relationship. It is not uncommon to hear of employees dedicating themselves fully to their jobs, sometimes at the expense of their personal lives and family commitments. Lord Hoffmann’s description of the employment relationship as being one of the most important things in a person’s life and as a source of a person’s identity and self-esteem in Johnson, echoed more than 20 years ago, rings truer than ever. The term of mutual trust and confidence, being a product of the English common law, has been implied and applied by courts in the UK for decades. Barring Australia, I know of no other major common law jurisdiction that does not recognise this implied term. There is nothing irreconcilable between the right to bring an employment relationship to an end and the duty not to behave in an intolerable or wholly unacceptable way. That is the cornerstone of any functional employment relationship.