The country is 22 days into the Movement Control Order (MCO) in attempts to contain the spread of the COVID-19 coronavirus, and as yet, we are uncertain if the MCO will be extended.
I decided to come up with this simple Q&A in aid of pupils-in-chambers and young lawyers whose employments have been affected by the MCO but are uncertain about the legality of certain actions taken by their employers.
If you are one of the unfortunate ones who have been affected, I hope this will be helpful. Do try to speak to your employer to arrive at a mutually acceptable arrangement.
These are merely my views, hence the usual disclaimer applies. This Q&A is no substitute for independent legal advice. This Q&A is also subject to your contract, which should be your first point of reference.
I should add that there are different views on some of the issues raised here, so you would need to consider those views too.
Q1: Can my employer refuse to pay me during the MCO?
A1: Check if your contract contains a force majeure clause or any other clause that allows your employer to suspend his/her obligation to pay you.
A force majeure clause excuses parties to a contract from one or more contractual obligations due to unforeseen events such as wars, natural disasters, epidemics etc.
If there is such a clause, you would have to rely on the contractual provisions.
If there isn’t, your employer must pay you during the MCO. Your employer’s obligation to pay your salary is not dependent on the provision of work. In other words, if you are not given any work by your employer, your employer is still obligated to pay your salary in full.
Both the Bar Council Industrial and Employment Law Committee and the Ministry of Human Resource share a similar view.
Q1.1: My employer is arguing that the payment of my salary is contingent on the work done but the MCO prevents me from working. What then?
A1.1: The MCO does not ex facie make working an offence. It merely prevents traveling from one place to another. Legal service, with the use of technology, can be performed remotely from one’s own home. Most legal work does not require much traveling or being physically present in the office.
Some work may be impossible such as servicing documents or affirming affidavits, but surely drafting, researching, liaising with, or advising clients is possible.
Therefore, as far as law firms are concerned, the MCO cannot be used to support the argument that employees are prevented from working.
Q1.2: My employer is arguing that my contract has been frustrated so I do not have to be paid. What then?
A1.2: Frustration has no application here. The supervening event, which is the MCO, is only for four weeks. It does not render the entire contract incapable of being performed for reasons already stated above.
Further, the contract is still being performed at other times apart from the duration of the MCO. Therefore, this is not an impossibility per se. There is no such thing as a temporary frustration of contract. It is all or nothing.
Q2: Can my employer force me to go on unpaid leave during or after the MCO?
A2: No, unless otherwise provided for in your employment contract. Taking leave is a contractual right of the employee. Your employer cannot unilaterally force you to go on unpaid leave. Additionally, forcing you to go on unpaid leave could be seen as your employer avoiding the obligation to pay your salary.
Q3: Can my employer unilaterally reduce my salary during or after the MCO?
A3: No, unless otherwise provided for in your contract. A unilateral reduction of your salary would amount to a breach of a fundamental term of your contract. Any reduction in salary must be mutually agreed upon by you and your employer.
Q4: Can my employer terminate my employment because of the MCO?
A4: No, unless otherwise provided for in your contract. If you are terminated as a result of the MCO, it could amount to unfair dismissal by your employer. That being said, retrenchment is possible if your employer is no longer able to sustain the firm, though this must be done in good faith.
Q5: What options are available to me if any of the above happens?
A5: If your employer refuses to pay you/reduces your salary/forces you to go on unpaid leave, it could amount to constructive dismissal. If you have been terminated, it could amount to unfair dismissal. If any of these occur, you may lodge a complaint with the Director General of Industrial Relations.
Q6: I’m a pupil, would my position be different from a lawyer’s?
A6: Yes, your position would be different from a lawyer’s because pupils are not considered employees. Pupillage is a form of apprenticeship. You are paid an allowance instead of a salary. The option of lodging a complaint with the Director General of Industrial Relations is not available to you.
It is indeed an unfortunate position that you find yourself in. If you have a contract governing your pupillage, you could perhaps argue for a breach of contract in the event any of the above happens. Reforms to this outmoded system is urgently needed.