Troubles in the workplace often arise when employees clash with their employers. These conflicts between employees and employers tend to be rooted in legal issues, such as a breach of the employment contract or the employee feeling that he has been wrongfully terminated by his employer.
Lawyers Tan Cheow Hung (Director, Beacon Law Corporation) and PE Ashokan (Partner, Withers KhattarWong) and NTUC Asst Secretary-General Patrick Tay shared advice for employed professionals during ‘Legal for Non-Legal Professionals,’ an event co-organized by AsiaLawNetwork, Singapore Corporate Counsel Association, NTUC and the Singapore Human Resources Institute.
Questions Asked (read on to see answers)
- Termination of Employment
- What constitutes unlawful termination?
- What can I do if my employer suddenly dismisses me without giving sufficient notice?
- If my employment is suddenly terminated today and I was not given proper notice, how soon should I file my claim against my employer?
- Can I take legal action against an employer who threatens to terminate my employment if I don’t resign on my own accord?
- Employment Rights & Obligations
- What do I have to consider if I want to take on another job other than my current or main employment?
- What are some common rights that professionals in Singapore are not aware when it comes to their employment?
- How can we determine whether the non-compete clauses in our employment contract are reasonable or not?
- If I am pregnant and looking for employment, is it acceptable for prospective employers to only employ me on the condition that they will not grant me a maternity leave?
- What is considered as employment under the Career Support Programme (CSP)?
- Intellectual Property Rights
- Does my employer own the intellectual property rights to something I’ve developed on the job? If I am still employed and have developed something else outside of my job, do I own the intellectual property rights to that?
- If I take an idea that has been rejected by my employer and develop it in my own time, do the intellectual property rights of what I have developed belong to me or to my employer?
Termination of Employment
What constitutes unlawful termination?
Ashokan: Instances of unlawful termination include the employer dismissing you because he doesn’t like you for whatever reason or if he terminates you without valid reason and/or just because he prefers somebody else.
When we say unfair termination, we’re talking about the conduct of the employer and not the conduct of the employee. There are also cases where the employee misbehaves. For instance, he often comes to work late or perhaps he’s moonlighting and the quality of his work suffers as a result. All these are grounds which would entitle the employer to terminate the employee.
Your employment contract usually has a termination clause. In Singapore, there will usually be a notice period for termination stated in the employment contract unless it’s for a fixed term employment. For example, if you have a fixed term employment for two years and there’s no termination clause, the employer is then bound to pay you for that two years. Even if he decides to terminate you early, he has to pay you for the two years.
If you think that the grounds for your termination are not justified, you can challenge them. When employers dismiss someone with cause, they have to prove that the employee has misconducted. But if they have prepared an employment contract which has a termination clause, it’s easier for them to just rely on the termination clause and give their employee the requisite notice.
What can I do if my employer suddenly dismisses me without giving me sufficient notice?
Ashokan: The recourse for the employee is to claim the payment for his stated notice period from his employer. For instance, if the employment contract says that the employer is required to give three months’ notice for the termination of the contract, the employee can then claim the payment for his three months if his employer gives him short notice about his termination.
You have to engage a lawyer to make the claim. Usually, the amount for three months’ notice won’t be very much unless you’re holding a very high position.
If you fall within the Employment Act, you can ask the Ministry of Manpower for help. If you don’t, you’d need to seek legal advice on what to do.
Cheow Hung: What you need to do is to make sure that you leave a paper trail of some sort so there’s documentary evidence that you were terminated without cause.
For instance, you can send your employer an email telling him that while you will abide to his request to leave the company today, you will still reserve your rights and seek legal advice. Or at least send him a WhatsApp message.
With such documentary evidence, your employer can’t later accuse you of being the one who abruptly left and didn’t come to work afterwards.
If my employment is suddenly terminated today and I was not given proper notice, how soon should I file my claim against my employer?
Ashokan: If your employer doesn’t give you proper notice, there’s a breach of contract. While the time bar for breach of contract in Singapore is six years, there’s no prescribed time within which you need to make the claim.
