Case: Singapore High Court on what constitutes confidential information protectable post-employment


In Asia Petworld Pte Ltd v Sivabalan s/o Ramasami [2022] SGHC 128, the General Division of the Singapore High Court (Philip Jeyaretnam J) analysed certain categories of information to determine if they were subject to implied general confidentiality obligations post-employment.  The Court affirmed a key principle that the knowledge and experience that an employee acquires during his employment is not protectable confidential information post-employment.

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Case: Court’s comments on contractual discretion and implied term of mutual trust and confidence

Significant comments by the Appellate Division of the Singapore High Court.

In Dong Wei v Shell Eastern Trading (Pte) Ltd [2022] SGHC(A) 8, the Court in obiter dicta considered and said that:

a. although it has been held that an employer’s exercise of a contractual discretion is subject to requirements of rationality, good faith and consistency with the contractual purpose (Leiman, Ricardo and another v Noble Resources Ltd and another [2018] SGHC 166 at [112]-[114]; Braganza v BP Shipping Ltd and another [2015] 1 WLR 1661);

b. such a fetter on contractual discretion should not extend to the contractual right to terminate with notice (at [88]);

c. further, this fetter would cut both ways and also limit an employee’s right to terminate with notice (at [92]);

d. the existence of an implied term of mutual trust and confidence in employment contracts under Singapore law is not yet settled (The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd [2015] 3 SLR 695 (CA) at [44]);

e. the High Court of Australia in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 had firmly rejected this in Australian law. The Court’s reasoning there would be cogent in the Singapore law context too.

#singaporelaw #law #employmentlaw #litigation #contractlaw

Dr Jeremy Fernando, Internal Investigations, Misconduct and Public Relations

Singapore Law; Legal; Lawyer

Dr. Jeremy Fernando, a non-residential teaching staff of Tembusu College, National University of Singapore (NUS) was recently reported to have been dismissed for alleged sexual misconduct. NUS has since lodged a police report and issued a press statement after student group Students for a Safer NUS (SafeNUS) called for accountability.

There are important legal, crisis management and public relations (PR) lessons to be learnt from this episode (quite apart from the important issues about organisations upholding cultures of safety from sexual and emotional abuse).

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Case: Public Prosecutor v Jurong Country Club and another appeal [2019] SGHC 150 – High Court considers factors to determine whether employee or independent contractor

Significance: Singapore High Court considers factors to determine whether a person was engaged as an employee or independent contractor for purposes of the Central Provident Fund Act (CPFA).

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6 Ways Businesses Can Maximise Their Downtime During COVID-19 Season

By Ronald JJ Wong and Nee Yingxin

If your business is experiencing a slow-down because of Circuit Breaker and social distancing measures during this COVID-19 season 19, now is the best time to repair legal foundations, review internal systems, and position your business for when things pick up again.

Here are 6 key areas you should review.

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Can employment contract prohibit post-termination disclosure of information that is not confidential?

Singapore Law; Legal; Lawyer

Can an employment contract clause expressly prohibit post-termination disclosure of information that is not actually confidential? Most likely, no.

As a Singapore employment lawyer, I recently came across such a clause in an employment contract prohibiting indefinite disclosure of “any information” relating to the employer company.

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Case Update: Long Kim Wing v LTX-Credence Singapore Pte Ltd [2017] SGHC 151 – employer liable for failing to conduct due inquiry before termination for cause / dismissal

Significance: The Singapore High Court held an employer liable for failing to conduct due inquiry before terminating or dismissing an employee for misconduct.

Although the employee was found to have indeed committed misconduct which justified his dismissal, the Court also found that the employer had breached its employment contract in failing to conduct due inquiry. Under the relevant clause in the contract, it was provided that:-

“The Company may after due inquiry dismiss without notice an employee on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his/her service.”

The Court then had to consider what constituted “due inquiry”. Although the clause was similar to s 14(1) of the Employment Act (Cap 91, 2009 Rev Ed), the employee did not rely on this section as the Act was not applicable to him. The Court then considered case law as well as the website of Singapore’s Ministry of Manpower (“MOM”) ( (accessed 17 April 2017)). The Court noted that under the subject of “Termination due to employee misconduct” and “Holding an inquiry”, the website states that the employee being investigated for misconduct should have the opportunity to present his case even though there is no prescribed procedure for conducting an inquiry.

At [161]-[162], the Court then opined that the phrase “due inquiry” means something more than just the making of inquiries and the conduct of an investigation. Otherwise the word “inquiry” alone would suffice. The phrase suggests some sort of process in which the employee concerned is informed about the allegation(s) and the evidence against him so that he has an opportunity to defend himself by presenting his position, with or without other evidence. While the website of the MOM does not have the force of law, its guide that the employee concerned should have the opportunity to present his case is a useful one. That accords with notions of justice and fairness especially since serious consequences may follow.  In order for an employee to be given an opportunity to present his case effectively, he must first be informed clearly what the case against him is. This includes the allegation(s) and the evidence against him. While “due inquiry” does not mandate any formal procedure to be undertaken, the more the informality the greater the danger that “due inquiry” was not undertaken. Accordingly, where no formal process was undertaken, the court should be more careful to ensure that the employee’s right is protected.

