Dong Wei v Shell Eastern Trading (Pte) Ltd

JurisdictionEngland & Wales
JudgeBelinda Ang Saw Ean JAD,Woo Bih Li JAD,See Kee Oon J
Judgment Date24 February 2022
CourtHigh Court
Docket NumberCivil Appeal No 14 of 2021
Dong Wei
and
Shell Eastern Trading (Pte) Ltd and another

[2022] SGHC(A) 8

Belinda Ang Saw Ean JAD, Woo Bih Li JAD and See Kee Oon J

Civil Appeal No 14 of 2021

Appellate Division of the High Court

Employment Law — Contract of service — Employers' duties — Duties in relation to commencing and conducting disciplinary investigations — Duties in deciding to suspend or keep employee suspended — Duties in connection with exercising express power of termination — Whether implied term of mutual trust and confidence existed in Singapore law

Employment Law — Termination — Termination pursuant to express contractual power to terminate with notice or pay in lieu of notice — Whether express power to terminate contract of employment limited by prohibitions against arbitrariness, capriciousness, or bad faith

Tort — Negligence — Res ipsa loquitur — Leaking of information regarding conduct and character of confidential disciplinary investigations — Leaked information resulting in publication affecting reputation — Whether presumption of res ipsa loquitur could be applied to cases involving leak of confidential information

Held, dismissing the appeal:

(1) The appellant failed to establish that he suffered any legally remediable loss in so far as the First and Second Heads of Loss were concerned. As to the first, the appellant had been paid his salary for the entire period of his suspension. In respect of the second, the “minimum legal obligation” rule imposed a limit on claims for damages suffered as a result of being wrongfully terminated. That was, the amount the employee would have earned had his employment contract been lawfully terminated; typically, this was the amount of notice which the employee was entitled to receive. Since the appellant received salary in lieu of notice, he could not point to any remediable losses: at [20] to [22].

(2) In any event, even if the appellant had managed to establish any legally recoverable losses, he failed to establish the various causes of action brought. In particular, the upshot of his decision not to appeal the Judge's dismissal of the action against Lim for inducing Shell's breach of contract, and the claim against Shell for mismanaging the investigation, meant that he accepted factual findings which undermined the other claims directed at recovering the First and Second Heads of Loss. These were the claims against Lim for malicious falsehood, against Shell for wrongful suspension, and against both respondents for conspiring to cause him harm by unlawful means: at [24] to [28], [33], [35] to [37] and [41] to [47].

(3) The appellant's pleaded case for the Third Head of Loss only included his action in negligence against Shell, and a complaint that Shell refused to disclose the outcome of the investigation to him in breach of contract: at [48] and [49].

(4) As regards his claim in negligence, the appellant sought to rely on the maxim res ipsa loquitur to prove that Shell breached its duty of care. This maxim, which was just a form of evidential inferential reasoning, only applied to cases where there was insufficient direct evidence to establish the cause of an accident or injury. It did not extend to leaks of confidential information, and even if it did, the requirements for its application were not satisfied: at [51] to [56].

(5) In respect of his claim in contract, irrespective of whether Shell had informed the appellant of the outcome, that would not have aided his search for a new job. That said, though it did not give rise to a remediable claim, Shell's refusal to disclose the outcome to the appellant, the very subject of the investigation, was disappointing. Issuance of a formal letter aside, there was no reason for Shell to refuse even to verbally tell the appellant the outcome of the investigation. This act lacked sense and sensibility: at [58], [59] and [66] to [68].

(6) The claims which the appellant failed to plead, and which he sought to raise on appeal, involved disputes of fact which should have been pleaded and proven. Without the pleadings, evidence, or established facts to assess these claims, they could not be properly considered: at [60] to [64].

[Observation: The appellant's numerous claims for breach of contract were founded on the basis of the implied term of mutual trust and confidence (the “implied term”). The existence of this term as a matter of Singapore law, however, had not been settled by the Court of Appeal, and accordingly, the appellant's appeal was dealt with entirely on its facts: at [69].

The term was clearly accepted in Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd[2013] 2 SLR 577, amongst several other High Court cases. However, it was not so clearly established on the Court of Appeal's decision in Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd[2014] 4 SLR 357 (“Wee Kim San”). First, Wee Kim San did not formally endorse the existence of the implied term. Second, its discussion of the implied term was substantially limited by the procedural and factual context of the case. Procedurally, the case concerned an application to summarily strike out the appellant's (an employee) claims on the basis that the implied term had been breached. It did not concern a fully tried dispute. Factually, the Court of Appeal only considered the case before it on the hypothetical basis that the implied term existed in Singapore law, to explain that, even if that had been the law, the appellant's claims would still have been legally unsustainable: at [70] to [74].

