Article 12 Constitutional suit for equal protection of LGBT people in the workplace

Article 12 of the Singapore Constitution only guarantees equal protection on the basis of religion, race, descent or place of birth.

In December 2012, Lawrence Wee, a former manager at the departmental store Robinsons who said that he was made to resign on account of his homosexuality, filed an application with the High Court to include LGBT Singaporeans as one of the enumerated categories in Article 12.

Despite the fact that at the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Review held in May 2011, the Singapore government declared, “The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity”, Wee's application was struck out by the High Court in May 2014.

The ruling contradicted what Singapore had been reporting about its human rights record at the UN, preserved the legal status quo of the local employment environment and left LGBT Singaporeans vulnerable to discrimination and abuse.

=Civil suit against Robinsons=

In December 2012, for the first time in Singapore's legal history, a Singaporean man, Lawrence Bernard Wee Kim San, then 39, a former assistant general manager of corporate sales and cards at Robinsons where he had worked for 6 years, filed an affidavit with the High Court as part of a civil suit claiming damages from retailer Robinson & Co. for "constructive dismissal", 4 months after his resignation. Wee said that Robinsons had pressured him into leaving his job because he was gay. Constructive dismissal occurs when an employer makes life so difficult that an employee is, in effect, forced to resign.

Wee recounted that his former boss at the departmental store, Jim McCallum, had harassed him because he did not approve of Wee's sexual orientation. Wee had worked for Robinsons for six years before resigning in August 2012.

Robinsons, however, denied Wee's claim that he was unfairly badgered by McCallum, including his account of how McCallum had told Wee's direct supervisor that he was "wrong already as a person". The company also refuted the description of any "biasedness", "unfair treatment" or "persecution" by personnel at the store, or that Wee faced "difficulties" or "threats" when he wanted to leave the company.

Wee was given 4 months' salary in lieu of notice - the terms of his contract only stipulated a payment of 2 months' salary in lieu of notice - as well as cash for his unconsumed annual leave.

After hearing the case, the High Court dismissed Wee's suit on purely contractual grounds. Wee promptly appealed against the High Court's decision.

=Article 12 Constitutional suit=

In addition to the civil suit, Wee also engaged well known human rights lawyer M Ravi to act on his behalf and filed an application on 23 August 2013 at the High Court for Constitutional protection against discrimination of homosexual men in the workplace.

In filing the affidavit, Wee cited Article 12 of the Singapore Constitution which stated that "all persons are equal before the law and entitled to the equal protection of the law". He sought to have the Court declare that it held true regardless of sexual orientation.

M Ravi added that there was a lack of guarantee by the courts for equal treatment under the Constitution for homosexuals, because Singapore had no legislation that prohibited employment discrimination against gay men.

=Article 12 LGBT workplace equality campaign launched=

To fund the Constitutional suit, a group of gay and straight stakeholders and concerned volunteers calling themselves the Article 12 Non-discrimination @ Workplace Committee organised the "Stop hurting. Quit labelling" campaign which was launched online on the crowdfunding site Indiegogo on 13 November 2014.

A series of campaign videos was produced in which prominent civil society leaders and LGBT activists like Constance Singam, Braema Mathi, Rev. Yap Kim Hao and Jean Chong lent their support. The launch event was held at the home of film and theatre director Glenn Goei. About 50 people turned up at the event to show their support, including local actors Lim Yu Beng and Neo Swee Lin who made speeches.

Wee said in an interview at the launch that the campaign was meant to create awareness within the larger community on the lack of protection for homosexuals when it came to workplace discrimination.

Human rights lawyer M Ravi added, “We are here to honour this very important constitutional challenge to respect equality and non-discrimination in employment for gay men, lesbians, basically the LGBT community in Singapore. A constitutional challenge of this magnitude is public interest litigation because it affects a significant section of the population in Singapore. So this is not restricted to Lawrence Wee.”

dluUp7vOID8 

QRb9sO9UVP8 

3kgczK8QvbA 

Gw7QWysz8BM 

The Indiegogo campaign lasted until 12 January 2014 but unfortunately raised only a total of US$7,890, far short of its US$30,000 goal.

