F&B employers may terminate unvaxxed employees for being unable to enter the workplace to perform their duties. Here’s how to do it.
Estimated reading time: 7 minutes
From 15 January 2022, those who are unvaccinated may no longer enter their place of work. Even with a negative PET result, they cannot access their workplace. There may not be much change where employees can perform their roles remotely. But there are roles that absolutely require the employee’s physical presence. In the F&B world, it is obvious that such roles include service workers and chefs.
F&B businesses will find it difficult to redeploy front facing staff to backend roles. Most back-of-house roles require specific expertise such as accounting, finance, business management, marketing, and HR. F&B owners cannot simply give unvaccinated servers a work-from-home role. It just is not that easy.
The Ministry of Manpower (“MOM“) recognised that firing unvaccinated employees due to their inability to work in the workplace (“Unvaxxed Dismissal“), would not amount to wrongful dismissal. This announcement comes as a relief to all employers, who are already facing tremendous pressures in the pandemic. However, there appear to be some protocols that MOM wishes employers to follow.
MOM ADVISORY ON UNVACCINATED EMPLOYEES
MOM observed in its advisory on Covid-19 vaccination at the workplace (“MOM Advisory“) that “prolonged absence of the unvaccinated employees from the workplace may affect their individual performance as well as negatively impact team and organisational performance.”
It thus said that Unvaxxed Dismissal would not be grounds for claiming wrongful dismissal. This is provided that employers first consider redeploying these employees to other roles or placing them on no pay leave in accordance with mutually agreed terms.
An Unvaxxed Dismissal must be made with notice.
WHAT IS WRONGFUL DISMISSAL
Wrongful dismissal is terminating an employee “without just cause or excuse”: section 14(2), Employment Act. An employee may lodge a claim with the Employment Claims Tribunal for wrongful dismissal after first submitting to mediation: section 3 read with section 13, Employment Claims Act.
The law allows for dismissal without notice only for misconduct, and only after due inquiry into that misconduct: section 14(1), Employment Act. Therefore dismissal without notice for reasons other than misconduct would be wrongful. Dismissal with notice could also be wrongful in circumstances that do not justify termination.
The Tripartite Alliance for Fair and Progressive Employment Practices (“TAFEP“) lists out here, examples of wrongful dismissals.
*TAFEP is a tripartite alliance between MOM, NTUC and SNEF.
Unsubstantiated poor performance
Of note is that TAFEP cites “unsubstantiated poor performance” as a ground for wrongful dismissal. TAFEP explains that dismissal with notice for poor performance would not be wrongful if substantiated with records of the employee’s poor performance leading up to the dismissal.
It is not clear from the MOM Advisory whether employers must show that the absence of an unvaxxed employee affects his individual performance as well as negatively impacts team and organisational performance. It is possible that an employee who performs well remotely and does not negatively impact the business by his absence, cannot be subject to Unvaxxed Dismissal.
Discrimination
TAFEP also cites discrimination as a ground for wrongful dismissal. Discrimination may be shown by pointing to the employer’s past discriminatory behaviour or remarks about the employee.
Given that MOM declared Unvaxxed Dismissal not wrongful, it is thus not a form of discrimination. MOM also states in its FAQ that employers can impose vaccination as a requirement during recruitment. In fact, vaccinated differentiation measures are all the rage now. Discrimination according to vaccination status is an acceptable norm.
Notice
TAFEP clarifies that an employer can terminate an employee with notice in accordance with the employment contract. The employer does not need to provide any reason for termination with notice. If the employer offers no reason, dismissal is presumed not wrongful, unless the employee can point to conduct by the employer that suggests otherwise.
Based on TAFEP’s guidelines, an employer can presumably choose not to provide a reason at all if the dismissal is an Unvaxxed Dismissal.
HOW SHOULD EMPLOYERS ACT?
So how should F&B employers carry out an Unvaxxed Dismissal? TAFEP is silent on this. The MOM Advisory appears to be the only document that provides some information on the matter. To be the test case before the Employment Claims Tribunal for wrongful dismissal of an unvaccinated employee would be time consuming, embarrassing and potentially expensive. Employers ought to therefore proceed with caution, despite MOM’s sweeping acceptance of the Unvaxxed Dismissal.
Based on the MOM Advisory, here’s what you need to show: (1) the unvaxxed employee’s job performance is affected by his inability to show up and negatively impacts team and organisational performance, (2) there are no work-from-home roles available or suitable for the employee, and (3) the terms of no pay leave cannot be agreed upon.
Affected performance
Erring on the side of caution, and referring to TAFEP’s guidelines on poor performance dismissal, employers should be careful to state in writing that any Unvaxxed Dismissal is based on affected performance! When issuing an Unvaxxed Dismissal, explain to your employee in writing that his unvaccinated status prevents him from doing his job in F&B service. State all the consequences resulting from his inability to show up for work. For example, he is unable to perform his service duties and the team is therefore short-handed, unable to assist customers promptly.
Employers must consider redeploying the employee and offer no pay leave arrangements before issuing an Unvaxxed Dismissal. While you explore those options, write to encourage your unvaxxed employee to vaccinate and state that his unvaxxed status is affecting his performance and negatively impacting the business. Let him know that you will be considering redeployment and no pay leave, but that he should know about his affected performance.
The more times you explain affected performance to your employee, the less likely for any misunderstanding. The letter issued upon Unvaxxed Dismissal should, ideally, not be the first time you mention affected performance in writing. You do not want any possibility that lack of warning could obliterate your entitlement to issue an Unvaxxed Dismissal.
Redeployment of unvaxxed employees
When you consider redeployment, also have this thought process written down. Write a letter to your unvaxxed employee to state the various roles you considered and why they are not suitable for F&B service staff. You want your employee to know that you have contemplated the work-from-home option.
No pay leave
No pay leave should be considered on mutually agreed terms. Which means you can offer your terms and see if your unvaxxed employee accepts or counter-offers. For example, you can offer no pay leave for the time it takes your unvaxxed employee to fully vaccinate. Put a long stop date to this according to the time schedule of the vaccine your employee elects to take. If your employee refuses to select a vaccine, you may decide that no pay leave is not on the cards. Again, have this all down in writing.
UNVAXXED DISMISSAL
Do all the above. If an unvaxxed employees shouts wrongful dismissal, you have it all written down when you observed affected performance, considered redeployment, offered no pay leave, and finally issued the Unvaxxed Dismissal.
Remember: the more you document the process, the easier it would be for you to show no basis for wrongful dismissal.
*All references to “he” apply equally to “she” and all non-binary genders.
