Singapore: Allegations Of Whistleblowing In Wrongful Dismissal Claims

Bhuta Viral Ashok v UTI International (Singapore) Private Limited and others [2021] SGDC 109    

In Bhuta Viral Ashok v UTI International (Singapore) Private Limited and others [2021] SGDC 109, the Singapore District Court rejected the plaintiff ex-employee's claim that his dismissal from employment had been a retaliation for his "whistleblowing" actions, after a detailed scrutiny of the available evidence. This case may be one of the first reported decisions where the Court examined the circumstances under which a complainant would be deemed a genuine whistleblower, such that the complainant may avail himself to the relevant contractual protections afforded to whistleblowers commonly found in the policies of large organisations. 

Facts

DC/DC 2058/2017 ("DC 2058") was an action by the plaintiff ex-employee against the defendants for wrongful dismissal, defamation, and conspiracy to injure. 

The Plaintiff was an ex-employee who had been employed by the Company as a "Portfolio Manager – Fixed Income" and registered as a capital markets services representative with the Monetary Authority of Singapore ("MAS"). Sometime in December 2015, the defendant company ("Company") terminated his employment following an investigation into allegations of misconduct made against the Plaintiff by several of his colleagues. Due the allegations of misconduct against the Plaintiff, the Company had to make the necessary reports to MAS in respect of the investigations and the Plaintiff's termination.

Following the termination of his employment and aggrieved by the reports to MAS, the Plaintiff embarked on a massive campaign against the Defendants and in particular, the CEO of the Company (named as the 2^nd Defendant in DC 2058). In DC 2058, the Plaintiff made bold claims that the investigations into his conduct and subsequent termination of his employment was a conspiracy instigated by the 2^nd Defendant against him (amongst other things). The crux of the Plaintiff's case was that his termination was a retaliation by the 2^nd Defendant because the Plaintiff had sent 2 allegedly "whistleblowing" emails to an independent director of the Company complaining about the 2^nd Defendant's conduct. The Plaintiff further claimed that he was entitled to "whistleblower" protection under the Company's Personnel Policy.  

The District Court of Singapore dismissed the Plaintiff's allegation that his dismissal had been a retaliation on the part of the 2^nd Defendant and dismissed the Plaintiff's claims of defamation and conspiracy. In particular, the District Court found that the Plaintiff was not a genuine whistleblower, as the 2 allegedly "whistleblowing" emails sent by the Plaintiff were in reality nothing more than the Plaintiff's personal grievances against the 2^nd Defendant.  In its judgment, the Court considered that "To determine if the plaintiff was indeed a genuine whistleblower entitled to protection under the Personnel Policy, the substance of his allegations and the circumstances under which they were made need to be examined. If it is found that the matters complained of were untrue or merely grievances of a personal nature on the part of the plaintiff, then the plaintiff cannot be regarded as a whistleblower with the consequence that UTI ought to be entitled to take action as appropriate under the terms of the Employment Agreement."¹

The District Court however granted the Plaintiff a declaration that he had been wrongfully dismissed, as the reasons for dismissal set out in the termination email to the Plaintiff had not been proven to the Court's satisfaction. The Plaintiff was, however, not entitled to damages because the Company had paid the Plaintiff more than he would have been entitled to had the Company dismissed the Plaintiff by giving the requisite contractual notice, following the least onerous obligation rule affirmed by the Singapore Court of Appeal in Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2014] 4 SLR 357.  

The Plaintiff appealed the District Court's decision not to award him damages on the basis that the District Court was wrong to find that he was not a genuine whistleblower. The Plaintiff's appeal was dismissed by the High Court in October 2021.

Significance

This case is significant in that it may be one of the first reported cases in Singapore where Court shed light on the circumstances where a complainant may be said to be a genuine whistleblower, so as to avail himself to the relevant contractual protections found in the organisation's internal policies. In cases where wrongful termination is alleged, it is not uncommon for the ex-employee to claim that he had been terminated as a retaliation for his alleged "whistleblowing" activities (see for example, Long Kim Wing v LTX-Credence Singapore Pte Ltd [2017] SGHC 151). The present case may provide an insight into what the Court will consider genuine "whistleblowing", where such allegations are raised.

Also, this case serves as a timely reminder that where an employer seeks to terminate an employee for cause, or chooses to provide reasons for termination, such reasons should be well substantiated and well referenced to illustrations of misconduct which may be found in the employer's employee handbook / personnel policies.

Our partners Probin Dass and Charles Lim represented the 1^st, 2^nd & 4^th Defendants in DC 2058 and the Plaintiff's appeal proceedings (unreported).

Footnote

1. [2021] SGDC 41 at [121]

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