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 Appeal No 286 of 2013 and No 287 of 2013)
- Tribunal/Proceedings: High Court (hearing of Registrar’s Appeals)
- Coram: Woo Bih Li J
- Plaintiff/Applicant: Wee Kim San Lawrence Bernard
- Defendant/Respondent: Robinson & Co (Singapore) Pte Ltd
- Legal Areas: Civil Procedure (striking out); Contract (contractual terms, implied terms); Employment Law (contract of service, constructive dismissal)
- Procedural Posture: Appeals against (i) striking out of the plaintiff’s claim and (ii) expunging paragraphs of the plaintiff’s affidavit
- Counsel: Plaintiff in person; M K Eusuff Ali and Lucinda Lim (Tan Rajah & Cheah) for the defendant
- Key Statutes Referenced: None stated in the provided extract
- Cases Cited (as reflected in the extract): 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
- Judgment Length: 4 pages; 2,140 words (as stated in metadata)
Summary
In Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2013] SGHC 279, the High Court (Woo Bih Li J) dismissed an employee’s appeals arising from two related decisions of an Assistant Registrar. First, the court upheld an order expunging two paragraphs of the employee’s affidavit, because the employee had effectively circumvented a prior discovery order that prohibited him from exhibiting certain redacted documents. Second, the court upheld the striking out of the employee’s substantive claim for damages for “constructive dismissal”.
The court’s substantive reasoning focused on contractual damages. Even assuming (as the employer did for the purposes of the striking out application) that the employee had been constructively dismissed, the court held that the employee’s damages were limited by the express termination regime in his Letter of Appointment (“LOA”). The employee’s attempt to claim additional damages for alleged “stigma” and discrimination—based on his sexuality—failed because his pleadings did not particularise a recoverable breach of an implied term of mutual trust and confidence, nor did they disclose a reasonable cause of action for losses beyond the contractual measure.
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 apparently tendered his resignation on 24 August 2012. The Employer paid him four months’ salary in lieu of notice and also paid cash for his unconsumed annual leave. This was notable because P’s employment contract stipulated a different notice-in-lieu payment: clause 4 of the LOA provided for two months’ salary in lieu of notice, without assigning reasons.
P’s case was that, although he tendered his resignation, the resignation was not voluntary. He characterised the situation as constructive dismissal. In particular, he alleged that the Employer persecuted him because he is homosexual. On that basis, he commenced an action on 6 December 2012 seeking damages for constructive dismissal.
Procedurally, the Employer responded with an application to strike out P’s claim. It filed Summons No 3064 of 2013 on 18 June 2013 with supporting affidavit evidence. P filed an affidavit in response on 15 July 2013. The Employer then brought a further application, Summons No 3969 of 2013 on 31 July 2013, to expunge paragraphs 28 and 29 of P’s affidavit.
Both summonses were heard by an Assistant Registrar on 6 August 2013. The Assistant Registrar ordered that paragraphs 28 and 29 of P’s affidavit be expunged and also struck out P’s claim in the main action. P appealed to the High Court via Registrar’s Appeal No 286 of 2013 (against the striking out) and Registrar’s Appeal No 287 of 2013 (against the expunging of the affidavit paragraphs). The appeals were heard together by Woo Bih Li J on 9 September 2013, and the judge dismissed both appeals.
What Were the Key Legal Issues?
The first issue concerned civil procedure and compliance with court orders in discovery. The question was whether P’s affidavit paragraphs should be expunged because they cited the contents of two documents that had been subject to a prior order restricting how P could use them. The Assistant Registrar had found that P had indirectly exhibited or relied on the prohibited contents, and the High Court had to decide whether that approach was correct.
The second, more substantive issue concerned the measure of damages in an employment contract context, particularly where an employee alleges constructive dismissal. Even if the court assumed constructive dismissal for the purpose of the striking out application, the court had to determine whether P could claim damages beyond the contractual termination payment specified in clause 4 of the LOA.
Related to this was the employee’s reliance on the doctrine of implied terms in employment contracts—especially the implied term of mutual trust and confidence. P sought to invoke principles from Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) to claim additional damages for “stigma” or disadvantage arising from the circumstances of termination. The legal issue was whether P’s pleadings disclosed a reasonable cause of action for such additional losses, and whether the alleged facts were sufficiently particularised as a breach of an implied term.
How Did the Court Analyse the Issues?
On the affidavit expunging application, Woo Bih Li J examined the history of discovery. P had earlier applied for discovery of documents where parts had been redacted. On 24 June 2013, an Assistant Registrar allowed P’s application in respect of two documents and ordered the Employer to disclose the redacted portions to P’s solicitors, but with an important limitation: P “may make reference to the said documents, but shall not exhibit the said documents, in any affidavit filed henceforth”. The judge treated this as a conditional permission to refer, not a permission to reproduce or cite the prohibited contents.
When P later filed his affidavit on 15 July 2013 in response to the strike out application, he included paragraphs 28 and 29 that 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 their contents. The judge agreed. He reasoned that the permission to “make reference” must be read together with the prohibition on exhibiting the documents. In substance, P was attempting to circumvent the order by citing the actual contents rather than merely referring to non-sensitive facts such as the existence or sending of the documents.
