Case Details
- Citation: [2013] SGHC 279
- Title: Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd
- Court: High Court of the Republic of Singapore
- Date: 26 December 2013
- Judge: Woo Bih Li J
- Coram: Woo Bih Li J
- Case Number: Suit No 1036 of 2012 (Registrar's Appeal No 286 of 2013 and No 287 of 2013)
- Tribunal/Court: High Court
- Plaintiff/Applicant: Wee Kim San Lawrence Bernard
- Defendant/Respondent: Robinson & Co (Singapore) Pte Ltd
- Procedural Posture: Appeals against (i) striking out of the plaintiff’s claim and (ii) expunging paragraphs from the plaintiff’s affidavit
- Legal Areas: Civil Procedure – striking out; Contract – contractual terms – implied terms; Employment Law – contract of service – breach
- Counsel Name(s): Plaintiff in person; M K Eusuff Ali and Lucinda Lim (Tan Rajah & Cheah) for the defendant
- Key Topics: Constructive dismissal; implied term of mutual trust and confidence; measure of damages for wrongful termination; discovery and affidavit compliance; expunging affidavit paragraphs
- Judgment Length: 4 pages, 2,172 words
- Cases Cited (as provided): [2013] SGHC 279 (metadata); Alexander Proudfoot Productivity Services Co S’pore Pte Ltd v Sim Hua Ngee Alvin and another appeal [1992] 3 SLR(R) 933; Teh Guek Ngor Engelin nee Tan and others v Chia Ee Lin Evelyn and another [2005] 3 SLR(R) 22; Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] 3 WLR 95; Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577
Summary
In Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd ([2013] SGHC 279), the High Court dismissed two related appeals brought by the plaintiff employee. The first appeal challenged the Assistant Registrar’s decision to expunge two paragraphs from the plaintiff’s affidavit. The second appeal challenged the striking out of the plaintiff’s substantive claim for damages for alleged constructive dismissal.
The court held that the expunged affidavit paragraphs were properly removed because they effectively circumvented an earlier discovery order that permitted reference to certain documents but prohibited the plaintiff from exhibiting them or citing their contents in a manner inconsistent with the order. On the substantive claim, even assuming (as the employer did for the purposes of the striking out application) that the plaintiff had been constructively dismissed, the court found that the plaintiff’s pleaded case did not disclose a reasonable cause of action for damages beyond the contractual entitlement for termination by notice or salary in lieu of notice.
What Were the Facts of This Case?
The plaintiff, Wee Kim San Lawrence Bernard (“P”), was employed by Robinson & Co (Singapore) Pte Ltd (“the Employer”), a department store. P tendered his resignation on 24 August 2012. Although P tendered his resignation, he later asserted that the resignation was not voluntary but amounted to constructive dismissal. The Employer paid P four months’ salary in lieu of notice and also paid cash for unconsumed annual leave. This was notable because P’s letter of appointment (“LOA”) contained a contractual term providing for only two months’ salary in lieu of notice.
P commenced proceedings on 6 December 2012 seeking damages for constructive dismissal. His pleaded narrative was that the Employer persecuted him because he is homosexual. He therefore attempted to rely on evidence intended to show that his termination was linked to his sexual orientation. The Employer responded by applying to strike out P’s claim, arguing that even on P’s own case, the claim was legally untenable and/or did not disclose a reasonable cause of action.
Procedurally, the dispute also involved affidavit compliance. The Employer applied to expunge paragraphs 28 and 29 of P’s affidavit. This was connected to an earlier discovery order made by an Assistant Registrar on 24 June 2013. That earlier order required the Employer to disclose redacted portions of two documents to P’s solicitors, but it also directed that P “may make reference to the said documents, but shall not exhibit the said documents, in any affidavit filed henceforth from the date of this [o]rder”. P subsequently filed an affidavit on 15 July 2013 in response to the Employer’s strike-out application, and paragraphs 28 and 29 cited passages from the two documents.
