On the Jack Neo sex scandal and sexual harassment in the workplace

Much has been said about Singapore filmmaker Jack Neo’s infidelity recently. But little has been raised in regard to how his behaviour likely constitutes sexual harassment in the workplace, and in particular, the lack of specific laws in Singapore that protect employees from sexual harassment and give employees an avenue for seeking redress.

What is sexual harassment? One definition is that sexual harassment is the “intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours”. It includes a range of behaviours from seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault.

In the recent Jack Neo scandal, a number of women alleged that he made unwelcome sexual advances on them while they were in his employ or acting in his movies. Such behaviour certainly constitutes sexual harassment.

In this author’s view, every employee (whether female or male) should be protected by law from sexual harassment at the workplace. Furthermore, any employee who is sexually harassed at the workplace deserves an avenue of redress against the harasser. This is especially so if the harasser is in a position of authority over the victim. An employee who has been sexually harassed at the workplace should not be helpless without legal protection to defend herself or himself, and should not have to make the wretched choice of either losing the job or giving in to the unwelcome sexual demands of the harasser. If at all, the harasser is the one who should be penalised.

Now, sexual harassment is illegal in many countries, but unfortunately for Singapore employees, sexual harassment is not specifically illegal in Singapore.

In other countries, employers and harassers are legally responsible (under criminal and civil laws) for sexual harassment against their employees and liable to them for damages (i.e. monetary compensation for loss or injury). Examples of such countries include the United States, United Kingdom, the member states of the European Union, Australia, China, Philippines, India and Israel.

Why are there no specific laws enacted against sexual harassment in Singapore? It seems to this author that there are no good reasons why not, and it is time this lacuna is addressed by the Singapore government. In fact, sexual harassment is a prevalent problem in Singapore. In a 2008 study conducted by AWARE, 54% of the 500 participants surveyed reported having been sexually harassed at work. This includes both men and women.

Victimised employees need protection. And in this author’s personal opinion, it would not do to condone, or to rally around and support a harasser. Laws are vital to ensure that employers take pro-active steps to protect their employees from sexual harassment in the workplace, safeguard their careers and livelihoods, and give them a way to lodge their grievances. Having laws against sexual harassment will benefit not only local employees, but also the significant population of foreigners who come to Singapore to work (and who may otherwise be deterred from coming or harmed by the lack of sexual harassment laws). Certainly, such laws would go a long way in deterring a number of would-be offenders and protecting employees, and reprehensible cases such as the Jack Neo saga could be minimised or averted.

On advertisements and the truth

Kudos to kitchen tigress for teaching local bank, OCBC, a lesson on misleading advertisements!

Briefly: OCBC had been advertising that it surprises its customers with birthday cakes on their birthdays. On her birthday, kitchen tigress went to OCBC to claim her birthday cake, but was told by staff that it was just an advertisement and they don’t give birthday cakes to customers. This didn’t faze kitchen tigress one bit, and after sticking to her guns, an OCBC supervisor eventually relented and bought her a cake.

For too long, advertisers in Singapore have gotten away with feeding misleading advertisements and outright lies to consumers. This should stop. Here, OCBC advertised and gave the expectation that its customers would be surprised with birthday cakes – this didn’t happen for kitchen tigress. As for other misleading and possibly even false advertisements, these include weight loss services by slimming centres, hair growth products and services, and of course, financial products that are supposed to be “safe” (we all know the recent famous example which needs no introduction).

Companies should learn to tell the truth when advertising their products and services. If you can’t be truthful, then you shouldn’t be allowed to peddle your wares.

Do we have laws in Singapore regarding false and misleading advertisements? To some extent, we do. For example:

• There is the Misrepresentation Act, where if a person enters into a contract under a misrepresentation, then that person is entitled to cancel the contract, and possibly claim for losses suffered.



• There is the Consumer Protection (Fair Trading) Act, where it is prohibited for a supplier to (a) cause a consumer to be deceived or misled, (b) make a false claim, or (c) take advantage of a consumer.
  
