The Singapore Law Gazette

Wrongful Dismissal, Disability Discrimination and Mental Illness

Can an employer dismiss an employee for conduct which was the result of a mental condition or illness? Is mental impairment a form of disability for the purpose of employment law? Would such a dismissal be justified or wrongful amounting to disability discrimination? This article explores these questions by way of a survey of Singapore law and foreign cases.

Introduction

Disabilities come in various forms: some visible, others invisible; some affecting one’s physical functions, others affecting one’s mental functions; but all, in some way, impairing one’s ability to carry out activities like others. Yet, to some degree, all of us have some disability relative to others. We are all differently abled to different degrees.

People with disabilities (PWDs) can live normal lives like everyone else. However, it is sometimes the case that those without disabilities fail to ensure PWDs have equal access to opportunities to thrive.

From this author’s experience, people with invisible disabilities, such as mental illnesses, disorders or developmental disabilities, are less understood and more vulnerable to unfair treatment because of the invisibility of their condition. In particular, what if an employer dismisses an employee for conduct which, as it turns out, was the result of a mental condition or illness? Would this be justified or wrongful dismissal amounting to discrimination of PWDs? This article seeks to explore this particular issue (the Issue).

The law in Singapore is not clear on the Issue. There is a dearth of reported cases on such scenarios. Yet, anecdotally, such cases are not rare: this author has handled such cases before.

Article 27 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) provides that:

“State Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to…[a] work environment that is open, inclusive and accessible to persons with disabilities. State Parties shall safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;

b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment and the redress of grievances;

…

i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

…

k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. [Emphasis added.]”

Singapore is a state party to the CRPD, having ratified it on 18 July 2013. Singapore therefore has an obligation to ensure that our employment laws are fair to PWDs, including those with mental conditions or illnesses.

In this article, we will first consider the applicable law in Singapore under common law and the Employment Act (Chapter 91, 2009 Revised Edition) (EA). We will then survey case law from other jurisdictions to seek guidance on how the Issue is addressed. We then make some proposals.

Singapore Law on the Issue

Common Law

Under the common law, an employee can claim against her employer for wrongful dismissal. The onus of proving the grounds for summary dismissal is on the employer.¹SR Fox v Ek Liong Hin Ltd (1957) MLJ 1. The determination of wrongful dismissal is based on the application of well-established contractual principles regarding repudiatory or fundamental breach of contract as set out in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR(R) 413 (CA) (RDC Concrete).²Applied in Cousins Scott William v The Royal Bank of Scotland plc (2010) SGHC 73 at (46)-(48).

Pursuant to the RDC Concrete framework, the first situation to consider is whether the employment contract clearly and expressly provides for the event pursuant to which the employee was terminated. If the clause relied on merely states “misconduct”, it is likely that the Court would then have to consider the facts to determine whether there was indeed misconduct.³See eg, Long Kim Wing v LTX-Credence Singapore Pte Ltd (2017) SGHC 151 at (28)-(121). If the clause relied on expressly describes a specific objective event, then the factual determination would be clearer (eg, absent without leave for more than 2 days).

RDC Concrete’s second situation is where the party in breach renounces the contract by clearly conveying to the innocent party that it will not perform its contractual obligation at all. Thus, the focus is on whether the employee’s conduct clearly conveys to the employer that she would not perform her employment contract. Such conduct would likely have to be so clear or so severe to be regarded as a breach.

Situation 3(a) is where the obligation which is breached is a condition (and not merely a warranty) of the contract (determined at the time of contracting based on the intention of the parties, objectively ascertained). Thus, the focus is on whether the employee’s conduct breached an obligation which is deemed to be so important.

Situation 3(b) is that if the obligation is not a condition, the innocent party will be entitled to terminate if the breach has deprived the innocent party of substantially the whole benefit of the contract.

However, the Issue gives rise to thorny questions in relation to determining breach. What if the alleged conduct was the result of the employee’s mental condition or illness? What if it can be shown that the conduct in question was not wilful on the part of the employee? Could such conduct be justifiably deemed “misconduct” (assuming this was expressly stipulated in the contract) or conduct which constitutes a repudiatory breach of the employment contract under the RDC Concrete framework?