The Assistant Registrar expunged those paragraphs and struck out P’s claim. P then appealed to the High Court in Registrar’s Appeal No 286 of 2013 (against the striking out) and Registrar’s Appeal No 287 of 2013 (against the expunging order). At the High Court hearing, P represented himself. The High Court dismissed both appeals.
What Were the Key Legal Issues?
The first issue concerned civil procedure and the integrity of court orders in discovery and affidavit evidence. The question was whether P’s affidavit paragraphs, which cited passages from documents disclosed under a constrained discovery order, were impermissible “exhibiting” or otherwise inconsistent with the earlier order. In other words, the court had to decide whether expunging the paragraphs was justified.
The second, more substantive issue concerned damages for constructive dismissal and the scope of recoverable losses where an employment contract specifies a particular termination mechanism. Even if the court assumed constructive dismissal, the court had to determine whether P could recover damages beyond the contractual measure (salary in lieu of notice) by relying on an implied term of mutual trust and confidence and by claiming “stigma” or other consequential losses.
Related to this was the pleading sufficiency issue inherent in a striking out application. The court had to assess whether P’s statement of claim and supporting materials disclosed a reasonable cause of action, particularly whether P had pleaded the necessary particulars to establish a breach of an implied term and to connect that breach to the losses claimed.
How Did the Court Analyse the Issues?
On the expunging application, the court approached the matter by reading the earlier discovery order as a whole. The Assistant Registrar’s 24 June 2013 order permitted P to make reference to the documents, but it also clearly prohibited P from exhibiting them in any affidavit filed thereafter. The High Court accepted the Employer’s position that, although P did not directly exhibit the documents, he effectively did so indirectly by reiterating the contents of parts of the documents in his affidavit. The court reasoned that the “reference” permission could not be read in isolation; it had to be understood in the context of the prohibition on exhibiting and the overall purpose of the order.
The court gave a practical example: P could refer to the fact that a document was sent, but not to the actual contents unless the cited parts were those to which the Employer had no objection. Because P’s paragraphs cited passages from the documents, the court concluded that P was attempting to circumvent the earlier order. Accordingly, the High Court dismissed P’s appeal against the expunging order.
Turning to the striking out of the substantive claim, the court focused on the contractual framework governing termination. The LOA dated 2 October 2006 contained a relevant clause (clause 4) stating that after confirmation, written notice of termination from either party would be two calendar months or two calendar months’ salary in lieu of such notice, without assigning any reasons. The Employer’s strike-out argument proceeded on the assumption that P was constructively dismissed, but it maintained that the measure of damages would still be limited to two months’ salary in lieu of notice, because the Employer could lawfully have terminated the employment by giving that notice or paying that salary.
The court relied on established authority on damages for wrongful or unlawful termination where the contract specifies a notice period. In Alexander Proudfoot Productivity Services Co S’pore Pte Ltd v Sim Hua Ngee Alvin and another appeal [1992] 3 SLR(R) 933, the Court of Appeal explained that the normal measure is what the employee would have earned under the contract for the period until the employer could lawfully have terminated it, less what the employee could reasonably be expected to earn in other employment. Where the contract expressly provides for termination upon a specified notice period, damages ordinarily correspond to the wages for that notice period. The High Court also noted that this approach was reiterated in Teh Guek Ngor Engelin nee Tan v Chia Ee Lin Evelyn [2005] 3 SLR(R) 22.
Against this, P sought to rely on Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] 3 WLR 95. P’s argument was that he was entitled to damages beyond the contractual notice-based compensation because he suffered stigma and consequential financial loss due to the Employer’s alleged misconduct (in his case, persecution because he is homosexual). The High Court, however, treated Malik as a case about implied terms and recoverability of certain losses where the employer’s conduct breached an implied obligation integral to the employment relationship.
