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Employer Might have Cause for Dismissal
Under the Ministry of Manpower, MOM, maternity guidelines, Ember would be entitled to maternity benefits as she would have worked for her employer for at least 180 days before her child’s birth. However, these benefits might not have been clearly communicated to her by her employer. For example, does the ‘time-off’ taken for regular check-ups by Ember constitute as maternity leave? If so, since these are taken flexibly over a period, under the maternity guidelines, Ember’s employer might have cause for dismissing her.
Also, besides maternity leave, what are the other maternity benefits that Ember is eligible for? Are these benefits part of the pro-family benefits in the company? Esther needs to clarify what the company’s maternity benefits are, to assess whether there is a breach of contract and violation of her employment rights before she decides to take any legal action.
Ambrose should have retained Ember till she is due for confinement. MOM should make it mandatory for employers to communicate to their female employees what exactly their maternity benefits are, so that they will not be placed in a limbo when faced with a similar situation such as Ember’s.—Contributed by Ong Kian Hui
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No Breach of Contract
There is no breach of contract as Ember has worked less than 180 days before the child’s birth. The foetus only about four months old so she is not entitled to maternity benefits. A typical appointment letter does not state specific maternity guidelines.
Ambrose can help by negotiating for more compensation for Ember, an extra month of salary for example, or by recommending some part-time assignments for her.
MOM should shorten the entitlement period for maternity benefits to 90 days before the child’s birth. In line with Baby bonus scheme, it should encourage working through flexi-hours or work from home schemes.—Contributed by Rachel Low, Xiuling, and Iris
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Pay out of Goodwill
The Children Development Co-Savings Act stipulates that the employer may not dismiss an employee who has taken maternity leave. In addition, maternity benefits should be accorded if dismissal is within three months from confinement. Ember Seet was only six to seven months pregnant at the time of dismissal and the reason for dismissal was due to downsizing on a last-in-first-out basis. Therefore, on all counts, there is no violation of the law and the dismissal was justifiable.
However, presumably Ember has been a good and reliable worker, and thus had been receiving full support from her supervisor, Ambrose de Souza. As such, being a good employer, the company should have paid her, as part of retrenchment benefit, the two months of pay in lieu of the maternity benefits even though she is not entitled to it under the law. The payment will also serve as recognition for her hard work and as financial assistance while she waits for her delivery of her child before she is able to find another job.—Contributed by Jessie Heng Hwee Koon
No Violation of Employment Rights
Ember assumed that her service was terminated due to her pregnancy. Despite Ambrose’s reasoning, Ember felt that her retrenchment was unjustified.
It seemed that Ember‘s employment rights have not been violated as there is no breach of contract. The following extracts from the Employment Act justify our views:
• Termination of Service
Ember’s employer has the rights to terminate her services due to reorganisation of the company structure which is based on the policy of ‘last-in-first out’.
• Retrenchment Benefits
Retrenched employee can request for the benefits if she has been employed for at least three years. However, Ember was compensated a month’s salary with addition of $500 out of the employer’s goodwill despite being employed for less than a year.
• Children Development Co-Savings Act
Despite being covered under the Act, Ember is not eligible for the maternity benefits because she was dismissed before her confinement. Thus, her employer does not need to compensate her.
It is not easy for a pregnant job seeker to gain employment. The MOM maternity guidelines could be improved by:
• Prohibition of dismissal or retrenchment of pregnant employees at any stage
• If need be, there must be valid reasons for termination. The employer has to pay maternity benefits that she is eligible for and pay for medical check up expenses incurred till delivery of the child, and
• Heavier fine should employer flout the law: Increase the fine from $1,000 to $5,000.
There are many ways that Ambrose could help Ember. Firstly, the company could continue to employ Ember on contract with emoluments. The company could also implement a shorter work-week for Ember. Ambrose could also refer Ember to his contacts in a similar field with a strong testimonial.—Contributed by Fion Tan, Dayana Eddy, Lim Seok Yin, and Zuhrah bte Assinar
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