  Examples of such behaviour include (i) representing that goods or services have performance characteristics or benefits that they do not have (weight loss or hair growth products and services may fall into these category), and (ii) offering gifts, prizes or other free items in connection with the supply of goods or services if the supplier knows that these items will not be provided (OCBC’s free birthday cake may fall into this category).



• There is also an interesting concept in law, where if someone advertises that he would do something in return for your action (say for example, give you a surprise birthday cake if you sign up as a bank customer), and you actually do it, then it is a binding contract in law and that someone has to fulfil his promise!
  
  A famous case which happened in England in 1892 was the “Carlill vs. Carbolic Smoke Ball Company” case, where a certain Carbolic Smoke Ball Company advertised that its “smoke ball” would cure flu, and if it did not, buyers would receive £100. Ms Carlill tried the smoke ball, which failed to cure her flu. When Carbolic denied giving her the £100, saying that it was only an advertisement gimmick and not to be taken seriously, Ms Carlill sued Carbolic and successfully got her £100.

Now, the abovementioned laws are not very effective, because they do not make it an offence for companies to advertise in a false or misleading manner. These laws only help consumers who are willing to go to court to seek redress. However, hardly anyone would bother going to court to seek redress – it’s troublesome and usually not worth the while because most people would not have spent very much anyway on the actual good or service.

So what can the government do to properly protect consumers in Singapore? Easy, pass a law that bans and makes it an offence to have false or misleading advertisements. This way, the onus is on companies and advertisers to be mindful of their responsibility to the public.

For completeness, it should be mentioned that a few items, such as medicines, have statutory regulations making it an offence for persons or companies to advertise them in a false or misleading manner in Singapore. But for most products and services in general, there are no such laws, and it’s about time something is done.

The objective here is not stifle creativity in advertising. For example, a tagline such as “Red Bull gives you wings”, while it is a cute tagline, the Red Bull beverage of course doesn’t give its drinkers any wings, and no reasonable person would expect it to do so, so there’s no harm (just a note here: in the opinion of this author, companies can come up with great taglines which are genuine, such as “HSBC – the world’s local bank”. Now that’s something which HSBC can try to deliver to its customers). But if a company advertises something that is humanly possible (such as a birthday cake surprise for its customers), then it should jolly well carry out its promise.

On the closure of hotel spas

Two spa businesses suffered sudden closures in Singapore recently, leaving their customers stranded with useless packages that have already been expensively paid for. These two businesses, Wellness Village Spa and Simply Spa International, operated outlets in good, well-known hotels, being the Pan Pacific Hotel and the Parkroyal Hotel respectively.

The aggrieved customers are now fighting to get their money back through the aid of the Consumers Association of Singapore and the Small Claims Tribunal, although it is not certain that these spa businesses even have any money left to refund their customers.

What can be done to prevent such incidents from happening again in future?

One suggestion has been made regarding chargeback schemes for credit card users, where consumers can reverse a credit card transaction if they do not receive goods or services that have been purchased from merchants.

But it seems to this author, that hotels should also play an important role in preventing such incidents. After all, any business (including spa businesses) which sets up shop in a good hotel will be relying on the name, goodwill and reputation of the hotel to attract customers. Most customers do not associate shady, fly-by-night businesses with shops that are found in a good hotel. Moreover, hotels have a vested interest in preventing such incidents from happening, because if hotel shops falter and leave customers in the lurch, they will also tarnish the name of the hotel.

There is, in fact, something that the hotels can do. And that is to require the businesses which set up shop in the hotels to maintain a certain minimum capital in their companies. In a way, the capital can serve as an assurance that the company will be able to meet its debts and obligations as and when they fall due. If this had been done in the case of Wellness Village Spa and Simply Spa International, the affected customers may have some assurance that there is money in the companies from which to get their refunds.

Now this is not a new idea, and there are some shopping malls in Singapore that require their shop tenants to maintain adequate capital, so as to protect the mall landlords as well as the customers.