Crucially, the High Court emphasised that Malik was decided in the context of a preliminary issue about whether the applicant’s evidence disclosed a reasonable cause of action. The House of Lords in Malik proceeded on assumptions to elaborate the law of implied terms in employment contracts, particularly an implied obligation not to conduct a dishonest or corrupt business, and it addressed whether losses were recoverable where they were reasonably foreseeable as a serious possibility arising from breach of trust and confidence.
In P’s case, the court held that he was required to show a breach of the implied term of mutual trust and confidence. The court referred to local authority, including Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577, to underline that a bare allegation of breach is insufficient. The statement of claim, as pleaded, did not disclose particulars relevant to establishing the breach. In particular, P did not plead that the circumstances leading to termination were known to others, nor that they put him at a disadvantage in seeking employment elsewhere. His claim for “stigma” damages was also not particularised as a contractual breach giving rise to financial loss.
Accordingly, the court concluded that Malik did not assist P. The court further reasoned that the bare fact of termination could not be used as a gateway to claim damages other than what the contract provides for lawful termination, even if the termination is characterised as constructive dismissal. Otherwise, every employee could claim more than the contractual entitlement by simply alleging a breach of trust and confidence, which would undermine the contractual allocation of risk and the notice-based measure of damages.
Finally, the court noted that P had already received more than the contractual amount for salary in lieu of notice. While the judgment excerpt provided is truncated at the point where the court’s final conclusion is reached, the reasoning leading to that conclusion was clear: P’s pleaded case did not establish a legally viable basis for additional damages beyond the contractual measure, and his attempt to reframe the claim through implied terms and stigma damages failed for lack of pleading particulars and lack of a coherent causal link to recoverable loss.
What Was the Outcome?
The High Court dismissed both Registrar’s Appeals. It upheld the Assistant Registrar’s order expunging paragraphs 28 and 29 of P’s affidavit, confirming that P’s citations of the contents of disclosed documents were inconsistent with the earlier discovery order’s prohibition on exhibiting the documents in affidavits.
It also upheld the striking out of P’s substantive claim. Even assuming constructive dismissal for the purpose of the strike-out application, the court held that P was not entitled to damages beyond the contractual entitlement for termination by notice or salary in lieu of notice, and that his reliance on implied trust and confidence and “stigma” damages did not disclose a reasonable cause of action on the pleadings.
Why Does This Case Matter?
This decision is useful for practitioners because it illustrates two recurring themes in employment litigation and civil procedure in Singapore: (1) strict compliance with court orders governing discovery and affidavit evidence, and (2) the limits of damages where employment contracts specify a notice-based termination regime.
First, the expunging aspect underscores that “reference” to documents disclosed under constrained orders is not a licence to reproduce their contents in affidavits. Courts will look at whether a party is effectively circumventing the purpose of the order. For litigators, this means that when discovery orders include restrictions on exhibiting or using documents in affidavits, counsel must carefully tailor affidavit evidence to comply with both the letter and the spirit of the order.
Second, the substantive reasoning clarifies the relationship between constructive dismissal, contractual notice provisions, and implied terms. While implied terms such as mutual trust and confidence can, in appropriate cases, support claims for consequential losses, the court requires proper pleading and particulars. A claimant cannot rely on Malik as a general authority for “stigma” damages without demonstrating the breach of the implied term and the foreseeability and causation of the claimed losses. The court’s insistence that the termination fact alone cannot expand damages beyond contractual notice compensation is a significant reminder that contractual terms remain central to the measure of damages.
Legislation Referenced
- No specific statutes were identified in the provided judgment extract.
Cases Cited
- Alexander Proudfoot Productivity Services Co S’pore Pte Ltd v Sim Hua Ngee Alvin and another appeal [1992] 3 SLR(R) 933
- Teh Guek Ngor Engelin nee Tan and others v Chia Ee Lin Evelyn and another [2005] 3 SLR(R) 22
- Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] 3 WLR 95
- Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577
Source Documents
This article analyses [2013] SGHC 279 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.