Unfortunately, there are no reported cases in Singapore on this. The closest is a case, not directly on point, involving a police officer who was retired under Section 7(2)(c) of the Pensions Act on the basis that a medical board convened by his employer had declared him to have Paranoia Disorder.⁴Aziz bin Abdul Rahman v Attorney-General (1979-1980) SLR(R) 55 (HC). The plaintiff was allegedly brought to Woodbridge Hospital for an examination because of his abnormal behaviour. The plaintiff was instructed not to report for duty and to obtain a certificate of fitness from the medical superintendent of Woodbridge Hospital. Subsequently, the plaintiff could not be located. The defendant convened a medical board who declared that he was unfit for duty by reason of Paranoid Disorder. However, the Court found that the plaintiff was unfairly deprived of the opportunity to make representations before the medical board, rendering the purported retirement a nullity. If anything, this case shows that the scenario the Issue presents is plausible and gives rise to difficult questions for a factfinder.

Wrongful Dismissal Under the EA

The amendments to the EA which came into force on 1 April 2019 extended protection as regards wrongful dismissal to all employees (save for limited categories of employees).

Previously, the core provisions of the EA, including Section 14 on wrongful dismissal, covered all employees except managers and executives earning more than $4,500. Now, they will cover all employees including managers and executives. Seafarers, domestic workers, and public servants continue to be excluded under the EA and separately covered by other Acts.

Following mediation conducted by the Tripartite Alliance for Dispute Management (TADM), all wrongful dismissal claims can now be determined in the Employment Claims Tribunal (ECT) instead of the Ministry of Manpower.

However, the quantum limit for ECT claims is S$20,000, or S$30,000 for employees who go through TADM mediation or mediation assisted by their unions recognised under the Industrial Relations Act.

What this means is that managers and executives no longer have to seek recourse for wrongful dismissal via the common law route, where contractual principles apply, and where employees would have to look to their employment contracts to establish that their breach did not amount to a repudiatory breach which entitled the employer to terminate the contract.

Tripartite Guidelines on Wrongful Dismissal (Tripartite Guidelines) Provide Guidance on Wrongful Dismissal Under the EA

Dismissal without Notice

Section 14(1), EA allows an employer to dismiss an employee without notice “on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service” and after due inquiry has taken place.

The Tripartite Guidelines was published on 1 April 2019 and the ECT “is to have regard” to the Tripartite Guidelines.⁵Section 20(6A) of the Employment Claims Act 2016 (No. 21 of 2016). The Tripartite Guidelines provides examples of misconduct, including but not limited to theft, dishonest or disorderly conduct at work, insubordination, and bringing the organisation into disrepute.

Given that the Tripartite Guidelines only provides some illustrations as to what amounts to misconduct, it may well be that the ECT will still refer to common law cases for guidance. What amounts to “misconduct” would turn on the facts of each case and whether the conduct was “inconsistent with the fulfilment of the express or implied conditions of his service” (ie, whether the conduct is inconsistent with the fulfilment of the employee’s obligations as set out in the employment contract).

Dismissal with Notice

An employer has the right to contractually terminate an employee’s employment where notice is given (Section 10(1), EA) or where salary is given in lieu of notice (Section 11(1), EA). Where dismissal with notice is given, the employer does not need to provide a reason for the dismissal.⁶Illustration 3 of the Tripartite Guidelines. The Tripartite Guidelines cites poor performance and redundancy as examples of legitimate reasons for dismissing an employee with notice.

Wrongful Dismissal

Under the EA, employees can bring a claim for wrongful dismissal given with or without notice. Where an employee considers that he has been dismissed “without just cause or excuse” by his employer, Section 14(2), EA allows the employee to lodge a complaint for the reinstatement of her former employment and/or compensation. This is significant because the usual remedy for wrongful dismissal claims at the common law would be damages, whereas the EA also empowers the ECT to order that the employee be reinstated.

Where dismissal is made without notice on the grounds of misconduct, the employer bears the burden of proving the allegation that the employee was dismissed with “just cause or excuse”.⁷Section 27(2)(a) of the Employment Claims Act 2016 (No. 21 of 2016).

Where dismissal is made with notice and the notice of dismissal purports to be given on the ground that there has been poor performance or misconduct by the employee, the employer also bears the burden of proving that ground.⁸Section 27(2)(b) of the Employment Claims Act 2016.