Furthermore, there was reason to question whether the implied term should be applied outside the United Kingdom (“UK”). In Commonwealth Bank of Australia v Barker(2014) 312 ALR 356 (“Barker”), the High Court of Australia firmly rejected the existence of the implied term on the basis that it arose from the unique context of the UK's legislative framework on unfair dismissal, and that it was not necessary to secure the effective operation of employment contracts: at [75] to [77].

That said, though this was how the implied term was conceived, this did not necessarily restrict its existence in a jurisdiction without such legislation. As an implied term, it could exist independent of the specific legislative backdrop against which it was developed, so long as its scope was delineated, and the appropriate remedial consequences which should follow from its breach was elucidated. The term therefore could exist in Singapore. However, given the strong views expressed in Barker, as well as the fact that the Court of Appeal itself, in The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd[2015] 3 SLR 695, took the view that the position remained an open one, the issue was reserved for the apex court to resolve in a more appropriate case: at [78] to [82].

Separately, the appellant sought to persuade the court that the law should impose a prohibition against arbitrariness, capriciousness, and bad faith, so as to restrict an employer's discretion in deciding to exercise its right to terminate employees pursuant to an express contractual clause. The case on which he relied was Leiman, Ricardo v Noble Resources Ltd[2018] SGHC 166, which in turn relied on Braganza v BP Shipping Ltd[2015] 1 WLR 1661. This line of cases did not concern an employer's right to bring a contract to an end; they only applied to restrict contractual discretions relating to rights subsisting within the performance of the contract. Extending such restrictions to the contractual right to bring an employment contract to an end would not only curtail the parties' fundamental freedom to contract as well as exit contracts, it would enable employers, conversely, to refuse to accept an employee's resignation and compel them to work. It was trite that employers could not be forced to hire or retain an employee, but more importantly, employees could not be compelled to work. Accordingly, this was not an acceptable direction to develop the law: at [23], [84], [87], [88] and [91] to [93].]

Case(s) referred to

Alexander Proudfoot Productivity Services Co S'pore Pte Ltd v Sim Hua Ngee Alvin [1992] 3 SLR(R) 933; [1993] 1 SLR 494 (folld)

Arul Chandran v Gartshore [2000] 1 SLR(R) 436; [2000] 2 SLR 446 (refd)

Brader Daniel John v Commerzbank AG [2014] 2 SLR 81 (refd)

Braganza v BP Shipping Ltd [2015] 1 WLR 1661 (refd)

Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577 (refd)

Commonwealth Bank of Australia v Barker (2013) 214 FCR 450, FC (Aust) (refd)

Commonwealth Bank of Australia v Barker (2014) 312 ALR 356, HC (Aust) (refd)

Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2018] 1 SLR 76 (refd)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2018] 2 SLR 866 (folld)

Leiman, Ricardo v Noble Resources Ltd [2018] SGHC 166 (refd)

Leong Hin Chuee v Citra Group Pte Ltd [2015] 2 SLR 603 (refd)

Ludgate Insurance Co Ltd v Citibank [1998] Lloyd's Rep IP 221 (refd)

Malik v Bank of Credit and Commerce International SA [1998] AC 20 (refd)

MGA International Pte Ltd v Wajilam Exports (Singapore) Pte Ltd [2010] SGHC 319 (refd)

One Suites Pte Ltd, The v Pacific Motor Credit (Pte) Ltd [2015] 3 SLR 695 (refd)

Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 2 SLR(R) 407; [2000] 3 SLR 405 (folld)

Tullett Prebon (Singapore) Ltd v Chua Leong Chuan Simon [2005] 4 SLR(R) 344; [2005] 4 SLR 344 (refd)

Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua [2018] 2 SLR 655 (folld)

Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2014] 4 SLR 357 (refd)

Western Excavating (ECC) Ltd v Sharp [1978] QB 761 (refd)

Wong Leong Wei Edward v Acclaim Insurance Brokers Pte Ltd [2010] SGHC 352 (refd)

Wong Sung Boon v Fuji Xerox Singapore Pte Ltd [2021] SGHC 24 (folld)

Facts

The appellant was a “Senior Freight Trader” employed by the first respondent (“Shell”), and the second respondent (“Lim”) was his line manager. On 29 September 2017, the appellant placed a direct call to an oil and gas trader...

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