There could be arbitration clauses in your employment contract. Then you are obliged to go for arbitration instead of issuing a writ of summons and going to court.
Cheow Hung: If you fall under the Employment Act, you have to also consider the limit with regards to the amount of the claims. If you’re owed salary and you haven’t claimed it for months until it accumulates to above $20,000, then you can’t claim your salary. In addition, there is a time bar of six months for mediation.
Can I take legal action against an employer who threatens to terminate my employment if I don’t resign on my own accord?
Ashokan: If your employer has given you the proper notice to terminate your employment, I don’t think you can make any valid claim against your employer.
Even if you are pressured to resign, you still have to serve the notice period and your employer has to pay you for the notice period. If your employer doesn’t want you to stick around in the company, they may just pay you the amount for the notice period and ask you to go.
So long as your employer complies with their notice period or pays you in lieu of the notice period, I don’t think you can make a claim because your employer has complied with the employment contract.
Cheow Hung: We need to recognize that employment is a two-way street. What you see as a threat could actually be perceived as an act of kindness so that your employer would not have no choice but to terminate you.
If he is the one giving you notice, it wouldn’t look good on you when you seek employment elsewhere, so it may be preferable for you to give your employer notice in this instance.
Employment Rights & Obligations
What do I have to consider if I want to take on another job other than my current or main employment?
Ashokan: Before you do so, you must get the blessings of your current employer. Your present employment contract may have a clause stating that you must dedicate all your time to your current employer. But I think in the present day and time, it’s not uncommon for employees to have more than one employer.
Nonetheless, you must disclose your side-employment to your employer or you may be in breach of the employment contract with your employer.
Cheow Hung: If you hold certain positions, you may also owe fiduciary duties to the company that you’re working for. So you should seek legal advice before you take on a side job to avoid any dispute with your employer later on.
Ashokan: If you owe fiduciary duties to one employer, the chances of him allowing you to work for another employer is very low.
Fiduciary duties mean that you deal with money and the financial aspects of the company, so you have confidential information about the company. Of course, if you’re lower down the ladder, I don’t think you’ll be owing any fiduciary duties to your employers.
What are some common rights that professionals in Singapore are not aware when it comes to their employment?
Cheow Hung: Many young professionals don’t realize that they are covered under the Employment Act after the amendments in 2014, provided that they don’t earn more than $4,500.
If they earn more than $4,500, they are not covered under the act but the law will protect them in other ways.
How can we determine whether the non-compete clauses in our employment contract are reasonable or not?
Ashokan: What’s reasonable to you may not be reasonable to the employer–employers and employees grapple with these issues all the time. It differs from industry to industry and the kind of confidentiality that you’re trying to preserve.
There have been cases where the employer tries to restrain their employee from engaging in a particular trade anywhere in the world and the court found it unreasonable. Because the non-compete clause must be reasonable in terms of duration, geographical locations and scope.
There’s always a competing interest between employees and employers. Employees need to find a job while employers have to preserve their secrets and their business. Though it’s against public policy to have a restraint of trade clause, the court may allow that provided that the clause satisfies the requirements of reasonableness.
I can’t give you the exact time period for which a court would find a particular restraint of trade clause reasonable because it depends on the facts of each case. If the restraint of trade period is five years, the court may find it unreasonable because it is too long. But if the time period is eight months or one year, it satisfies the requirements of reasonableness.
Some employers may decide to compensate you in your employment contract if they want to restrain you from engaging in a trade for a time period that may not withstand the scrutiny of reasonableness. For instance, they may keep you from engaging in any activity similar to what you have done in their company for three years by paying you for that three years.
Cheow Hung: Some employers would have a deferred bonus clause. If the employee decides to join a competitor, they will then have to forfeit their bonus.
As an employer, you need to consider what you’re trying to do when drafting that non-compete clause. I think that if you’re guided by the principle to protect your interests and not by any malice to ensure that your former employee cannot find work, you would be able to draft a clause that is reasonable.