However, the Tripartite Guidelines state that dismissals with notice are presumed not to be wrongful, even where an employer does not give any reason for the dismissal. It appears then that in cases other than poor performance or misconduct, the employee bears the burden of rebutting this presumption, and the Tripartite Guidelines state that “an employee must then substantiate a wrongful reason for the dismissal.”

The Tripartite Guidelines provide guidance as to what would amount to a wrongful reason for dismissal where notice is given. Wrongful reasons cited include discrimination, deprivation of benefit, or to punish an employee for exercising his employment right. Dismissal would also be wrongful where an employer gives a reason for dismissal that is proven to be false. With regard to discrimination, examples cited include discrimination against an employee’s age, race, gender, religion, marital status, family responsibilities, and disability.

An illustration is given of an employer who had made numerous discriminatory remarks to an employee and this was confirmed by other employees. Even though the employer dismissed the employee with notice, the employer’s conduct showed that he adopted a discriminatory attitude towards the employee. The dismissal was wrongful because the facts supported the conclusion that the employer dismissed the employee because of discrimination.

Defining “Disability”

The Tripartite Guidelines are unclear as to what constitutes “disability”. The following questions arise:

1. Does “disability” include both physical and mental disability?
2. Would the duration of the impairment matter? Eg, would transitory impairments with an actual or expected duration of less than 6 months fall within the meaning of “disability” for the purposes of the EA and the Tripartite Guidelines?
3. Would a mental disorder such as bipolar disorder or schizophrenia fall within the scope of ‘disability’?
4. Would a mental health condition such as depression fall within the scope of “disability”?
5. What conditions are excluded from the definition of “disability”?

In this regard, Singapore can turn to other jurisdictions for guidance. Section 6(1) of the UK Equality Act 2010 (UK Equality Act) states that a person has a disability if he has a “physical or mental impairment and the impairment has a substantial and long-term adverse effect on [his] ability to carry out normal day-to-day activities”. Schedule 1 of the UK Equality Act further defines other terms such as “long-term effects” and “substantial adverse effect”, and whether “severe disfigurements” and “certain medical conditions” such as cancer, HIV and multiple sclerosis are disabilities. Section 6(5) of the UK Equality Act states that “a Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1)”. Similarly, 42 U.S.C. § 1202 of the Americans with Disabilities Act (“US ADA”) defines disability to include an individual with “a physical or mental impairment that substantially limits one or more major life activities”. Examples of major life activities include “concentrating” and “thinking”.

In many jurisdictions such as the UK, the US, Canada, Australia, and Hong Kong, mental or psychiatric disorders such as bipolar disorder or schizophrenia fall within the definition of disability. Singapore should consider including mental conditions, illnesses or disorders into the definition of disability. There is no good reason why individuals with mental impairments should be given lesser protection than individuals with physical impairments insofar as such impairments have long-term effects on an individual’s ability to carry out daily activities.

What Amounts to Discrimination Against PWDs?

Presently, the Tripartite Guidelines offer little guidance as to what amounts to discrimination against PWDs. The illustration only cites an example of “discriminatory remarks” as amounting to discrimination. Do actions or inactions amount to discrimination and what would they entail?

Section 15 of the UK Equality Act provides:

“(1) A person (A) discriminates against a disabled person (B) if –

1. A treats B unfavourably because of something arising in consequence of B’s disability, and
2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

Based on the above definition, dismissing an employee with notice because of something arising in consequence of B’s disability would be wrongful insofar as B is still able to perform her employment obligations. For example, A cannot dismiss B, an office worker, if B asks for permission to start work an hour later because of medical treatments that B is undergoing insofar as A is able to accommodate B’s request. Or A cannot dismiss B simply on the basis that B, having Obsessive Compulsive Disorder, spends a lot of time washing her hands in the toilet (where B performs as much work as, and as well as, her colleagues).

Section 15(2) of the UK Equality Act strikes a fair balance between the employer and employee, since an employer cannot possibly discriminate against an employee’s disability if the employer was unaware of her disability.

