30

I am of the view that a continuous absence of more than two days in the
circumstances under the Singapore s 13(2) amounts to more than just a deemed
breach of contract. It is also a deemed repudiation. Indeed, when an employee
does not turn up for work and has no prior leave or reasonable excuse, he is
already in breach of contract. A deeming provision is not necessary to establish a
breach but it is necessary to deem the breach a repudiation. It is a different
matter if one were to argue that the circumstances under s 13(2) have not been
established. For example, if an employee who is absent for more than two
consecutive days has given his employer notice of the reason for his absence
prior to the expiry of the two days but the dispute is whether his reason
constituted a reasonable excuse, then that is a different issue altogether. It may
be that that was what Harun Hashim J and Vohrah J meant when they said that
the circumstances of the absence must be considered. Accordingly, absence
without prior leave does not in itself bring s 13(2) into play. There must also be
the absence of reasonable excuse. However, if the employee does not even
inform or attempt to inform the employer of the reasonable excuse, then s 13(2)
comes into play. It may be that one may ask how an employer is to establish that
an employee has failed to attempt to inform him and then suggest that therefore
a due inquiry by the employer is required to establish whether the attempt to
inform has been made. However, as I have said, the onus is not on an employer
to seek out an employee for his excuse or to find out whether he has attempted
to inform the employer of his excuse. The onus is on the employee, if he has a
reasonable excuse, to inform and in so doing, to make the attempt to inform. For
practical purposes, once the employer does not hear from the employee after
more than two days of absence, the employer may terminate. If the employee
can establish that he did attempt to inform but for some reason beyond his
control the attempt failed, then the termination will not be a lawful one. While I
accept that such a possibility will create some uncertainty for an employer, it
seems to me that it will not arise often. In any event, an employer who does not
wish to face this uncertainty can still conduct his own investigation before
termination or choose not to terminate under s 13(2) but under the usual
contractual provision which allows termination by giving notice of a certain
duration or pay in lieu of that notice.

Again, the onus to get in touch or to try and get in touch is on the employer, although there
is a corresponding duty on the employee to take steps or reasonable steps to get in touch
and communicate with the employer - see Mitchell v Arkwood Plastics (Engeneering) Ltd
[1993] ICE 471.
Dismissals which were held as unfair because of no or insufficient consultations with
employees include:
a)

Owen v Funditor Ltd [1976] ICR 350 QBD;

b)

Townson v Northgate Group Ltd [1981] IRLR 382;

c)

Taylor v Southcott & Co Ltd [1972] IRLR 78 IT; and

d)

Burdekin v Doland Corrugated Contamers Ltd [1972] IRLR 9 IT.

In this case, there is no evidence that the firm as an employer had taken any reasonable step to
try and investigate or enquire of the claimant's cause for her absenteeism, if there was one,
because the claimant has colleagues in the office who would naturally have been put into a state of
enquiry, as to what had happened to a fellow worker.