I would hate to see the suit by Faith Community Baptist Church (FCBC) succeed, for its success would mean a major expansion of the meaning of “freedom of religion”. At the same time, I am quite sympathetic to the church’s decision to sack an employee — which started this whole controversy. Based on the limited information revealed publicly so far, I feel it should have the right to sack her, but not on the grounds claimed in its application for judicial review. This is why I think the suit should fail.
First, some bare-bones recounting of the background.
It was reported on 20 August 2013 that the Ministry of Manpower had ordered the church to compensate an employee (so far not named publicly?) whom the church had sacked in September 2012. The ordered compensation amount was $7,000. The employee was alleged to be in an “adulterous” relationship — though she had apparently separated from her husband by then — and was pregnant with a child by the lover, a fellow employee of the same church, who had since resigned.
The basis for ordering the compensation was apparently a technical one.
The ministry said that it looked into the complaint and found that the woman was “dismissed without sufficient cause within six months of her delivery date”.
– Straits Times, 20 August 2013, Compensate woman fired for adultery, church told
This would be a reference to Section 84 of the Employment Act which says that if a pregnant woman with less than six months to go before delivery is sacked “without sufficient cause”, she should be compensated with an amount she would otherwise be earning up to her confinement.
Despite the ministry seeming to make a final judgement on it, I think the question of whether there was sufficient just cause is very much alive. Today newspaper had more detail, pointing out that the employee was
. . . the “designated representative” to meet couples seeking to wed — and to explain what was required of them — and thus her employment “bears sufficient or close proximity” with its mission, the church added.
It described her adulterous sexual relationship with the divorced male colleague as “sinful, inappropriate and unacceptable”, and said she had also “misled and lied” to church managers about the affair. The church said it terminated her employment due to “sexual misconduct and her persistence on it”, and her refusal to abide by conditions the church had set after her affair was uncovered.
When her colleagues and supervisors came to know that she was carrying the child of her illicit lover — while she was separated from her ex-husband — she refused to “confess and repent, to cease her sexual misconduct, and to come under the discipline of the pastors to assist her throughout the term of her pregnancy thereafter”.
In his affidavit, the church’s former Chief Operating Officer Jonathan Ow Kim Chuan said he assured the female staff that the church was “willing to work with (her)” to help her keep her job, on condition that she showed “true repentance” and stopped the affair. She agreed to the conditions, but went back on her word, Mr Ow said. He added that he was questioned by an employee how the church could “condone such immoral behaviour, bearing in mind that (the pregnant staff) was working in the department of the church which oversaw matters relating to weddings and marriages”.
– Today, 3 October 2013, Church ‘seeking guidance’ on what constitutes religious affairs
However, you must read the above with care, since the news report is based on a statement issued by the church. But if this narrative of the facts is more or less correct, then it indeed raises the question of just cause. It would be linked to a broader — and in terms of the public interest, a very important — question about the extent to which one’s personal life is expected to dovetail with a job.
FCBC should be able to challenge the government’s order over this and it would do the public a considerable service if the courts were asked to address this question.
Unfortunately, this is where we come up against the “executive imperium” that is Singapore. Sections 84(3) and (4) of the Employment Act say
84(3) Where the Minister is satisfied that the employee has been dismissed without sufficient cause, he may, notwithstanding any rule of law or agreement to the contrary —
(a) direct the employer to reinstate the employee in her former employment and pay the employee an amount equal to the wages that the employee would have earned had she not been dismissed by the employer; or
(b) direct the employer to pay such amount of wages as compensation as the Minister may consider just and equitable having regard to all the circumstances of the case,
and the employer shall comply with the direction of the Minister.
(4) The decision of the Minister under subsection (3) shall be final and conclusive and shall not be challenged in any court.
As you can see from the last line, the minister’s decision is shielded from judicial review. This is bad law. No act of the executive should be shielded from judicial review. What if the minister’s decision was imbued with bias and capriciousness?
Alas, this is far from the only example of “rule by law” in Singapore.
Appealing to religious freedom
This perhaps explains why the church has chosen to take a different route. Instead of asking for judicial review over the finding of (in)sufficient cause, it has chosen to apply for a review on the ground of religious freedom. It is now arguing that the minister’s decision violates Section 15 of the Constitution:
Freedom of religion
15. (1) Every person has the right to profess and practise his religion and to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right —
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.