If a business cannot afford to maintain an adequate capital, then the hotel should not bother with allowing such business to run in the hotel. As seen from the case of the two failed spa businesses, there is just too much risk in allowing one dollar companies to operate one day and disappear the next, leaving hundreds of customers stranded.

On internet security in Singapore

According to a recent report by computer security expert, McAfee, Singapore has the 10th riskiest internet domains in the world.

This means that if you surf to a Singapore-registered website which ends with “.sg”, the chances of your computer contracting some form of malware is very high. According to McAfee, Singapore’s risky websites rose appreciably from 0.3% last year to 9.1% this year, although, McAfee found that the dangers appear to be of a moderate level rather than severe level. Interestingly, McAfee highlighted Chinese pharmacy spam sites in Singapore as a main cause of risk.

In comparison, Malaysia’s domains (.my) were ranked relatively safe at #80 out of 104 domains with a rating of only 0.3% risk, while Japan’s domains (.jp) were established to be the safest country domains with a rating of only 0.1% risk.

According to McAfee, when scammers and hackers register their malicious websites, they look for registrars with:

• lack of regulation


• ease of registration


• lowest price

Given that Singapore’s domains (.sg) are ranked among the top 10 riskiest internet domains in the world, presumably, scammers and hackers view that there is little regulation involved in registering the .sg domains, and they are easy as well as cheap to register.

Now, why should dangerous internet domains be an important concern for Singapore? Well, a bad reputation for Singapore websites could negatively affect legitimate businesses in Singapore who intend to rely on e-commerce. Internet users may not trust websites ending with .sg for fear of contracting malware or succumbing to scams. In fact, if Singapore’s standing as a reliable and trustworthy place in the internet world is lowered, the potential impact is global.

So, does Singapore have laws against computer crimes such as websites with malware? Yes, in fact, it does. The main legislation is the Computer Misuse Act which was passed in 1993. There are a variety of activities which are considered offences under the Act, such as:

• unauthorised access to, or modification of, computer material


• unauthorised use or interception of computer service


• unauthorised obstruction of use of computer


• unauthorised disclosure of access code

The penalties for committing these offences are severe, especially if damage is caused, ranging up to fines of S$50,000 and jail terms of 10 years. If the offences involve threats to national security, the penalties can be enhanced up to fines of S$100,000 and jail terms of 20 years.

So, on the face of it, Singapore appears to have adequate laws against computer crimes. But are these laws being enforced? Well, the main agency tasked to tackle computer crimes, is the Technology Crime Division of the Criminal Investigation Department of the Singapore Police Force. This division conducts investigation, forensic examination and prosecution into technology-related offences committed under the Computer Misuse Act, such as hacking and unauthorised access to account.

Is the Technology Crime Division doing enough to counter scammers and hackers in Singapore? At present, this author is unable to find specific statistics on how many scammers and hackers have been successfully prosecuted under the Computer Misuse Act. Admittedly, it is a difficult job to fight computer crime and to bring elusive scammers and hackers before the law. Even with a dedicated unit like the Technology Crime Division, the evidence of Singapore’s poor security ranking for internet domains indicate that many scammers and hackers do thrive in Singapore.

What else can Singapore do? Well, the key may lie in making it difficult for scammers and hackers to register their domains. The .sg domains are registered by SGNIC’s accredited registrars, such as SingNet. Perhaps, for a start, these registrars can require domain applicants (as well as current domain owners) to furnish more detailed information and proof of identity. And whenever news of malicious domains is notified to the registrars, the registrars should act quickly to investigate and disable such domains, as well as report them to the police. In this respect, SGNIC may also consider providing an easy website form for users to report malicious Singapore websites.

Update: Local media picked up on this news on 18 December 2009.

On restricting employees from competing or soliciting

It seems a fairly common practice in Singapore for employers to contractually impose post-employment restrictions on their employees to prevent them from working for a competitor or taking fellow employees away.