Under the US ADA, 42 U.S.C. § 12112(5) provides that “not making reasonable accommodations” to disabled individuals amount to discrimination unless employers can demonstrate that “the accommodation would impose an undue hardship on the operation of the business”. The principle of “reasonable accommodation” is a fundamental principle in the CRPD and many countries’ legislation on PWDs. In the above example, the concepts of “reasonable accommodation” without causing “undue hardship” to employers affords greater protection to disabled individuals who cannot help but suffer the consequences which arise from their disability. In cases where individuals suffer from mental illnesses such as depression or bipolar disorder, employers should take steps to help accommodate the employee’s behavioural issues which may arise instead of altogether dismissing the employee before giving the employee an opportunity to rehabilitate and adjust to the working environment.

The Singapore Government has expressed the concern that anti-discrimination laws would have the unintended consequence of deterring employers from hiring them in the first place. Employers may be fearful that employees cannot be dismissed even with legitimate reasons.⁹Roslyn Ten and Christine Loh, “Legal, punitive measures in place to tackle workplace discrimination”, the Straits Times (28 April 2018).

However, such fears can be allayed with a proper communication of, and clear guidance on, the principles concerning disability discrimination. It would be clear that the law will strike a fair balance between employers and employees on the Issue. It is ripe then that we turn to consider the case law of other jurisdictions on the Issue.

Case Law in Other Jurisdictions on the Issue

Employers May Dismiss Employees for Legitimate Reasons if Employee is Unsuitable to Continue in the Job

Generally, the experience of other jurisdictions shows that employers may dismiss employees for legitimate reasons, such as where an individual’s disability results in consequences which make the employee unsuitable to continue in the job position. However, this is subject to the employer ensuring that proportionate alternatives, eg, alternative positions or placing certain conditions, have been considered.¹⁰See also eg, the Canadian case of AA v. Halifax Regional School Board, 2014 NSCA 64, 2014 CarswellNS 439 (2014), in which the Tribunal found that termination was reasonable because the employee’s conduct of exchanging emails as a teacher with a student urging her to kill her parents, purge food, etc., meant that it was reasonable to protect vulnerable students which he would be in regular contact with.

So, in the Australian case of Osborne v Director General Department of Premier and Cabinet [2012] NSWADT 91, an employee firefighter with bipolar disorder was dismissed after a manic episode where he had indecently assaulted three women while on duty. The Tribunal dismissed the employee’s claim for disability discrimination and found that the reason for dismissal was not his disability but that his behaviour amounted to a serious misconduct which made him unsuitable to continue in the role of a firefighter, especially when he was in a role of public trust and responsible for the public’s safety.

In the Hong Kong case of M v Secretary for Justice [2007] HKEC 1271, an administrative officer suffering from Generalized Anxiety Disorder claimed that his employer (the Government) was liable under the Disability Discrimination Ordinance (Chapter 487) (DDO) as he was compelled to resign after a period of time when his performance was deemed unsatisfactory by his employer and he allegedly suffered discriminatory and harassing conduct from senior colleagues. The Court rejected the discrimination claim on the basis that the employer had no knowledge of the employee’s condition, and the employer’s appraisals of his poor performance were genuine and honest.

In any event (even if discrimination were present) the employee would be unable to fulfil the ‘inherent requirements’ of the job by reason of his disabilities (a legislated defence under Section 12 of the DDO) given the job’s demands for all-round capabilities and ability to withstand physical and mental stress. The Court considered Australian authorities on Section 15(4) of the Australian Disability Discrimination Act 1992 (DDA) (Cth), which is similar to that of Section 12 of the DDO and summarised some key principles on the “inherent requirements of the job” defence at [265].

First, the defence does not require the employer to alter the nature of the particular employment so as to accommodate the employee with disability, and the Court must give appropriate recognition to the business judgment of the employer in organizing its undertaking and in regarding the requirement as essential to the particular employment.

Second, it is the requirements of that particular employment which must be considered, not some different employment modified to meet the needs of an employee with disability. This is with reference not only to the terms of the employment contract, but also to the function which the employee performs as part of his undertaking.

Third, one must look at the characteristic or requirement of that employment as opposed to those requirements that are peripheral.

Fourth, in helping an employee to fulfil the inherent requirements, the employer must provide to the employee “services” or “facilities” that are external to the employment. The employer has no duty to ask some other staff to do the work of the employee with disability.

In this author’s view, these principles strike a balance between reasonable obligations on, and expectations of, employers and protecting employees from unfair discrimination on the ground of disability.