(4) This Article does not authorise any act contrary to any general law relating to public order, public health or morality.
And this is where I disagree with the church. In asking the courts to rule that as a religious group, it can choose to depart from any law it claims interferes with itself merely on account of its self-definition, it opens a can of worms.
I am extremely wary of any attempt to broaden the meaning of “religious freedom” beyond freedom of conscience and personal practice. We must be very careful not to allow it to mean that religious groups and leaders can exercise coercion on others in the name of its self-defined identity.
As for the right “to manage its own religious affairs”, this should be narrowly construed to mean managing its doctrines, rituals and icons. I think one must be watchful not to expand the meaning to any- and everything that a religious group itself decides to call “religious”. If tomorrow, a group decides that eating raw rat, whipping sinners with lashes of broken glass and starving children who misbehave are part of its “religious affairs”, are the rest of us to stand by idly and do nothing?
Accordingly, I think it is wrong for any religious group to claim exemption from a law, such as the Employment Act, that does not interfere with its doctrines, rituals and icons. To give such exemption broadly would be to carve out for self-styled religious leaders islets of sovereignty which are open to abuse.
In our larger public interest, FCBC’s suit — predicated on this ground of an expanded “religious freedom” — should fail.
Lawrence Wee and Robinsons
Lawrence Bernard Wee’s application for a court declaration that Article 12 of the Singapore Constitution provides protection against discrimination on the basis of sexual orientation is equally interesting to watch. Article 12 states that “all persons are equal before the law and entitled to the equal protection of the law”.
Represented by lawyer M Ravi, his High Court application seeks to anchor a ban on workplace discrimination of gay men and women.
Wee, 40, had previously brought a suit against his former employer, the Robinson’s retail group, in December 2012, claiming to have been harassed into resigning because he is gay. Argued on purely contract grounds, he lost the case. More background on Wee’s deteriorating relationship with a new acting CEO of Robinsons, leading up to the loss of his job, can be seen in an article in Fridae, dated 23 August 2013.
I don’t have high hopes for this new suit, mostly because my confidence in the Singapore judiciary is as limp as a flag on a windless day, but I bring this up because, like the FCBC case, it too raises the question as to where to draw the line between a job’s demands and private autonomy. In fact I think Robinsons was wrong to make life so difficult for him that he had little choice but to resign (but the court found Robinsons right), while the church could have been right to sack the female employee (but the minister found that the church was wrong).
To what degree an employer can impose certain demands or expectations on the private behaviour of employees is a very touchy question. In the interest of liberty, any imposition has to be as narrow as possible. This, however, is not the same as saying there can be no demand at all.
Persons who represent an employer can clearly hurt the employer’s interests through misbehaviour. Some kinds of misbehaviour, the public can reasonably be expected to be able to see as within a private sphere and employers should not get too alarmed about it impacting their brand or message. But other kinds of behaviour may be too difficult for the average outsider to tease out from the employer’s interests.
Let me give you a few examples:
Boon Tuan is hired to help the Health Promotion Board spread the no-smoking message to teens and young adults. His job involves doing roadshows and appearing on media. He is discovered smoking while clubbing when off-duty.
Cynthia is a senior researcher in a cosmetics company that takes great pride in a “no animal testing” policy. She is revealed as a serial abuser of neighbourhood cats.
Lesley is a teacher in a private primary school. Social media soon has pictures of her in soft-focus erotic poses, released by a jealous ex-boyfriend.
We don’t have to debate the details of each of the above examples, but I think readers can sense that like it or not, there is a line somewhere. When one takes on a job, one accepts that it comes with certain implied behavioural expectations — they don’t have to be written explicitly into contract. Breach of these expectations would render one either unfit to do the job, or would so damage the employer’s interest, brand or message, that termination would be entirely foreseeable.
Lawrence Wee’s sexual orientation is completely unrelated to the job he was hired to do. While I haven’t yet seen the details of the judgement in his suit against unfair dismissal (is it out in the public realm?) I can’t understand how the court arrived at the decision it did.
But when a church hires someone to be a marriage counsellor then one’s own marital life cannot be said to be unrelated. You may disagree with the Faith Community Baptist Church’s teaching on marriage but that is beside the point. The employee knew what that teaching was and must have known that the job involved being credible when imparting such marriage guidance. By this measure, I am not convinced that the minister was right in saying the church had no sufficient cause.