=Article 12 Constitutional application struck out by High Court=

On 30 May 2014, the High Court, which heard the case in chambers, struck out Wee's application and ordered him to pay the costs of the case.

We subsequently appealed against the High Court ruling in the Constitutional case as well, just as he did in his civil suit.

=Intervention summons filed by "Voices of the unseen"=


 * Main article: "Voices of the Unseen" files summons to intervene in High Court in matter of Article 12 Constitutional suit for LGBT workplace equality

On 6 March 2014, Lawrence Wee, who in collaboration with his lawyer M Ravi had set the company We Exist Pte Ltd and was serving as its CEO, announced:

"Today in the High Court of Singapore, three interested parties comprising a bisexual man, a male-to-female transvestite and an androgynous teenager have collectively decided to intervene in Lawrence Wee’s Article 12 Constitution suit (Case No. OS 763/2013)."

Brief background on the interested parties

 * Mok Zong Wei Ryan (Ryan), 17 years old

Ryan, a young bisexual, who struggles with the fact that society judges him for his sexuality and appearance; having personally experienced rejection from his ex-girlfriend, not because she didn’t love him, but reason being that she was afraid of how others would view her for being together with a bisexual man. Ryan felt that he needs to stand up and make a difference, to open the minds of society so that they stop judging others on their sexuality or appearance.


 * Guneres s/o Simon (Margaret), 57 years old

Having suffered discrimination and abuse for almost half a century, Margaret, a male-to-female transvestite, feels she’s never too old to make a difference as she has seen her fellow transgender friends suffer and even commit suicide over the fact that society has treated them with such discrimination and cruelty.


 * Kenneth-John Cheong Tuck Meng (DollFace), 19 years old

After being a victim of discrimination, mistreatment and sexual harassment, ‘DollFace’, a young androgynous teenager feels the need to stand up for its (and everybody else’s) right to be treated fairly without discrimination. After having lost its mother in late 2012 to cancer, on its mother’s death bed, she told it that society should learn to accept it for who it is. If its own mother can accept its identity, why should it be discriminated against by society?

Introduction at Asia Pink Awards 2014
Human rights lawyer M. Ravi was one of the 3 Singaporean recipients of the Asia Pink Awards 2014 organised by ELEMENT magazine. The event, held to honour activists who had contributed significantly to LGBT equality in Asia, was held at 7:30pm at Dream Factory, 76A Peck Seah Street on Sunday, 16 March 2014.

During his acceptance speech, Ravi introduced his 3 new clients, in addition to Lawrence Wee - Dollface, an androgynous teenager, Ryan, a bisexual and Margaret, a 57-year old male-to-female transvestite. All 5 of them, including Ravi, who identified as pansexual, would be intervening in both the upcoming Section 377A Constitutional challenge as well as the Article 12 Constitutional suit for LGBT workplace equality to broaden the representation of LGBT Singaporeans unfairly discriminated against by the law.

2FeVLs5lD00 

=Appeal against High Court ruling withdrawn=

On 23 April 2014, Wee announced that he and the 3 interested parties from "Voices of the Unseen" had withdrawn their appeal against the High Court's striking out decision of the Article 12 Constitutional suit. Wee wrote in a Facebook status update:

"To clarify and clear the confusion - the appeal that I have decided not to pursue is the constitutional challenge, whilst the civil suit, represented by Counsels Paul Tan and Choo Zhengxi, against my previous employer, Robinsons, is still very much alive.

It will be heard in the Court of Appeal in the last week of May 2014, of which I will announce the details once it's confirmed.

Attached are 2 news articles in Today and Straits Times which have presented a fair view of the constitutional challenge. I have ran the course despite the obstacles (too many to mention) that were presented before me. But I take heart that it rallied people regardless of their religious beliefs and sexual orientation that no employee should be discriminated for being different.

It leaves me now to focus on the Court of Appeal in May against Robinsons.

I thank you all for the support rendered and well wishes."

Amongst the factors which influenced his decision to withdraw the appeal were the exorbitant costs of continuing the challenge, the paucity of support from the LGBT community and the assessment by his lawyer M Ravi that the chances of winning were slim.