Employers Generally Cannot Dismiss for Conduct Resulting from Psychiatric Condition

Generally, an employee cannot be dismissed for conduct which was the result of a psychiatric condition and reasonable accommodations are available.¹¹See also eg, the Canadian case of AFG Industries Ltd. v. A.B.G.W.I.U., Local 295G, 1997 CarswellOnt 5642 (1997), where the employee was terminated for absenteeism and erratic behaviour resulting from bipolar affective disorder (manic depression). The Tribunal reinstated the employee on certain conditions such as the continuation of medication. This was because the Tribunal found that no “undue hardship” was caused to the employer, there was no safety concerns with “potentially catastrophic” outcome, and the employee’s absences were not costly to employer. See also Lane v. ADGA Group Consultants Inc., 2008 CarswellOnt 4677 (2008); Kingcome Navigation Co. v. S.I.U., 1997 CarswellOnt 6305 (1997), where the employee was reinstated but to another position unless certain conditions are met (medically certified fit for work and to refrain from alcohol); Canada Safeway Ltd. v. U.F.C.W., Local 401, 1992 CarswellAlta 987 (1992), where the employee performed poorly at work, which was due in part to his mental condition, likely schizophrenia, and exhibited “bizarre” behaviour which the employer should have realised something was wrong and ascertained before terminating him; Shuswap Lake General Hospital and BCNU (Lockie), Re, 2002 CarswellBC 3994 (2002); U.S.W.A., Local 5885 v. Sealy Canada Ltd., 2006 CarswellAlta 883 (2006); Westcast Industries Inc. Westcast Castin Winham v Caw-Canada and Its Local 4207, 2008 WCW 29; Gambini v Total Renal Care Inc 486 F.3d 1087. In the UK case of Department for Work and Pensions v Hall (Appeal No. UKEAT/0012/05/DA), an employee with a psychiatric condition was terminated for misconduct (after being involved in verbal and physical incidents with colleagues). The Tribunal found that the employer failed to consider reasonable adjustments in breach of duty under the UK Disability Discrimination Act 1995 even though she had not informed employer of her condition; the employer was found to have been put on notice of the disability from certain facts.

In the Australian case of A v The Respondent, [2016] FWC 8631, the employee diagnosed with disorganised schizophrenia was dismissed after he suffered a panic attack and left the office with various belongings. In the claim for unfair dismissal under the Fair Work Act 2009, the dismissal was regarded as harsh or unjust: the abrupt departure from work should not have been regarded as a resignation and did not warrant dismissal.

On the other hand, in the Canadian case of Niagara Catholic District School Board v. C.U.P.E., Local 1317, 2010 CarswellOnt 6717, the Tribunal found the employer was justified in disciplining the employee, although not to discharge but suspend her so she may apply for long-term disability benefits under a collective agreement. This was based on the employee’s colourful disciplinary record, her relatively short-term seniority, and the nature of the workplace, the evidence that the employee’s paranoid schizophrenia likely rendered her totally disabled, and that there was no evidence that any accommodation was possible or available, or that she could safely be returned to the workplace.¹²See also the Canadian case of Pirelli Cables Inc. and USWA, Local 2952, Re, 1999 CarswellBC 4003 (1999), where the employee had long-term post-traumatic stress disorder that remained untreated, resulting in violent conduct and long absences without prior notice. The Tribunal found no reasonable prospect that the employee would be able to substantially fulfil his duties (as a fork lift and insulation line operator in a manufacturing company) and the employers had fulfilled their duty to accommodate (by seeking help from legal and medical authorities) but the employee refused to facilitate those efforts.

Employee’s Culpability in Not Taking Medication Material

More controversial is when an employee acted in a particular way because he or she did not take psychiatric mediation. The reasons why the employee did not take medication and the employee’s culpability in that respect are material.

In Burdett v Aviva Employment Services Ltd, UKEAT/0439/13JOJ, the employee was dismissed for gross misconduct because he had sexually assaulted female colleagues after discontinuing his medication for a paranoid schizophrenic illness. The Tribunal found that, while sexual assault would be typically deemed gross misconduct, the evidence was that the employee in this case had only done these acts because of his mental impairment; it was not done wilfully. Neither was discontinuing his anti-depressant medicine a wilful misconduct. He had discontinued the medicine without realising that his psychosis would return. However, the Tribunal below did not consider this question properly. The reason why the employee had stopped taking the medicine and the degree of culpability in this regard is material. The Tribunal below should have taken into account the “relevant explanation or mitigation” before determining whether dismissal falls within the range of reasonable responses. The Tribunal below also should have considered whether it would have been possible for the employee to carry out his duties from home, whether there would still have been some need for him to come in to the workplace, whether the employer had a reasonable concern that this would send out the wrong message and/or in some way fail to address the concerns of those who had previously been assaulted by the employee.

