This article was written by Labour MP and NTUC Assistant Secretary-General Patrick Tay. It first appeared on Straits Times Opinion. Any extracts should be attributed to the author. 30 May 2020.
You may have heard some of the horror stories.
Out of the blue, an employee receives an email from her employer, informing her that she will be required to work for only two days a week and her salary will be reduced. In this case, neither consultation was sought, nor consent given.
Or how about the employee who has always performed above satisfaction at work – only to be dismissed without notice due to “poor performance”.
In its recent Monetary Policy Statement, the Monetary Authority of Singapore (“MAS”) warned that “the COVID-19 pandemic has led to a severe contraction in economic activity both in Singapore and globally”.
As a result, many businesses have been disrupted – some had to shutter for good, others to fundamentally rethink their business model, and some had to cut labour costs to sustain their businesses.
What does this mean, especially for employees during COVID-19? What are some issues workers should watch out for during such a volatile employment period?
Unfair Dismissals and Reduced Hours
There is a danger that companies going through rough patches use unfair practices to reduce work hours or even to get rid of workers. These are some common practices:
First, in coping with operational costs, employers may resort to adjusting employees’ working hours and salaries.
However, this must be mutually agreed upon between both employer and employee. Taking the example that was cited at the onset, employers should not unilaterally make changes to employment terms and conditions without the employee’s consent.
This is included in the guidelines set out in the Advisory on Salary and Leave arrangements during Circuit Breaker. Any employer that needs to implement such changes during this period should do so only after having it has consulted with the union (if the company is unionised) and/or its employees, sought and obtained their consent. Agreed changes should then be clearly documented and acknowledged by both parties.
Second, another tell-tale sign when employers are trying to get rid of employees, is when employees who are doing the same job are suddenly given poor performance ratings, when they have always been graded well.
Employers cannot dismiss employees without notice for poor performance. If doing so, the onus is also on the employer to provide evidence of the poor performance.
Third, another modus operandi that may be used by employers, is to intentionally exclude an employee from meetings and remove the employee’s responsibilities, materially changing the employee’s original job scope. Often in such instances, the employee often feels isolated and will resign as a result.
Fourth, retrenchments can be disguised.
Under case law and tripartite guidelines, “retrenchments” happen when an employees’ contract of service is terminated by the employer due to redundancy or any reorganisation of the employer’s profession, business, trade or work.
In a bid to prevent companies from looking to retrenchment as the first resort, the Government has rolled out extensive support measures through the Unity, Resilience, Solidarity and Fortitude Budgets.
The Jobs Support Scheme (JSS) pays a substantial portion of workers’ wages for several months, thus helping companies with cash flow, ensuring that they consider retrenching only when other options are exhausted.
Should a company have to retrench workers, retrenchment benefits should be paid in accordance with the employment contract or collective agreement; if there is no such prior agreement, tripartite advisories state that the quantum of retrenchment benefits should range from two weeks to one month’s salary per year of service.
The recent Advisory on Retrenchment Benefits further outlines how companies should provide fair retrenchment benefits to retrenched workers, and on other aspects on ensuring “fair retrenchment”, for example in the selection of employees for retrenchments, early consultation with unions, early and open communication and employment facilitation for employees.
However, I know of workers who have encountered instances where employers in a bid to “cut costs”, take to disguising the retrenchment as a mere “contractual termination” of employment, whereby the employer is only required to give notice and notice pay, to avoid paying the employee a fair retrenchment package. Many times, it comes to light that the very same position had actually been made redundant and that the employee who was given notice had been robbed of what should have been rightfully paid out to him/her, in the form of a retrenchment package.
This is because an employment contract (just like any contract), allows either party (employee or employer) to contractually terminate (‘resign‘ is the commonly used term by employees) the contract by giving the requisite notice as prescribed in the contract and in compliance with the Employment Act.
It is an unfortunate reality that the prolonged period of business closure due to the ongoing pandemic means more companies will be tempted to take this route of disguised retrenchment.