Because of these restrictions in their employment contracts, many employees worry that they cannot work for companies of their choice after leaving their employers. Further concerns which they have include:

• They cannot earn a living during the period of restraint, especially if their skills are not easily adaptable to other kinds of work.


• Their skills may be rendered sterile if not actively used.


• Their work experience will be adversely affected.

Why do employers impose such restrictions? Well, there are legitimate reasons for doing so if an employer wants to protect certain interests, such as:

• Preventing unauthorised use of its special trade connections.


• Preventing unauthorised use of its business secrets.


• Maintaining the stability of its workforce.

There are two competing principles at stake here: an employee’s freedom to work versus an employer’s right to protect its business interests.

Are these restrictions legal in Singapore? The short answer to this appears to be, it depends – on whether the restrictions are reasonable:

• First, as mentioned, the employer must have genuine legitimate interests to protect.


• Second, the extent of the restrictions themselves (such as the types of activity being restrained, the geographical area of restraint, the duration of restraint etc.) should be no more than necessary to protect the employer’s business interests.


• Third, the restrictions also have to be reasonable from a public policy viewpoint.

If the restrictions fail to meet any of these conditions, they will not be legal in Singapore.

But often, employers in Singapore impose such restrictions unfairly, either (i) simply to deter or “scare” their employees from working for a competitor, even if the employer doesn’t have adequate interests to protect, or (ii) having unreasonable restrictions, such as lengthy non-competition periods or restraining a wider scope of work than necessary or applying blanket restrictions to all their employees (even rank-and-file employees and junior executives) without heed as to whether these restrictions are even relevant to the nature of the jobs involved.

Now, many of these employees are generally helpless to negotiate the terms of their employment, and have very little choice in the matter. They are invariably taken advantage of by unscrupulous employers in these situations and are effectively “scared” or tied down. They usually also lack the financial resources to seek legal counsel of their own.

It would be good if the Singapore government could recognise this issue, and set up a small unit (perhaps at the Ministry of Manpower) to investigate and help mediate complaints in this respect, and also provide general advice to companies about not restraining their employees unduly.

On the rule of law - form vs. substance

The concept of the “rule of law” generally means that the law is above every person, and it applies equally to every person.

Whenever criticised about human rights issues in Singapore, the ruling PAP government likes to bring up mention that there is “rule of law” in Singapore. However, it must be noted that there is no precise definition for the expression “rule of law”, and its actual meaning varies with different people. So what the PAP government likely means when it talks about the “rule of law”, is a formal, positivist interpretation, i.e., there is a system of man-made laws which are enacted and carried out by the government.

But this is no big deal. Practically all countries today with functioning governments will possess the “rule of law” in this sense. As a matter of fact, some of the worst atrocities in human history were committed by Hitler’s Nazi government under legitimately enacted laws. Yet, after World War II ended, Hitler’s government was subsequently tried and convicted for crimes against humanity.

So, as seen, the formal view of the rule of law contains no requirements whatsoever as to the content of the law. There is no inherent or necessary connection between the validity of the law and ethics or morality, and critics have noted that such a system creates a ruling elite that has the power to manipulate through the law. It has thus been observed that consequently, the law cannot serve as an effective barrier to a government’s abuse of power because power structures in society, not the law itself, determine the outcome of legal issues and problems.

There is, however, another higher interpretation of the phrase, “rule of law”. This is known as the substantive interpretation, which holds that the rule of law intrinsically protects human rights. The concept of natural justice comes into play here, and whereas a formal, positivist view would claim that a law can be unjust without it being any less a law, a substantive, naturalist view would observe that there is something legally deficient about an unjust law. As mentioned, individual human rights (i.e., the basic rights and freedoms to which all humans are entitled, such as the right to life and liberty, freedom of expression, and equality before the law) are protected under a substantive rule of law system, and an unfair, oppressive or unjust law is in a sense regarded as no law at all.