Whereas in the Canadian case of Honeywell Ltd. and CAW, Local 80, Re, 2002 CarswellOnt 9425 (2002), the Tribunal found that the employee’s condition could have been controlled with medication but she has shown reluctance to take them; that the employer has a right to ensure the safety of the workplace. The Tribunal also took into account the fact that termination was a last resort taken by the employer who was sympathetic to the employee’s condition.

In another Canadian case of BASF Coatings & Inks Canada Ltd. v. Teamsters, 1990 CarswellOnt 4216, the employee’s work had high safety risks to himself and others involving coatings and inks in a plant. The employee performed well at work for 11 years until he had paranoid psychosis and schizophrenia, which resulted in erratic and aggressive behaviour at work. The employer made him undertake to take his medication but the employee claimed that he was no longer required to do so. However, his erratic behaviour continued. The employer terminated his employment. The Tribunal found that termination was just given the employee’s past conduct of refusing to voluntarily take his medication, the fact that no monitoring system of the employee taking his medication was possible, and the high-risk nature of the work.

Employers Generally May Dismiss for Conduct Not Relating to Disability

However, an employer may dismiss an employee for conduct which was not caused by the disability.¹³See also eg, the Canadian case of Bank of Nova Scotia and S. (D.), Re, 2005 CarswellNat 7741 (2005), where the employee was dismissed for failing to notify her employer about receiving 22 months of wages she was not entitled to. The Tribunal found that the employee failed to prove that the bipolar disorder was a major causative factor in her failure to notify her employer. In The Commissioners for Her Majesty’s Revenue and Customs v. Mr Paul Hart, Appeal No. UKEAT/0432/13/DM (2014), an employee suffering from chronic anxiety disorder, agoraphobia, and bipolar affective disorder was dismissed after failing to inform his employer (pursuant to its internal policy on conduct) that he had received a Penalty Notice for Disorder for alleged theft. The Employment Appeal Tribunal found that there was no discrimination as the basis for dismissal was the employee’s lie that the Penalty Notice received was for an altercation rather than theft. This had nothing to do with his mental conditions.¹⁴Also, in Miss D Myers v. Metropolitan Police Authority, The Commissioner of Police of the Metropolis, Case Numbers: 3202331/09 and 3200046/10 (2011), an employee with bipolar disorder in the Metropolitan Police Service was dismissed after getting convicted for dangerous driving. The Employment Tribunal found that the dismissal was not due to the disability but conduct falling short of the Met’s standards.

Employer’s or Employee’s Knowledge of Disability

Generally, if the employer did not have knowledge of the disability when the employer dismissed the employee, the employer cannot be held liable.¹⁵See eg, the US case of Boadi v. Center for Human Development, Inc., 239 F.Supp.3d 333 (2017) under the ADA. In Mr I Cox v. Essex County Fire and Rescue Service, Appeal No. UKEAT/0162/13/SM (2013), an employee with bipolar disorder was summarily dismissed after a number of aggressive incidents with colleagues. The employee claimed for failure to make reasonable adjustments under the UK Disability Discrimination Act 1995. However, the Tribunal found that the employer did not have actual or constructive knowledge of the disability and so had no duty to make reasonable adjustments.

Dicey is a situation where the employee himself was unaware of his mental disorder. In the Australian case of Applicant v Respondent [2013] FWC 7421, an employee diagnosed with a mental disorder (there was conflicting evidence as to whether it was Autism Spectrum Disorder or paranoid schizophrenia) claimed for unfair dismissal under Fair Work Act 2009 after being dismissed for inappropriate behaviour (eg, assertions that managers were lying to him). The Commissioner found that “[i]t would appear indefensible to dismiss an employee who has a mental disorder for conduct which occurred when the employee was unaware that he had a mental disorder and for which he had not yet received any treatment”. The Commissioner observed that “the evidence in this matter does not suggest that the [employee’s] conduct would have any general deleterious effect on the health and safety of other employees.” Further, the evidence was clear that the mental disorder of the employee was treatable through psychiatric treatment and medication and that the employee could return to work once cleared by a treating psychiatrist.