Sadly, some employers get away with it, perhaps because workers are not aware of their rights, or fear to take action. To make it foolproof, some employers even provide notice pay and do not give any reasons for the contractual termination so as not to be challenged, especially in a non-unionised environment.
The question then is this: What more can be done to better protect, assist and support workers, especially our Professionals, Managers and Executives who face contractual termination or disguised retrenchments?
There is undoubtedly greater scope and impetus for concrete action to be taken against employers who fall foul of fair retrenchment practices.
While I submit we can lobby for changes to the Employment Act, perhaps an interim measure such as blacklisting by the Ministry of Manpower and withholding of government funding e.g. JSS, can provide some respite from such a potentially virulent trend of unfair employers who are in fact, able to fork out the retrenchment payment(s).
More than ever, COVID-19 has laid bare these vulnerabilities, especially for certain segments of workers, such as mid-career and older workers including many professionals, managers and executives.
Emerging Workplace Issues
Beyond that, the virus has also created other emerging workplace issues in its wake, which we must carefully consider. For example, with the accelerated adoption and shift to working from home arrangements, the grey areas between the home and the workplace have increasingly overlapped.
In a recent Facebook Live session that I hosted; I took the opportunity to poll participants on their thoughts on working from home. Interestingly, 90 per cent of participants were on Working from Home arrangements, with 61 per cent of them stating that they found themselves to be more productive on these work arrangements.
Beyond sharing tips to ensure productivity at home, another question that was brought to the fore was on work injury. Ultimately, if one is at home but at work, can one still file a work injury compensation claim in the event of injury – such as having a heart attack while on the laptop doing work or sustaining a back injury through a fall whilst walking to the toilet? What sort of impact would working from home have on work injury compensation insurance, in terms of scope, coverage and even premiums?
Considering how COVID-19 has reshaped what work looks like; and in the process, evolved the very definition of the workplace, the burden of proof has also therefore, shifted to the worker. Where previously workers in an office setting could perhaps rely on colleagues to bear witness and/or CCTV footages to substantiate their claim, it would now be more onerous for workers who may primarily work from home to be able to provide the same.
It is therefore timely and critical to review prevailing laws, regulations and policies, and overall compensation and benefits to ensure that workers are adequately protected and provided for.
Not to forget our younger workers. Against the backdrop of a weaker labour market, the SGUnited traineeships initiative was rolled out for participating companies to take on new graduates to boost their job prospects. With the latest Fortitude Budget, the SGUnited traineeships scheme will be expanded to include mid-career workers.
It is worthy to note that the relationship between the trainee and the company is not that of an employment relationship. This means that the Employment Act and other employment-related laws will not apply to them.
Save for workplace harassment, which these groups of workers can take up with the State Courts (Protection from Harassment Court), what happens in the event of workplace grievance or work injury?
As we move to expand the nationwide training initiative and extend these across age groups, the importance of safeguarding and protection of workers and trainees included, must not take a backseat.
Minimally, there should be certain levels of protection laid out for this group of workers, so they, too, have access to avenues of help and support. I also submit that these traineeship placements should encompass some form of basic insurance, which could be catered for under SGUnited or by the sponsoring employer.
(As a Member of Parliament, I have since filed Parliamentary questions to address the above and hope to lobby and debate this further in the interests and welfare of our workers and trainees amidst this next normal.)
While it may not be easy, in these challenging times, it is essential for our employers to treat workers fairly. Whatever actions or decisions employers take, they must remember that the entire company’s employees (whether affected or not) including fellow companies within the industry are watching intently and carving their response into their memory.
Employees too, need to play their part in supporting, working closely with, and giving of their best to understand the challenges employers are going through and the uncertain landscape they are navigating in. After all, with work being stripped to the bare bones, it is now up to both employers and employees to regularly communicate and engage in an open, safe and fair manner. This is the recipe to build mutual trust, understanding and support during these trying times, and ensure that we come out of this crisis even stronger and better.