If an employee engages in misconduct at work, employers may be tempted to dismiss them based on apparent evidence without further ado. However, dismissal for misconduct without an independent workplace investigation and due inquiry is against the Employment Act and can result in the employee filing for damages. Below, we review in detail what due inquiry entails, highlight common types of misconduct, and outline a formal process for conducting a workplace investigation in Singapore.
Key Takeways
- Dismissing an employee for misconduct without conducting a due inquiry can be a breach of the Employment Act in Singapore.
- Common examples of misconduct include theft, dishonesty, disorderly or immoral behaviour, or insubordination.
- No matter how evident the misconduct is, employers must have a clear process in place for an independent workplace investigation before dismissing an employee.
- Engaging external corporate employment lawyers is always advisable for high-profile cases of misconduct to ensure an unbiased inquiry.
What Is a “Due Inquiry” Under the Employment Act in Singapore?
When an employer considers dismissing an employee for misconduct, the Employment Act requires implementing a due inquiry. While the Employment Act in Singapore does not define detailed requirements for due inquiry, more explanations can be found in the Tripartite Agreement on the website of the Ministry of Manpower (MOM).
The Tripartite Agreement provides a general guide for due inquiry, which includes:
- Notifying the employee of their alleged misconduct,
- Providing the employee with a reasonable opportunity to present their case,
- Appointing a responsible person to hear the inquiry and ensure an unbiased review.
Importance of Independent Workplace Investigations
Each of the guidelines outlined by MOM is critical for satisfying the requirements of the Employment Act. A failure to conduct independent workplace investigations according to MOM guidelines can lead to the risk of an employee filing for damages even in the presence of actual misconduct.
For example, in the landmark case of Long Kim Wing v LTX Credence Singapore, the company dismissed the employee for misconduct related to forgery, deceit, and unauthorised payment to another employee. After reviewing the employee’s complaint, the court admitted the misconduct but held that the employer’s investigation fell short of “due inquiry” and awarded partial damages to the employee. The case serves as a fair warning that no matter how strong the evidence or allegations are, employers need a clearly defined, well-structured, and impartial process in place to ensure compliance.
Common Workplace Misconduct Requiring Investigation
In the Tripartite Guidelines, the MOM provides a general description of misconduct as a failure to fulfil the conditions of employment, outlined in the contract of service.
While this is rather a broad definition, which can include multiple scenarios, the MOM further illustrates it with the following examples:
- Theft: These cases can include any instances of unauthorised possession of the employer’s property, for example, taking the company’s computer equipment without permission.
- Dishonesty: Dishonest behaviour at work may include deceit, falsification of records, fraud, and similar instances.
- Disorderly Conduct: This includes any immoral behaviour at work that goes against accepted ethical norms, or actions that bring the organisation into disrepute, for example, harassment or using inappropriate language.
- Insubordination: The law defines insubordination as wilful disobedience of a reasonable and lawful command from a superior, for example, a failure or refusal to attend meetings.
Process of Due Inquiry
According to the MOM Guidelines and existing court practice in Singapore, employers need to have a set process to ensure that they fulfil the requirements for “due inquiry.”
While the exact process is always context-specific and depends on the company, in most cases it should include the following main steps:
Recording the Incident
The employer needs to document the case of misconduct, capturing all the essential details. In addition to ensuring a formal process, this record will also serve as proof that the due inquiry was initiated.
Appointing a Responsible Person to Hear the Inquiry
The company needs to appoint a person responsible for conducting the due inquiry. Depending on the situation, this person can come from HR, the legal team, or management. In serious cases, appointing an external investigator or hiring a law firm can be advisable to ensure an independent workplace investigation.
Notifying the Employee
According to the MOM Guidelines, the employer should notify the employee of their alleged misconduct. Similar to other communications, it is advisable to make this notification in writing with confirmation of receipt.
Providing an Employee with an Opportunity to Present Their Case
The requirements for due inquiry include giving an employee alleged of misconduct a chance to explain their version of the events. Observing this step is important to avoid allegations of a biased process and to ensure that all procedural requirements are met.
Suspending the Employee if Required
During the period of the investigation, the employer has the right to suspend the employee from work for no more than 1 week. In case the inquiry takes longer, the employer needs to seek approval from the Commissioner for Labour. During the suspension period, the employer also has to pay the employee at least half their normal salary.
Documenting the Process and the Evidence
It is always recommended to keep a written record of the process of investigation. If an employee claims wrongful dismissal and files for damages, the employer can use the written record of the independent workplace investigation to prove that a due inquiry was properly conducted.
When Lawyers Need to Step In
Engaging a lawyer in workplace investigations in Singapore is not uncommon, especially when the allegations involve senior management. However, in some cases, the legal team is brought in only when the employee makes a counterclaim or raises allegations of wrongful dismissal.
It is always advisable to engage legal counsel early to ensure that all requirements for a due inquiry are met. An experienced corporate employment lawyer can help the company comply with the legal requirements during the independent workplace investigation and effectively address any gaps in the process.
How IRB Law Can Support Workplace Investigation
At IRB Law, our corporate employment lawyers have extensive experience assisting employers in ensuring compliance with the Employment Act and other statutes governing employment relationships.
Our legal team can provide comprehensive assistance in conducting workplace investigations in Singapore at any stage through:
- Developing internal policies for due inquiry to ensure compliance,
- Revising employment agreements to address employee misconduct,
- Assessing if the incident qualifies as misconduct,
- Ensuring the employee is properly notified of the incident,
- Establishing a formal process and maintaining documentation,
- Conducting an independent workplace investigation,
- Responding to court claims for wrongful dismissal.
Summary
Employer misconduct, including theft, dishonesty, disorderly behaviour, as well as insubordination, can be the grounds for dismissal under the Employment Act in Singapore. At the same time, the law obliges employers to conduct a due inquiry before dismissing their employee.
According to MOM Guidelines, a due inquiry should include informing the employee of their alleged misconduct, giving them an opportunity to present their case, and appointing a responsible person to hear the inquiry without bias. For more information on ensuring independent workplace investigations for misconduct, please don’t hesitate to contact IRB Law corporate employment lawyers in Singapore for a free initial consultation.
FAQs
What is viewed as employee misconduct in Singapore?
The MOM Guidelines describe misconduct as a failure to fulfil the conditions of employment in the contract of service. Examples of misconduct include theft, dishonesty, disorderly or immoral behaviour at work, and cases of insubordination.
What is a wrongful dismissal for misconduct?
According to the Employment Act, employers dismissing their employees for misconduct are obliged to conduct a due inquiry. If the employer dismisses their employee on the grounds of alleged misconduct without due inquiry or without just cause, the employee can lodge a claim and seek remedies.
How to terminate an employee for misconduct?
Before terminating an employee for misconduct, the Employment Act of Singapore requires employers to conduct a due inquiry. A due inquiry should include notifying the employee of their alleged misconduct, giving them the opportunity to provide explanations, and appointing an impartial person responsible for hearing the inquiry.