On the other hand, in the Canadian case of Buxton v. Edgewater Casino, 2015 BCHRT 146, 2015 CarswellBC 2723 (2015), the employee allegedly engaged in threatening conduct when he was told he was not promoted. His claim under the Human Rights Code was dismissed because at the time of the outburst, the employers could not reasonably have known that the employee was suffering from a mental disability. The employee himself was not diagnosed at the time of confrontation.

Possible Guidance for Singapore

While the above foreign authorities are based on specific legislation, they are nonetheless helpful in providing guidance for judicial or tribunal factfinders in Singapore dealing with similar cases.

The authorities surveyed generally take the approach that if the conduct in question was caused by a mental condition or illness, that conduct (even involving violence) which would otherwise constitute misconduct or (possibly repudiatory) breach of the employment contract is deemed not so because the conduct would not be considered wilful. This is a finding of fact based on evidence adduced, and not based on specific legislative presumptions or provisions. Hence, factfinders in Singapore can adopt a similar approach even despite the lack of specific legislative provisions against disability discrimination.

Further, the authorities generally consider whether the employee’s condition may be appropriately managed via medication or other coping mechanisms, such that her future work performance is not impaired and she would not present any safety risk to her colleagues. If yes, then the further question is whether the employee knew she had to take such medication or undertake coping mechanisms, but was reckless or wilful in not doing so. If no, then the employer’s dismissal of the employee would be wrongful. Again, this is a question of fact in determining whether the dismissal was wrongful or legitimate.

Given the lack of express legislation in Singapore on what constitutes discrimination for the purpose of wrongful dismissal, factfinders in Singapore are free to determine this on the facts. As such, factfinders may take into consideration whether the dismissal was based on the consequences of an employee’s disability such that the employee was unable to fulfil the inherent requirements essential to that particular job. If this question is in dispute, the employer should be required to prove these inherent requirements and how the employee was unable to fulfil them.

This is pertinent especially to PWDs as a workplace study on “Discrimination Faced by People with Disabilities at the Workplace” by the Disabled People’s Association and the Institute of Policy Studies highlighted examples of PWDs who were dismissed allegedly for being unsuitable for the job without being provided any concrete basis:¹⁶Discrimination Faced by People with Disabilities at the Workplace: A Qualitative Study by the Disabled People’s Association and the Institute of Policy Studies, accessed on 23 October 2019 at <http://www.dpa.org.sg/wp-content/uploads/2018/07/Discrimination-Faced-by-People-with-Disabilities-at-the-Workplace-Study.pdf>.

“Respondent 01 was abruptly told to quit because the organisation had deemed him unsuitable for the job. He was given no other explanation.”

“Respondent 13, a stroke survivor which mobility issues who had successfully navigated an interview, a technical test and received the job offer. After signing the letter of appointment, he had gone to the toilet and slipped along the way, hitting his knee. Apparently, this was witnessed by a staff and reported to the management. The respondent was then informed he had been let go from the job with immediate effect, with no reason given at all.”

Conclusion

In sum, it is plausible for an employee to claim wrongful dismissal against an employer in the common law or under Section 14 of the EA for disability discrimination in relation to the Issue if certain specific facts are proven.

However, there is a lack of legislative or quasi-legislative guidance and reported cases in Singapore on the Issue. The term “disability” should be defined more clearly in the Tripartite Guidelines or in legislation. It should be made clear whether mental conditions or illnesses, whether transitory or permanent, would constitute disability for the purpose of employment law.

Notwithstanding, and perhaps because of, the lack of express legislation, judicial or tribunal factfinders in Singapore are free to determine wrongful dismissal on the facts with reference to factual questions such as whether the employee’s conduct in question was caused by a mental condition or illness, whether the employee was reckless or wilful in failing to take medication or undertake coping mechanisms, and whether the employee was unable to fulfil the inherent requirements essential to the particular job.

More than going towards Singapore fulfilling her obligations under the CRPD, the above proposals will help transform societal attitudes and workplace culture to be more inclusive towards PWDs. And that is an objective, one hopes, we do not have to contend over.