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Did BMP wrongfully terminate Song's employment agreement? - Coggle…
Did BMP wrongfully terminate Song's employment agreement?
Element 1: Was there a valid notification or a valid attempt to notify by Song of his reasonable excuse to BMP?
Wong J at [31] establishes these two elements
Element 1a: There must have been a
valid
act of informing or attempt to inform.
at [32], Song's act of asking the monks about the possibility of contacting BMP but not pursuing the matter on being told that all communication had been cut off ("inquiry to the monks") was seen as "seeking an opinion on whether an action is possible".
[FACT] Can the inquiry to the monks be seen as an attempt to inform instead of seeking an opinion on whether informing is possible?
[LEGAL] (A) Can a special case be made such that Song's inquiry to the monks is seen as a sufficient attempt to inform, given that his priorities were focused on ensuring her welfare and personally caring for his wife who was facing life-threatening asthma?
Seeking an opinion on whether an action is possible is not the same as attempting the action.
why?
It would set an unwise precedent.
[LEGAL] Are there policy reasons why this is the case?
[LEGAL] Is seeking an opinion on whether informing is possible =/= attempting to inform?
Element 1b: The attempt to inform must be done within the stipulated 48 hours (i.e. before the Notification Deadline).
[LEGAL] (A) Can an extension of time be made when the excuse for the employee’s absence, ie, the unprecedented storm, is also the reason that the employee was unable to communicate the excuse?
Not seen from a plain reading of 13(2). Scrap this.
exceptions?
at 36, Woo J's special exceptions: "cases in which the employee cannot carry out this obligation, for example, if the employee is in a coma or has been kidnapped and has no one to inform the employer accordingly. In such cases, the employee would not even be able to attempt to inform his employer. "
at 38, Wong J also takes the narrow interpretation,
where these cases must involve the employee being incapacitated.
if the argument is that Song could have done more than his inquiry to the monks, then the incapacitation could not be him being stuck on the island. the incapacitation would be him being preoccupied with his ailing wife.
[LEGAL] argue that Song aiding his sick wife was a form of "legal" incapacitation that prevented him from pursuing a further attempt to inform.
[LEGAL] argue for the broad interpretation, where Woo J's examples are non-exhaustive, and the main point is that "the employee cannot carry out this obligation."
Wong J argues this is obiter (thus need not be followed). Additionally Woo J says these cases "may or may not call for different considerations." Wong J argues for the may not.
[LEGAL] Though Woo J's comments are obiter, his special exceptions MAY and SHOULD call for different considerations in our present case.
from a plain reading of s13(2), the indication is that the contract is deemed to be broken after the employee's absence for more than 2 days WITHOUT informing or attempting to inform the excuse... NO PLAIN INDICATION THAT THE NOTIFICATION MUST BE WITHIN THOSE TWO DAYS.
rule also taken from Woo J interpretation at [37]
[LEGAL] Malaysian cases support a different rule that an employee may notify as soon as possible or within a reasonable time. Look at the Malaysian cases referred to by Woo J and see how you can skew his reasoning in your favour.
at 40, Song's unsuccessful call to Maniam was a valid attempt to notify, and him conveying a message to Maniam was also a valid notification. However, since this was done after deadline, they did not satisfy 13(2) requirements.
Element 2: Does a breach of s13(2) of the Employment Act amount to a repudiatory breach?
at 41, Woo J says the onus is on the employee to notify and not the employer
this is written in the statute itself. difficult to argue this.
at 49, "although Dr Song spoke to Mrs Maniam about the location of the retreat, that does not compel BMP to infer that Dr Song was delayed by the storm."
s13(2) states that the contract "is deemed" to be broken. the employee is considered to break his contract if he satisfies 13(2).
Woo J at 43, "deeming provision (allows) the employee to deem the breach a repudiation".
[LEGAL] understand how a deeming provision works and the reasoning of how then a breach of contract under this is a repudiatory breach.
supported by
the fact that absenteeism and misconduct are dealt with separately. in s14, misconduct that justifies a dismissal (i.e. repudiatory breach) has avenues for an employee to appeal against it. in s13, absenteeism leads to the contract immediately deemed to be broken.
uday mehra confirms that failure to report for work is a repudiatory breach.
[LEGAL] LOOK AT WHAT UDAY MEHRA SAYS!
at [193], the plaintiff absented himself from his primary place of work under the June 2014 Contract after 10 April 2015 without the approval of the LCA Group and without a contractual defence. He was therefore in breach of his contract. This breach amounts to misconduct. Absenting oneself in this way from one’s primary place of work is conduct which destroys the relationship of trust and confidence which underlies a contract between employer and employee and which renders the employment relationship untenable.
Uday Mehra seems to conflate absenteeism with misconduct. This goes against Woo J in Arokiasamy. If absenteeism amounts to a misconduct, then the plaintiff should have avenues to argue against the termination, which was not given to Song.
interpretation act s9A(4)(a): "the desirability of persons being able to rely on the text of the provision." by saying that the contract is deemed to be broken, the employer is able to rely on this provision to lawfully terminate the contract.
but also bring in Interpretation