Church sacks employee and sues government — on one ground right, on another ground wrong

Christ and the woman taken in adultery, by Nicolas Poussin, 1594-1665

Christ and the woman taken in adultery, by Nicolas Poussin, 1594-1665

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.

Executive imperium

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).

Dovetail demands

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.

26 Responses to “Church sacks employee and sues government — on one ground right, on another ground wrong”

  1. 1 Anon mBBo 12 October 2013 at 18:42

    Notwithstanding the above, the Singapore employment act allows any employee to be sack without reasons based on contractual agreement of one months’ notice or pay in lieu. Lawrence Khong can terminate the employee by paying her $7,000 this is the maximum that was required why is it so difficult to so. Lawrence Khong quoted bible out of context. TheJews in the old testament would like to know whether they need to pay tax to the Roman Emperor, the answer was obvious, render unto Ceasar the thing that are Ceasar’s meaning to say Lawrence Khong have to rendert to Ceasar (the MOM) the things that are Ceasar’s I don’t think there is case to this

  2. 2 Bob Sim 12 October 2013 at 20:22

    i don’t think the church “sues the gahmen” but rather they give the impression of indignant and not satisfied that they are being fined $7K.

  3. 3 Hawking Eye 12 October 2013 at 20:30

    I am amazed at the audacity of the Church to go to court literally to justify its sacking of the employee and to get the order of the Minister to pay the woman the required compensation rescinded.

    If the Church’s justification of her sacking is premised on her not complying with the upright moral behavior as set by it, how upright then is the Church when it sacks its 6-month pregnant employee so capriciously without complying with the law of the land vis-à-vis the Employment Act?

    Yes, the Church may have the right to sack her but do so by paying her full dues. You cannot sit on moral high ground by being vengeful, calculative and stingy. In my view, you have no case to bring up. It will just be thrown out. For the Church to frame the case as curtailment of the rights to religious freedom is plain mischievous.

    • 4 Anon YcvS 17 October 2013 at 23:17

      Then that is rewarding her isn’t it? If the rules of conduct of employment is not to steal or lie and the employee is caught doing either, the employer has the right to terminate for breach. What if the employee comes to work naked, doesn’t the employer get to sack the employee? so as a church which is supposed to guide its followers on matters of morality, the church cannot be seen to condone such immoral acts by continuing to employ her…just so logical! Just because she is pregnant does not make her act less reprehensible. Her pregnancy is the result of her immoral behaviour so why should she be able to claim a reward for her breach and misconduct.
      I am amazed at the shamlessness of the employee. They should release her name so we can all know who is this brazen and shameless creature.

  4. 5 Tan Tai Wei 12 October 2013 at 20:38

    It’s “bad law” to accord Minister that absolute discretion? Nay, it’s not even “law”? Surely, constitutions and laws are written in order that authorities abide by them and not have precisely that discretion. And so any article of “law” that accords authorities that discretion is inherently self-defeating and contradictory; and therefore null and void? And just imagine in court ,after a good case is argued for non-inteference with church, the judge pronouncing “but Minister’s decision is final” (however wrong)!

  5. 6 Tan Tai Wei 12 October 2013 at 20:59

    On the point you raised about the church’s appealing on ground of “religious freedom”, surely, she isn’t necessarily claiming all the freedoms you mentioned, but only that her freedom to believe and worship, which includes living and upholding her religious morality, should mean also her right, when employing church personnel, to set conditions of employment peculiar to that morality. You yourself said that the church might have a case to appeal the charge of wrongful dismissal on precisely this contention, if not for the Minister’s decision being final by law. Well, the church, as you enlighteningly pointed out, is deploying a legal avenue to bring up the same kind of considerations for review?

  6. 7 Saycheese 13 October 2013 at 04:10

    The church was being miserly. She has every right to sack the employee but just pay her her dues. By not paying her dues the church is being seen as taking advantage to save some money from her maternity benefits.

    Singapore’s employment laws gives wide leeway to employers to dismiss any worker, whether with due cause or not, so long as a pittance is paid to the employee.

