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 of Decision: 26 December 2013
- Judge: Woo Bih Li J
- Case Number: Suit No 1036 of 2012
- Registrar’s Appeals: Registrar’s Appeal No 286 of 2013 and Registrar’s Appeal No 287 of 2013
- 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 of the plaintiff’s affidavit
- Legal Areas: Civil Procedure (striking out); Contract (contractual terms and implied terms); Employment Law (contract of service; constructive dismissal)
- Key Applications Heard Below: Summons No 3064 of 2013 (strike out); Summons No 3969 of 2013 (expunge affidavit paragraphs)
- Representation: Plaintiff in person; for defendant, M K Eusuff Ali and Lucinda Lim (Tan Rajah & Cheah)
- Earlier Representation Noted: At AR hearing, plaintiff was represented by Mr Faizal Shah of Samuel Seow Law Corporation
- Decision Summary: Appeals dismissed; affidavit paragraphs expunged; claim struck out on the basis that the pleaded case disclosed no reasonable cause of action beyond the contractual notice/salary in lieu
Summary
In Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2013] SGHC 279, the High Court (Woo Bih Li J) dismissed two related Registrar’s Appeals brought by an employee against (1) the striking out of his constructive dismissal claim, and (2) an order expunging two paragraphs from his affidavit evidence. The case arose from the employee’s resignation and his allegation that the resignation was effectively a constructive dismissal because the employer allegedly persecuted him due to his homosexuality.
The court held that the employee’s attempt to rely on the employer’s alleged discriminatory conduct was irrelevant to the measure of damages pleaded, given the express contractual termination clause in the employee’s Letter of Appointment (“LOA”). Even assuming constructive dismissal, the damages recoverable for wrongful termination were limited to the contractual notice period (or salary in lieu), subject to mitigation. The employee had already received more than the contractual entitlement, and his pleaded “stigma” damages theory based on Malik v Bank of Credit and Commerce International SA was found to be insufficiently particularised and legally inapplicable on the pleaded facts.
On the procedural side, the court also upheld the AR’s decision to expunge paragraphs that quoted or reproduced the contents of documents that the employee had been expressly ordered not to exhibit in affidavits. The court treated the employee’s approach as an attempt to circumvent the earlier discovery order, and therefore dismissed the appeal on that evidential point as well.
What Were the Facts of This Case?
The plaintiff, Wee Kim San Lawrence Bernard (“P”), was an employee of the defendant, Robinson & Co (Singapore) Pte Ltd (“the Employer”), which operated as a department store. P apparently tendered his resignation on 24 August 2012. Under his employment contract, the Employer paid him four months’ salary in lieu of notice and also paid cash for his unconsumed annual leave. However, P’s LOA stipulated that the Employer would pay only two months’ salary in lieu of notice upon termination without assigning reasons.
P’s case was that, although he tendered his resignation, the resignation should be treated as a constructive dismissal. He alleged that the Employer persecuted him because he is homosexual. On that basis, he commenced proceedings on 6 December 2012 seeking damages for constructive dismissal.
Procedurally, the Employer applied to strike out P’s claim. Summons No 3064 of 2013 was filed on 18 June 2013 with supporting affidavit evidence. P responded with an affidavit on 15 July 2013. The Employer then brought a further application, Summons No 3969 of 2013, on 31 July 2013 seeking to expunge paragraphs 28 and 29 of P’s affidavit.
Both summonses were heard by an Assistant Registrar (“AR”) on 6 August 2013. The AR ordered that paragraphs 28 and 29 be expunged and also struck out P’s claim. P then filed Registrar’s Appeals No 286 of 2013 (against the striking out) and No 287 of 2013 (against the expunging order). Woo Bih Li J heard both appeals together on 9 September 2013 and dismissed them.
What Were the Key Legal Issues?
The first issue concerned civil procedure and affidavit evidence: whether P’s affidavit paragraphs should be expunged because they effectively reproduced the contents of documents that P had been ordered not to exhibit in affidavits. This required the court to interpret the scope and effect of an earlier discovery order made by the AR on 24 June 2013.
The second, more substantive issue concerned employment contract damages and the proper measure of damages in a constructive dismissal scenario. The court had to determine whether P’s pleaded allegation of persecution (including alleged discrimination based on sexual orientation) could support damages beyond what the employment contract expressly provided for lawful termination—particularly where the Employer had already paid P four months’ salary in lieu of notice despite the contract stating two months.
Closely linked to the damages issue was the question of whether P could invoke the doctrine of implied terms in employment contracts, and specifically whether he could rely on the reasoning in Malik to claim additional “stigma” or consequential losses. The court needed to assess whether P’s pleadings disclosed a reasonable cause of action for breach of an implied term of mutual trust and confidence, and whether the pleaded facts were sufficiently particularised to fit within the legal principle.
How Did the Court Analyse the Issues?
On the affidavit expunging issue, the court traced the procedural history. P had earlier filed Summons No 2461 of 2013 on 10 May 2013 seeking discovery of certain documents with redactions. On 24 June 2013, the AR allowed discovery of the redacted portions but made an important restriction: 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”. The AR also directed that copies of the documents be provided only to P’s solicitors.