Nonetheless, you should always seek legal advice. As Mr. Ashokan says, there have been very varied cases regarding whether the time period for a non-compete clause is reasonable or not. For instance, the court held that two years was reasonable for a professional in the factoring industry, yet six months was considered to be unreasonable in another case.
On the whole, the reasonableness of a non-compete clause depends on the industry, the position of the employee, what information he has and how crucial he is to the organization.
If I am pregnant and looking for employment, is it acceptable for prospective employers to only employ me on the condition that they will not grant me a maternity leave?
Patrick: Taking a maternity leave is in a way a statutory right.
For Singaporeans, you have both the Employment Act and Child Development Co-savings Act which prescribes certain benefits you are entitled to. There’s no way for your boss to contract you out of your statutory right to take a maternity leave after you have met the necessary number of days that you have been with the company, which would be different from if you have agreed to start your employment after your pregnancy.
What is considered as employment under the Career Support Programme (CSP)?
Patrick: I don’t administer the scheme, but to my knowledge, you must be in some form of formal employment. Even working part-time is considered as employment. There must be some indication that you are formally employed, for instance if you have employment income and CPF contribution.
If you work freelance or you’re only doing odd jobs, I think that’s to be evaluated on a case by case basis. Otherwise, there must be no formal employment of sorts. If you’re doing odd jobs and you are still actively seeking for full time employment, I think that may justify you to be considered unemployed and you can make your case.
The objective of the scheme is to help you to get into gainful employment. If you manage to find an employer who’s willing to tap on that scheme and engage you on a full-time basis, I don’t see any reason why your application would be rejected unless you’re already making a sizeable income and you’re working actively (e.g. you’re working five days a week).
You can try to make a case. If you don’t qualify for the scheme, you can see a member of parliament who might be able to write an appeal for you.
Intellectual Property Rights
Does my employer own the intellectual property rights to something I’ve developed on the job? If I am still employed and have developed something else outside of my job, do I own the intellectual property rights to that?
Ashokan: You are unlikely to face this problem because your employer would likely have a clause in the employment contract that governs this. Since your employer is investing so much money and time in you to develop some intellectual property, he’s going to ensure that the intellectual property rights belong to him or to the company.
If you’re moonlighting and come up with some discovery, the rights to that intellectual property belongs to you. It has nothing to do with your employer, although you have worked for this employer during that time.
Cheow Hung: I think the potential grey area is when you have used the company’s resources to work on something else instead of what you’re supposed to be working on.
The intellectual property rights are still yours, but you could be in breach of other provisions of the employment contract. You’ve got to be careful there as you could be sued by your current employer.
Ashokan: Intellectual property belongs to the person who comes up with the idea and realizes it. It does not belong to the person from whom you’ve taken the resources. While you may have to pay compensation to your employer if you’ve used some of his company’s resources, the rights to that intellectual property will belong to you.
If I take an idea that has been rejected by my employer and develop it in my own time, do the intellectual property rights of what I have developed belong to me or to my employer?
Ashokan: Go back to your employment contract. If there’s a contractual provision which says that the intellectual property rights belong to the employer, then it remains with the employer. Just because it’s rejected doesn’t mean that they lose the rights.
Unless you have developed it further and end up with something totally different and new, then you may have a claim to the intellectual property right for that.
This is a grey area. If your employment contract doesn’t cover this, you may have to go to court for litigation.
Cheow Hung: I think it’s a question of degree. Whether the idea was half-baked before and fully-baked after the employee has developed it is a question of fact for the court to find.
Ashokan: If you have talked to your employer regarding your plan to develop the rejected idea on your own, there would be no issue. In real life, employees may be worried that their employer may not give them the permission to go ahead. When their employer subsequently finds out that the employee has been developing the idea in secret, then it becomes an issue especially if what the employee has developed makes a lot of money.
If you tell your employer that you would like to improve on the rejected idea and suggest sharing the rights to your findings, then your employer may be open to your proposal.
Cheow Hung: Another thing to note is that if you are developing the idea while still being employed, there could be other issues vis a vis your employment contract. If you have used the company’s resources to develop the idea, your employer may make other claims against you even if the court later rules that you own the intellectual property rights.
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