  7. 8 yuen 13 October 2013 at 06:25

    since the ministry did not order the church to reinstate the employee, the church’s right to judge her unsuitable for the job was not disputed; however, by ordering the payment of compensation, the ministry was saying that her economic interest under the employment contract has not been adequately provided for

    in other words, the “fairness” of the dismissal was questioned not on moral grounds, but on financial ones only

  8. 9 Lim Wee Chong 13 October 2013 at 10:52

    What does “the designated representative to meet couples seeking to wed — and to explain what was required of them” mean ?

    Tell them which forms to fill in ?

  9. 10 Alan 13 October 2013 at 11:43

    I don’t think the Church does not already know the answer to what they are trying to seek. They are just basically trying to test the case to prove to their followers that they have the higher moral grounds to act the way they acted, no matter how unfair the dismissal was in the eyes of the public. It’s almost like a sort of trying to save some face however little it may be for their Church.

    Obviously the S$7,000 compensation is peanuts to them when the legal fees, the time wasted & the associated bad publicity will probably cost them much, much more in monetary terrms. To sum it up, it probably end up as another futile exercise to ever challenge the Govt just like the 377A court challenge. What can we expect when we have a cunning Govt in governance ?

  10. 11 Rajiv Chaudhry 13 October 2013 at 13:28

    Allowing the action to succeed on freedom of religion grounds would open a can of worms.

    What if another religious body claimed the punishment for adultery was burying the woman up to her waist in the ground and stoning her (but not him) to death or “an eye for an eye and a tooth for a tooth”? Sounds far-fetched? Yes, but when a precedent has been set, it can be a very slippery slope indeed. No rational state should allow it.

    • 12 Tan Tai Wei 14 October 2013 at 08:55

      “Religious freedom”, by that article Alex quoted, would not mean religions are free to do things that infringe the law.

  11. 13 Tan Tai Wei 13 October 2013 at 13:55

    That “women’s charter” ruling must have been meant to protect pregnant employees against being dismissed, in truth because of inconveniences or expenses arising from the pregnancy, whatever the overtly stated reasons given by unscrupulous employers. Hence, “dismissed with insufficient cause during pregnancy”. But in the present case, surely the Minister isn’t accusing the church of being thus unscrupulous? In any case, her being “wrongfully dismissed” should call for penalties other than merely the compensation by that “women’s charter”. Surely, there are penalties prescribed by law for just “wrongful dismissal” in itself?

  12. 14 Shaun Liew 13 October 2013 at 18:10

    “Minister’s decision is shielded from judicial review. This is bad law. No act of the executive should be shielded from judicial review”

    Really sad to be a Singaporean with such third world laws.

    The fact that the church has such immoral people working inside is disturbing. If this is a fact that there will be immoral people everywhere, then take that argument back to LHL and demand why we are wasting money on ministers who cannot deliver.

  13. 15 Samsam 13 October 2013 at 22:40

    I seem to remember a story in the bible about being kind to expectant mothers.

  14. 16 Rabbit 13 October 2013 at 22:55

    We have always heard about “forgiveness, god’s love, human sins” from christian mouth and it didn’t quite jive in this incident in my opinion. Regardless of whose fault, I am sure there are more human way of dealing with such case (taking away laws, rules or morality issues) and considering the baby will be borned under poverty if the mother remained unemployed while taking care of her child. Certainly, the church may have rules to uphold, but being too calculative is another matter altogether.

    • 17 Tan Tai Wei 14 October 2013 at 09:17

      When that great humanitarian of a school principal, the late Francis Thomas (Minister of Labour and Law in the David Marshall/Lim Yew Hock govt) was principal of St Andrew’s School, he had to suspend a Sec 4 student just months below the O-level exams. He did so, but then got teachers to continue to prepare him for the exams on Sat mornings.
      Of course, he had to take precaution, less this was interpreted to be a reward instead, for seriously breaking school rules.
      I’m sure, even should the church win her case at the judicial review, that she will likewise show humanitarian concern for her former employee, as she has said she had already been doing. (Say, replace that “compensation” with donations from some “social service fund”?)

  15. 18 Jonathan Teo 14 October 2013 at 09:57

    Alex, what you are saying about “implied behavioural expectations” will also open a can of worms. Such expectations should be clearly stated in the terms of employment. To illustrate by adding further to your examples above: what about Convent teachers who are gay? who are smokers? What about Health Promotion Board workers with a belly and a penchant for fried food? See how dangerous this could be?

