What are top mistakes made by HR when firing employees?

Terminating employees is never easy. If employees feel they have been unfairly fired, a successful appeal to the Ministry of Manpower for dismissal claims could prove costly for the organisation.

HRD consulted Thomas Choo, partner at Clyde & Co to find out the top mistakes Singapore employers make and what HR can do to prevent them.

What are top mistakes employers in Singapore make when firing someone?
When firing for misconduct:

-Not conducting an inquiry into the act of misconduct

-Not fully understanding what actually constitutes "misconduct"

When firing for poor performance:

- Not giving the employee an opportunity to improve

- Not discussing with the employee to understand why performance is poor (as there may be legitimate reasons associated with that)

How can HR determine what is "fair grounds" or a justifiable reason for firing?
It is common for employment contracts in Singapore to have provisions on termination with notice – without an expressed requirement for providing reasons for termination, and in some cases termination with cause as well.

If HR decides to terminate an employee's contract by relying on the termination notice provisions, there is no legal requirement for HR to provide a reason, unless the contract states that a reason must be given.

The Ministry of Manpower however encourages employers to explain their reasons for termination so that the employee can better understand the situation and achieve closure. 

In relation to poor/non-performance, it is an implied term in Singapore that the employee must be competent – you must ultimately be good at what you are meant to be employed for.

If the employee misrepresents that they have a specific skillset which the employer is specifically looking for, there is a good chance that the employer can legally terminate them for incompetency and poor performance.

However, in most cases these would usually fall under the termination with notice provisions under the underlying employment contract.

What are some of the legal risks of making such mistakes when firing staff? How can HR prevent such risks?
The employee may have a valid claim against the employer for unfair dismissal. A legal consequence of that would be for the employer being forced to reinstate the employee in their former position or for the employer to pay monetary damages to the employee as compensation.

HR should always first review the affected employee's employment contract and any employer handbooks to check if there is anything to bear in mind for the termination.