The Court thus found the employer liable for breaching its obligation to conduct due inquiry. The Court then applied Gunton v Richmond-Upon-Thames London Borough Council  [1980] 3 WLR 714, which entitled the employee his salary for the reasonable time it would have taken the employer to conduct “due inquiry”.

Unfortunately, the evidence adduced by the parties before the Court was scant on this point of how long the reasonable time would have been to conduct due inquiry.

Further,  the Court had some reservation as to whether the Defendant would also be obliged to give the Plaintiff an opportunity to address it on the consequences of his misconduct if it concluded that the misconduct was established. There was no evidence as to what human resource departments do or on the advantages and disadvantages of embarking on such a course of conduct. There was also no evidence or submission as to whether both liability and consequences could be addressed together in the same opportunity given to the Plaintiff or should be done separately: at [182].

The Court then found that the employer would not have required more than seven days, based on the chronology of events which transpired in this case.

Case Update: Liu Huaixi v Haniffa Pte Ltd [2017] SGHC 270 – IPA letter may be evidence of foreign worker’s salary amount

Significance: Singapore High Court rules that monthly salary amount stated in Ministry of Manpower’s (MOM’s) in-principle approval (IPA) letter to a foreign worker is indicative of worker’s salary where written employment contract is absent.

The Court in this case ordered department store company Haniffa to pay $6,500 for salary and payment in-lieu of termination notice to PRC worker Liu Huaixi who had worked as a warehouse assistant and supermarket storekeeper.

The IPA letter issued by MOM had stated that Liu would receive a basic monthly salary of $1,100. Generally, such IPA letters are issued on the basis of the employer’s declaration to MOM as to the expected monthly salary amount.

However, Liu was given in this case a salary of $680. The employer claimed that there was an oral contract, but the evidence was scant and the Court rejected finding such an oral contract.

Justice Lee Sieu Kin noted former Labour Minister Tan Chuan-Jin’s parliamentary speech on IPA letters and stated at [25]-[31] that the IPA letter is intended to keep foreign workers informed of their salary components in clear terms. When applying to the MOM for a work permit, the employer is required to declare the foreign worker’s basic monthly salary, allowances, and deductions. This is one of the bases upon which the MOM approves (or rejects) the application. The second policy objective is to shift more responsibilities of employing foreign workers onto the employers. The reason why IPA duties are added to employers is to broaden their scope of their responsibilities, and in the process, to allow employees to rely less on middlemen. An employer is required to declare the actual basic monthly salary of the foreign worker in applying for a work permit and to maintain the payment of such sum for the duration of that employment unless modified in accordance with the Employment Regulations. Given the statutory intent of the IPA, the court would take as factual an employer’s declaration of the basic monthly salary in the IPA because he must be presumed to be truthful when he made the declaration.

The Court also stated at [33]: “Indeed, I would go so far as to state that even if there was a written contract of employment which provides for a monthly basic salary of less than the sum stated in the IPA, the burden would lie on the employer to show why the IPA figure does not reflect the true salary. For example, the employer may adduce evidence to prove that the sum stated in the IPA is different from the amount declared by him in the application for the work permit and somehow an error had been made in the IPA by MOM. Or the employer can admit that he had made a false declaration in the work permit application, thereby attracting other consequences for himself”.

Comment: It is needless to say that employers should be truthful in making declarations in their applications for work permits to MOM. For a long time prior to this case, it was unclear what the status of IPA letters is in salary disputes. From my volunteering work with migrant worker NGOs, I have heard anecdotally that in many cases in the (former) labour courts, the IPA letter was sometimes treated as neither here nor there.

Now it is made clear that the IPA letters have evidential effect and arguably almost quasi-contractual effect. Of course, this is where there is no written employment contract, or good evidence of a binding oral employment contract. In any case, MOM regulations now require that key employment terms are in writing. This is helpful for foreign workers. At the end of the day, the starting point for justice and fairness has to be in clear expectations on all parties, and the clarity of these expectations (assuming there is no intentional exploitation, misrepresentation or otherwise) is best brought out where there are clear written documents which every party understood and signed on.

It is hoped that this decision will go some way to promoting clarity and certainty for employers and foreign workers. I hope also that black sheep employers will not now try to force foreign workers to sign on documents (e.g. to agree to lower the salary only after arriving in Singapore) the workers would likely disagree on but have no bargaining power to say no to.  I think it is important that workers should in such cases collate evidence of such instances if they are ever forced into them. For example, record the conversation with the employer where they voice our their objection and the employer pressures them to sign the documents anywhere and threatens to repatriate them if they do not.

Legislative Update: new Tripartite Standard on Employment of Term Contract Employees

Singapore Law; Legal; Lawyer

On 31 July 2017, the Ministry of Manpower, the National Trades Union Congress, and the Singapore National Employers Federation jointly released the new Tripartite Standard on Employment of Term Contract Employees (the “Standard“). The new Standard is not mandatory, but employers who adopt the Standards can distinguish themselves terms of human resource and employment practices, enhancing their attractiveness as employers and staff retention.

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