To put it in the local context, for example, Article 14(b) of the Singapore Constitution provides that all citizens have the right to assemble peaceably and without arms. The right of peaceful assembly is generally considered to be an important civil right for citizens. There is a caveat to this right of peaceful assembly, and that is, parliament may impose such restrictions as it considers necessary or expedient in the interest of national security or public order.

The PAP government had, based on this caveat, enacted rigorous laws (in particular, the Public Order Act) to restrict the holding of public assemblies. One notable aspect of these restrictions is that the PAP government had delegated responsibility for public assemblies to the police, and any person wanting to hold a public assembly is required to obtain a police permit. Unfortunately for the opposition parties in Singapore, the police categorically outlawed all outdoor political events and will not ever grant public assembly permits for such purposes. This in essence deprives a group of citizens of their fundamental right to peaceful assembly. In this scenario, there is rule of law in the formal sense, whereby a government enacts certain laws and carries them out to the letter. But the question is, is there substantive application of the rule of law?

In order for the PAP government to truly address any criticisms of human rights transgressions, it must be able to demonstrate that Singapore has the rule of law not only in the formal sense, but also, in the substantive meaning of the phrase.

On medical leave and the employee

Medical leave is an employee benefit that is given in the form of paid leave which employees can use during periods of sickness. In most countries, there are statutory laws which provide for and protect the employee’s right to medical leave, especially for the rank-and-file employees who seldom possess the bargaining power to negotiate the terms of their employment.

The approach typically taken in Western countries, with regard to an employee taking medical leave, displays compassion and understanding. If an employee falls ill and requires rest for a couple of days, most companies will allow the employee to call in sick. There is no need for the employee to produce a medical certificate issued by a doctor in order to take short term medical leave. Only in cases of longer medical leave, e.g. four or more days, will medical certification be required. This approach is based on mutual trust and respect accorded between the employer and the employee. The underlying principle which companies adopt, is that the employee is regarded as a mature adult and is trusted not to abuse the benefit given to him or her. Equally, the employee appreciates the trust given, and does not abuse it.

The attitude adopted by the majority of companies in Singapore is markedly different. The employee is required to go to a doctor to obtain a medical certificate as proof of his or her sickness, even for just 1 day of rest. Otherwise, medical leave will not be granted, and the employee’s absence will be considered as unauthorised, with the consequences that the absence will be deducted from his or her annual leave or salary, and possibly, disciplinary action taken.

Why do employers in Singapore treat their employees in this way? Well, Singapore employers claim they are afraid that medical leave benefits will be abused, resulting in a loss of productivity at work.

But if we think about it, the prevailing system in Singapore doesn’t really do much to prevent the abuse of medical leave benefits. Most companies will concede that employees who are determined to use up all their medical leave, will do so anyway whether or not their employers require them to see a doctor and obtain medical certification.

Does abuse exist in the Western system? Yes, of course there are some individuals who will tend to abuse the trust given to them. However, these are isolated cases, and by and large, the majority of employees do not abuse the system.

Now, the cost of providing health care to employees in Singapore is expensive – according to one estimate, it costs between S$800 and S$1,400 annually per worker. The larger companies in Singapore usually procure group health insurance for their employees to cover their medical expenses. However, many small and medium businesses find such group health insurance plans expensive, and they typically choose to reimburse their employees’ medical expenses on a per occurrence basis instead. What Singapore employers may have failed to realise, is that there is actually a cost-saving benefit if an employer allows its employees to call in sick without obtaining medical certification, i.e., medical expenses will not be incurred. Of course, this is in no way advocating that companies should do away with medical certification requirements just to save costs. The principle is about treating the employee as an adult.

To minimise the abuse of medical leave benefits, it is submitted that companies may consider giving small monetary rewards to employees who achieve full attendance (i.e. no medical leave taken) during the work year. Such a gesture will recognise the employees' efforts, and also serve as an incentive for them to keep healthy.

Hopefully, we will someday see a mindset change among Singapore employers in this aspect.