  16. 19 Anon 20J0 14 October 2013 at 10:14

    Another question is how arbitrarily the church has applied its doctrines. Why fire an “unrepentant adulterer” but not a church member who continues to have selfish thoughts, secretly covets his colleagues’ jobs, has anger issues, is judgmental, not loving and kind etc? If one were to be consistent about Biblical doctrines, one has to apply the same standards fo all the Bible teachings to all employees. Of course, the Church would be empty.

    It is the same as your analogy — If HPB wants to fire a smoker, then they have to also fire people who overeat or don’t do enough exercise. I think they’ll have not enough Singaporeans to hire. Your animal shelter example isn’t a good one —- because animal abuse is against the law, so the company can apply a consistent standard to dismiss any employee who commits a crime. For the primary school teacher example, I think the feminist groups will be up in arms, since the teacher is a victim of a crime, and one shouldn’t be punished for being a victim of a crime. Again, it doesn’t quite compare to FCBC’s case.

  17. 20 henry 14 October 2013 at 11:51

    “… opening a can of worms…”

    I believe that is good. We need to contest ideas. What is not good is that as we wait for a decision from learned people, and people with vested interests.. the outcome may not please all.

    But that is what we need. To debate with transparency.. to articulate views.
    Religion as a topic seems to be taboo. It need not be and should not be.
    Same goes for homosexuality.

  18. 21 Jake 14 October 2013 at 19:33

    Seems tactically wrong to play the freedom of religion card. If there is freedom of religion to begin with, young men would not be sent into detention for professing belief Jehovah’s Witnesses. Previous attempts by Muslim parents to dress their public school attemding girls in head scarves would not have been met by government intervention. If the government sees religion as having the potential of curtailing or reducing its authority, appealing to it with a freedom of religion argument isn’t going to fly.

  19. 22 Russel Tan 16 October 2013 at 06:38

    I would like to attempt to understand the whole saga from the perspective of the sacked woman. When the affair started, the woman was undergoing divorce proceedings. Therefore, there was already no love in her marriage when she fell in love with her collegue. If she apologised in front of the congregation, what would happen to her unborn child? It would mean that the child is unwanted and is conceived in shame. I would wish that Pastor Khong not to judge her but to love her.

  20. 23 Anon 18t9 19 October 2013 at 18:29

    Lawrence Khong is not the Church, FCBC is also not the representative of the Church. This pastor with an ostentatious Apostle title could be a false teacher based on the Bible qualifications of a church leader.

  21. 24 KAM 20 October 2013 at 04:44

    Masterful. Again we see how the black horse is said to be white while the white horse insists he is black.
    They cannot just say black is black and white is white.
    They are all greying old horses.

    Well done Alex. This article is a good read.

  22. 25 Zap 21 October 2013 at 16:15

    This has been a very interesting read. While I agree that we should watch out how the definition of “religious affairs” expand, I do see safeguards built into the constitution to ensure horrible practices do not go propagate with religious excuse.

    You said, ” 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?”

    That is where the freedom of religion, and practice or management of its religious affairs has state defined caveats. That is: “(4) This Article does not authorise any act contrary to any general law relating to public order, public health or morality.”

    The examples listed above contravene public health, public order and morality. It is interesting to note that this is the only three categories of general law that curbs potentially harmful practices by religious organisations. It does not include employment laws, unless it is defined as a law on morality.

    As for dovetailing one’s private sphere with the employing organisations mission, I think it is a matter that needs to be explicitly briefed to employees prior to inking the contract. It will be difficult religious organisations to print in the contract in full, the moral or ethical demands needed lest it be contended in a legalistic manner. But it has to be informed at least verbally, and not left to be unsaid and presumed. This has to be the case because, to be honest, everyone has a different level of appreciation for the implicit.

  23. 26 danny 30 November 2013 at 13:45

    Pastor Kong had the right to dismiss the employee and the employee has the right to be compensated for her dismissal. The church made its point n the matter should be closed. But unfortunately the pastor wishes to make a point. Sad.

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