When P later filed his affidavit on 15 July 2013 in response to the Employer’s strike-out application, paragraphs 28 and 29 cited passages from the two documents. The Employer argued that, although P had not “directly exhibited” the documents, he had effectively done so indirectly by reiterating the contents. Woo Bih Li J agreed. The court reasoned that the restriction on exhibiting documents must be read together with the permission to “make reference” to the documents. Taken as a whole, the order did not permit P to cite the actual contents of the documents; rather, P could refer to matters such as the existence or sending of the documents, but not reproduce the substance of the redacted material.
Accordingly, the court dismissed P’s appeal against the expunging order. The decision underscores that courts will police attempts to circumvent discovery and affidavit restrictions, and that “reference” is not a licence to reproduce the prohibited content in affidavit form.
Turning to the substantive strike-out appeal, the court approached the matter by focusing on the employment contract’s express termination clause. The LOA dated 2 October 2006 contained clause 4, which provided 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 position for the purposes of the strike-out application was to assume, without conceding, that P had been constructively dismissed. Even on that assumption, the Employer argued that the damages were limited to the contractual notice/salary in lieu.
In support, the Employer relied on Alexander Proudfoot Productivity Services Co S’pore Pte Ltd v Sim Hua Ngee Alvin and another appeal [1992] 3 SLR(R) 933. Woo Bih Li J quoted the Court of Appeal’s articulation of the normal measure of damages for wrongful dismissal: the amount 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 on a month’s notice, damages ordinarily correspond to that notice period’s wages. The Court of Appeal’s reasoning also included the principle that a wrongful summary dismissal is a nullity, and the servant’s recovery is limited to remuneration for the notice period following the summary dismissal, subject to mitigation.
The court also noted that the Court of Appeal had reiterated this approach in Teh Guek Ngor Engelin nee Tan and others v Chia Ee Lin Evelyn and another [2005] 3 SLR(R) 22. Applying these principles, the court held that P’s allegation that the termination was because he is homosexual did not affect the legal measure of damages where the contract already specified the quantum payable for lawful termination. The court further observed that P had insisted on being paid four months’ salary as compensation, and that the Employer had eventually paid four months’ salary in lieu of notice. For the strike-out application, however, the Employer chose not to rely on any concluded settlement, and instead relied on the legal limitation of damages.
Crucially, Woo Bih Li J held that P’s “stigma” damages argument based on Malik was not legally available on the pleaded case. The court explained that Malik concerned an implied obligation not to conduct a dishonest or corrupt business, and the recoverability of losses arising from breach of trust and confidence where such losses were reasonably foreseeable. But the court emphasised that Malik was decided in the context of whether the evidence disclosed a reasonable cause of action, and the House of Lords proceeded by making assumptions to expound the law of implied terms in employment contracts.
In the present case, the court required P to show a breach of the implied term of trust and confidence. Although P had pleaded breach of an implied term of mutual trust and confidence, Woo Bih Li J found that the pleading was a bare allegation: the statement of claim did not disclose relevant particulars establishing the breach. The court also found that P did not plead that the circumstances leading to termination were known to others or that they put him at a disadvantage in seeking employment elsewhere. The “stigma” claim was therefore not particularised as a breach of contract giving rise to financial loss in the manner required by the implied terms framework.
Finally, the court rejected the broader proposition that the mere fact of termination could ground a claim for damages beyond what the employment contract provided for lawful termination. Otherwise, every employee could claim more than the contractual termination entitlement simply by alleging breach of trust and confidence. This reasoning reflects a policy concern: implied terms cannot be used as a general escape route from express contractual limitations on termination-related damages, absent proper pleading and a legally coherent causal and foreseeability basis.
What Was the Outcome?
Woo Bih Li J dismissed both Registrar’s Appeals. The court upheld the AR’s order expunging paragraphs 28 and 29 of P’s affidavit because those paragraphs cited passages from documents that P had been ordered not to exhibit in affidavits. The court also upheld the striking out of P’s claim, concluding that the pleaded case did not disclose a reasonable cause of action for damages beyond the contractual entitlement.
Practically, the effect of the decision was that P’s constructive dismissal action did not proceed. The court’s approach meant that even if P’s resignation were treated as constructive dismissal, the damages recoverable would be constrained by the LOA’s termination clause, and P’s attempt to claim additional “stigma” losses failed for lack of particularisation and legal fit.
Why Does This Case Matter?
This decision is significant for practitioners because it illustrates two recurring themes in employment litigation: (1) the strict enforcement of procedural and evidential orders concerning affidavit content, and (2) the disciplined approach to damages where an employment contract contains an express termination mechanism.
On damages, the case reinforces that the measure of damages for wrongful termination is generally anchored to what the contract would have allowed lawfully—typically the notice period or salary in lieu—subject to mitigation. Allegations about the employer’s motives or conduct (including discrimination-based allegations) may be relevant to liability in some contexts, but they do not automatically expand the damages quantum where the contract expressly governs termination consequences and where the pleaded case does not properly establish additional contractual or implied-term breaches.
On implied terms, the court’s treatment of Malik is particularly instructive. While Malik recognises that breach of trust and confidence may, in principle, give rise to consequential losses, this case shows that claimants must plead and particularise the factual basis for such losses—such as whether the circumstances were known to others and whether they foreseeably disadvantaged the employee in obtaining alternative employment. Bare allegations will not survive a strike-out application.
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.