When HR disputes arise, the ideal resolution is one which the employer and employee work out themselves through a fair, prompt and sensitively-handled company grievance process.
However, where the parties cannot resolve things themselves, they can turn to external dispute resolution processes for help. These are:
Adjudication, where a judge decides on the outcome of the dispute; and
Mediation, where a mediator helps the parties arrive at their own resolution.
Mediation is an alternative way of resolving disputes. In this process, a neutral third party called the mediator facilitates “assisted negotiations” between the disputants and guides them towards a mutually beneficial settlement. The mediator, is trained to help the disputants move beyond hostile positions to prioritise their key interests and secure the best possible outcome for themselves. Mediation is an informal process, and trained and skilled mediators are often able to narrow down the main issues in dispute and help parties disentangle their positions which are usually fraught with emotions.
The Singapore Mediation Centre (SMC), established in 1997, provides mediation services for any type of civil disputes. SMC continues to offer private mediation for parties in HR disputes, in a confidential setting. Employers and employees now have additional avenues for external dispute resolution through the Tripartite Alliance for Dispute Management (TADM) and the Employment Claims Tribunal (ECT) which began on 1 April 2017. TADM offers advisory and mediation services to help employers and employees resolve their disputes amicably. TADM's advisory services guide employees on options for managing employment disputes, while its mediation services are a one-stop shop for employment disputes.
Mediation for salary-related claims
Mediation is mandatory for certain "specified employment disputes" covering salary-related claims under contract or statute before such claims can be referred to the ECT. There are 61 "specified" claims comprising 18 contractual claims (such as salary and overtime pay) and 43 statutory claims (such as maternity leave pay and holiday pay). All employees may bring such claims, except domestic workers, public servants, and seafarers. Employers too can claim salary in lieu of notice from employees.
There are certain other requirements: no legal representation is allowed; requests for mediation must be made within time limits – 6 months from employment termination, or where the employment is on-going, 1 year from when the claim arose; and claim caps are set at S$20,000, or S$30,000 for mediation involving the unions. A non-refundable registration fee of S$10 or S$20 will apply, depending on whether the claim is up to or exceeds S$10,000.
When a dispute is resolved, a written settlement agreement is signed, which parties may register as a binding order with the District Court. If the dispute is not resolved, a claim referral certificate will allow the claim to be brought within 4 weeks to the ECT.
The ECT is part of the State Courts and is judge-led. Like TADM, the ECT is designed to be affordable and expeditious. Fees are S$30 or S$60 depending on whether the claim is up to or exceeds S$10,000. Parties use prescribed forms and must conform to a relatively quick timetable for the claims process. Legal representation in the ECT is also not allowed.
Mediation for statutory dismissal appeals
TADM also handles mediation for dismissal appeals under employment legislation such as the Employment Act, Retirement and Re-employment Act and the Child Development Co-Savings Act upon referral by the Ministry of Manpower. The mediation sessions for these types of disputes are conducted by TADM’s own in-house mediators.
Mediation for other employment disputes
TADM offers mediation for other employment disputes outside the jurisdiction of the employment legislation and Employment Claims Act where civil action has not started. In a pilot programme started in September 2016, TADM has handled more than 50 cases with 80% successfully resolved.
TADM collaborates with SMC to offer mediation of such employment disputes. Under this collaboration, SMC will assign its mediators to disputes referred by TADM. SMC has had 20 years of experience in facilitating the mediation of disputes and has a pool of trained and skilled mediators that lends itself as the partner of choice.
Mediation is affordable and expeditious. A non-refundable registration fee of either S$40 or S$60 applies depending on whether the employee's last drawn monthly income is up to or exceeds S$10,000 respectively. Mediation is also speedy, with an expected duration of about 4 hours per mediation.
The mediation process is well-suited to resolving HR disputes as it allows disputing parties to address the deeper concerns that usually underlie such disputes with the assistance of a neutral third party. It is quick and inexpensive, and offers parties the chance of an outcome they have control over and which makes sense for them.
For more information on TADM: www.tadm.sg/mediationguide/
For more information on SMC: www.mediation.com.sg
- Susan de Silva, Consultant, Bird & Bird ATMD LLP -
- Sabiha Shiraz, Deputy Executive Director, Singapore Mediation Centre -