=Civil suit against Robinsons struck out by Court of Appeal=

In August 2014, the Court of Appeal upheld the High Court judgment on Wee's civil suit against Robinsons in which he claimed an unspecified amount in damages for constructive dismissal, ruling that his claim was without basis. Wee was also ordered to pay S$20,000 in legal costs.

The Apex Court stated that workers who said they were forced to quit after their employer made life unbearable should not expect to get any extra compensation other than that guaranteed in their contracts.

That was the norm in typical cases of constructive dismissal. Furthermore, workers had to show proof of actual loss stemming from the dismissal, such as mental or emotional duress, if they hoped to get extra damages.

=Analysis=

In October 2010, Singapore's leading civil society groups, including the LGBT advocacy one People Like Us, submitted reports on the country's human rights track record for the first Universal Periodic Review of all UN member states to be held the following year. They highlighted the discrimination faced by gay people in Singapore, amongst other issues.

bGLBVNThMwU 

During the inaugural Universal Periodic Review on 6 May 2011, Singapore's representative responded to questions from delegates from the UK, France, Ireland, Canada and The Netherlands regarding her continued discrimination of LGBT people by claiming that:

"In the area of employment, the Tripartite Allicance for Fair Employment Practices promotes and educates employers and the general public on fair and responsible employment practices.

Our legislation also allows those who feel that they have been unfairly dismissed, including on grounds of sexual orientation, to appeal to the Minister for Manpower to be reinstated. "

qke8yDBYugs 

During a pre-session review leading up to the 49th CEDAW conference held at the United Nations headquarters in New York City in late July 2011, the CEDAW Committee asked the Singapore state:

"Please comment on reports with regard to prevalent and systematic discrimination against women based on sexual orientation and gender identity in the social, cultural, political and economic spheres in the State party. What measures are being undertaken to address these problems, especially with a view to destigmatizing and promoting tolerance to that end?"

State representatives replied:

“The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, and have equal access to basic resources such as education, housing and health care.”

In the light of Singapore's courts' rulings on Lawrence Wee's civil and Constitutional suits, it is apparent that the rosy picture painted by Singapore's delegates at the UN is greatly at variance with the reality of local practice.

Singapore's government representatives will definitely be queried about this incongruity and have much to answer for during the next Universal Periodic Review in 2015.

=See also=


 * Article 12 of the Singapore Constitution: LGBT aspects
 * Archive of Lawrence Wee's affidavit to seek equal protection for gay Singaporeans under Article 12 of Constitution, 22 Aug 2013
 * "Voices of the Unseen" files summons to intervene in High Court in matter of Article 12 Constitutional suit for LGBT workplace equality
 * Discrimination against homosexuals in Singapore
 * Sayoni's contribution to CEDAW

=References=


 * Juliana June Rasul, "Ex-senior exec sues Robinsons, claims he was forced to resign for being gay", The New Paper, 9 February 2013,.
 * Walter Sim, "Gay man applies for constitutional protection against workplace discrimination", The Straits Times, 23 August 2013,.
 * Sylvia Tan, "Singapore: Gay man seeks court declaration that gays are equally protected under the constitution", Fridae, 23 August 2013.
 * Sudeshna Sarkar, "‘Harassed’ former senior manager seeks court protection for gays in Singapore’s workplace", Gay Star News, 24 August 2013,.
 * Team Trevvy, "Court Asked to Declare on Employment Equality", 4 October 2013,.
 * Nurul Azliah Aripin, "Gay man launches Singapore campaign for workplace discrimination protection", Yahoo! News, 16 November 2013,.
 * Team Trevvy, "Stop Hurting, Quit Labelling", 16 November 2013.
 * Walter Sim, "High Court rejects anti-discrimination bid by gay man", 26 November 2013,.
 * "Court dismisses man's bid against workplace homosexual discrimination", Channel News Asia, 30 May 2014,.
 * K C Vijayan, "No right to claim extra pay if 'forced' to resign: Court", The Straits Times, 15 August 2014,.
 * "High Court: Employees who are "forced to resign" are not entitled to extra compensation", 15 August 2014,.
 * "Performance NOT prejucice", Human Resources Magazine, July 2014,,,,.

=Acknowlegdements=

This article was written by Roy Tan.