Accordingly, the High Court dismissed P’s appeal against the expunging order. The decision reflects a practical and principled approach: court orders regulating the use of disclosed material must be respected in substance, not merely in form. Where a party is restricted from exhibiting documents, citing their contents in an affidavit can amount to the very conduct the order sought to prevent.
Turning to the striking out of P’s claim, the judge approached the matter in a structured way. The Employer, for the purposes of the strike out application, was prepared to assume that P was constructively dismissed. That assumption did not, however, resolve the damages question. The court therefore focused on the contractual terms governing termination and the legal measure of damages for wrongful or constructive dismissal.
The LOA dated 2 October 2006 contained clause 4, which stipulated 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 reasons. The Employer’s position was that even if P had been constructively dismissed, the damages were limited to two months’ salary (subject to mitigation, though the judge’s analysis primarily addressed the contractual cap). The judge accepted the general legal framework relied upon by the Employer: where a contract expressly provides for termination upon a specified notice period, damages for wrongful termination are ordinarily measured by the wages for that notice period.
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. The Court of Appeal in Alexander Proudfoot explained that the normal measure is 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 earn elsewhere. It also emphasised that if the contract provides for termination on, for example, a month’s notice, damages ordinarily correspond to a month’s wages. The judge also noted that the Court of Appeal reiterated similar principles in Teh Guek Ngor Engelin nee Tan and others v Chia Ee Lin Evelyn and another [2005] 3 SLR(R) 22.
The judge then addressed P’s attempt to claim more than the contractual termination payment. P argued that he was entitled to damages beyond clause 4 by invoking Malik. In Malik, the House of Lords allowed a claim in the context of a preliminary issue, where the bank’s corruption and breach of an implied obligation of trust and confidence allegedly caused the employee to suffer stigma and loss of employability. The House of Lords treated such losses as potentially recoverable if they were reasonably foreseeable as a serious possibility arising from breach of trust and confidence.
However, Woo Bih Li J distinguished Malik and found it unhelpful to P. The judge emphasised that Malik was a case about whether the evidence disclosed a reasonable cause of action, and it proceeded on assumptions to expound the law of implied terms. In the present case, P was required to show a breach of the implied term of mutual trust and confidence. While P had pleaded such a breach, the judge found it to be a bare allegation: the statement of claim did not disclose particulars relevant to establishing the breach. In addition, P did not plead the necessary factual circumstances—such as whether the circumstances were known to others or whether they put him at a disadvantage in seeking employment elsewhere.
Crucially, the judge held that P’s “stigma” damages were not particularised as a breach of contract giving rise to financial loss. Without adequate pleading of the causal link and the breach, the Malik principle could not be used to expand damages beyond the contractually agreed termination measure.
The judge also articulated a broader policy concern. He reasoned that the bare fact of termination cannot be a basis for claiming damages other than what the employee would be entitled to under the contract for lawful termination, even if the termination is characterised as constructive dismissal. Otherwise, every employee could claim more than the contractual provision for lawful termination merely by alleging a breach of trust and confidence. That would undermine the contractual allocation of risk and the ordinary measure of damages for termination.
Finally, the judge noted that P had already received more than the contractual amount. While the extract truncates the remainder of the judgment, the reasoning up to that point indicates that the court treated the contractual payment already made as decisive against any claim for additional damages beyond clause 4, at least at the striking out stage.
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, because those paragraphs cited the contents of documents in a manner that circumvented the earlier discovery order restricting exhibition of the documents.
It also upheld the striking out of P’s substantive claim for damages for constructive dismissal. Even assuming constructive dismissal for the purposes of the application, P’s claim for damages beyond the contractual notice-in-lieu entitlement failed because his pleadings did not disclose a reasonable cause of action for recoverable “stigma” or other losses arising from a properly particularised breach of the implied term of mutual trust and confidence.
Why Does This Case Matter?
This decision is significant for employment and civil procedure practitioners in Singapore because it demonstrates two recurring themes in litigation strategy. First, it underscores that court orders governing discovery and the use of disclosed documents must be followed in substance. Parties cannot evade restrictions by indirect methods such as citing prohibited contents in affidavits. For litigators, this is a reminder to carefully align affidavit drafting with the precise wording of discovery orders.
Second, the case clarifies the limits of damages claims in constructive dismissal scenarios where the employment contract contains an express termination regime. The court reaffirmed that, as a general rule, damages for wrongful termination are measured by the wages the employee would have earned for the contractual notice period, subject to mitigation. Attempts to claim additional damages must be grounded in properly pleaded contractual breaches and causation, not in general allegations.
From a doctrinal perspective, the judgment also provides guidance on the use of Malik. While Malik recognises that certain losses may be recoverable where there is a breach of an implied obligation of trust and confidence causing foreseeable stigma-related disadvantage, Wee Kim San Lawrence Bernard shows that such claims require careful pleading of particulars. Bare assertions of discrimination or stigma, without factual particulars showing how the breach caused employability disadvantage and without a coherent contractual basis, will not survive a striking out application.
Legislation Referenced
- No specific statutes were referenced 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.