Key takeaways

• The decision provides helpful guidance to employers and employees on their rights and obligations during an inquiry into allegations of misconduct. Specifically, the scope and extent of the parties’ due process rights and obligations, in the context of employee misconduct, are circumscribed by the wording of the employment contract.
• In an internal inquiry, further evidence of wrongdoing is oftentimes still being uncovered after the initial investigations are complete and before a disciplinary decision is taken.  Although each case will turn on the specific facts and wording of the employment contract, this decision suggests that employers are not generally required to convene a new inquiry into, or provide employees with a separate opportunity to respond to, each and every additional finding falling outside the scope of the original disciplinary inquiry.
• Once the procedure of the disciplinary proceedings set out in the employment contract is followed, further procedural rights do not arise unless expressly provided for in the employment contract. Employers should carefully review and be aware of their obligations under their employment contracts and relevant employee-facing policies.
• On the facts of this case, the Court found that the misconduct allegations were established based on the findings of the initial investigation, during which the employee was given an opportunity to respond to the allegations. The additional findings were thus not strictly necessary to establish the employee’s misconduct. However, if the additional findings had been necessary to establish the employee’s misconduct, the position remains open as to whether the employer would have had an obligation to give the employee an opportunity to respond to those additional findings.  

In depth

Factual background

• Tan Tung Wee Eddie (“Dr. Tan”) was employed by Singapore Health Services Pte Ltd (“SingHealth”) as a Consultant Neurosurgeon at the National Neuroscience Institute (NNI). The terms of Dr. Tan’s employment included a ‘COI Policy’ and a ‘Discipline Policy’.
• In 2021, a whistleblower reported that Dr. Tan had been intentionally targeting other doctors by accessing the medical records of certain patients, in breach of patient confidentiality, and using those records to find fault with the other doctors (“Misconduct Allegations”). A COI was accordingly convened to investigate the Misconduct Allegations.
• •The COI uncovered that Dr. Tan had improperly accessed the records of 42 patients. The COI also interviewed Dr. Tan and invited him to provide a written response, in the course of which Dr. Tan admitted to accessing patient records in breach of patient confidentiality. Nonetheless, the COI recommended that Dr. Tan be issued a formal warning only. Pursuant to the COI Policy and Discipline Policy, a SingHealth Disciplinary Council (SDC) was convened, with the power to review the COI’s recommendation and decide on the punishment to be meted out. 
• The SDC ultimately decided to dismiss Dr. Tan. However, in coming to its decision, the SDC considered the COI report as well as an NNI Data Audit which was completed after the COI report was delivered. The NNI Data Audit set out details of other instances of patient confidentiality breaches by Dr. Tan which were not considered by the COI.

Grounds of appeal

• Dr. Tan’s sole ground of appeal was that SingHealth had been contractually required to provide him with an opportunity to respond to the NNI Data Audit before dismissing him.
• Dr. Tan’s argument was based on a provision in the COI Policy requiring that an employee under investigation “shall be granted due process and an opportunity to explain himself in disciplinary proceedings”.

Legal principles

• Where a contractually appointed body decides on a party’s rights under contract, there is no general duty for a party exercising this right to act fairly or observe natural justice.
• As such, the scope and extent of any procedural rights or obligations under such a decision-making process, such as fairness, natural justice, or due process, is determined by the specific contractual terms governing that process.

AD’s decision

• Dismissing the appeal, the AD held that the contractual terms governing the disciplinary proceedings did not oblige SingHealth to give Dr. Tan an opportunity to respond to the NNI Data Audit.
• The AD found that under the COI Policy and Discipline Policy, SingHealth was obliged to convene a COI to investigate the facts of the Misconduct Allegations, report its factual findings, and recommend appropriate disciplinary action. The SDC was then responsible for reviewing the recommendation and deciding the appropriate action, not reviewing the fact-finding exercise.
• Accordingly, the obligation to grant Dr. Tan ‘due process and an opportunity to explain himself’ was limited to the ambit of the disciplinary proceedings against Dr. Tan, which was in turn circumscribed by the particular Misconduct Allegations investigated by the COI. 
• Therefore, once the COI had granted Dr. Tan the opportunity to respond to the Misconduct Allegations that the COI had been investigating, the obligation of due process under the COI Policy had been discharged. The mere fact that the NNI Data Audit   raised other instances of unauthorised data access did not oblige SingHealth to re-convene a COI to investigate those other instances. 
• As such, SingHealth could not have been obliged to give Dr. Tan an opportunity to respond to the NNI Data Audit because the NNI Data Audit did not fall within the ambit of the disciplinary proceedings against him.

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