Man who dated his boss awarded S$82,000 in unpaid salary in wrongful termination suit

SINGAPORE: A man met the founder of a medical equipment company while taking a course for working professionals and they began dating months later, before moving in together.

The man later joined the woman's company for an agreed basic salary of S$12,000 (US$9,335) per month, with a guaranteed minimum employment period of 12 months. But the salary was altered to S$6,100 in some months and for about six months, no salary was paid at all.

The man was later fired from his job, with the company claiming he had taken large blocks of unpaid leave and did not carry out his job duties.

He sued the company for breaching his employment contract, not paying him the salaries he was owed and wrongful termination, among other things.

In a judgment made available on Saturday (Sep 6), a district court awarded Mr Bojan Trivic a sum of about S$82,000 for salaries owed to him.

According to the judgment, Mr Trivic met Gen-Y (S) founder and sole director Ms Xue Yan in February 2022 while taking the Global Executive MBA Course for working professionals offered by business school INSEAD.

They began dating in mid-June 2022. In August 2022, Ms Xue invited Mr Trivic to move in to live with her and her son.

In a contract dated Aug 8, 2022, Gen-Y offered the position of business development director to Mr Trivic, which he accepted.

MR TRIVIC'S CASE

The contract stated that his employment was to take effect from Aug 8, 2022, with a guaranteed minimum employment term of 12 months. The contract also stated that his basic salary would be S$12,000 with a telephone allowance of S$100 per month.

Since Mr Trivic started working on Aug 8, 2022, his salary for that month was pro-rated and he was paid S$9,469.56, said Mr Trivic's lawyers, Mr Ivan Ng and Ms Phyllis Wong from Infinitus Law.

He was paid the sum of S$12,000 for September 2022. However, after this, his pay in October and November 2022 was revised to S$6,100 without notice nor consent and without reasonable ground, the lawyers claimed.

He also received no salary for December 2022, as well as from April through August 2023.

In early January 2023, Ms Xue sent an email to Mr Trivic on behalf of the company stating that his basic monthly pay would be revised or reduced to S$6,000 on the ground that his assistance in a potential merger and acquisition project was no longer needed.

Around this time, Ms Xue broke up with Mr Trivic. During an argument with Ms Xue in January 2023, Mr Trivic sustained physical injuries, resulting in 14 days of hospitalisation leave, the judgment stated. 

In late February 2023, Ms Xue sent another email to Mr Trivic to state the company's appreciation of his "efforts on work process improvements and digital transformation".

In the email, she also informed him that he would "finish the project in the end of March". Mr Trivic said this was a notice of termination to him. Ms. Xue sent another email in late March 2023, telling Mr Trivic to pass all follow-up work to another employee because the latter was "leaving the company end of this month".

Mr. Trivic sued the company for S$97,427, which he said represented the shortfall in salary he should have received for the minimum period of August 2022 to August 2023, as well as the annual wage supplement for the year ending 2022.

THE COMPANY'S CASE

The company was defended by Mr Gregory Vijayendran and Ms Meher Malhotra from Rajah & Tann.

The lawyers argued that the contract had been drafted by Mr Trivic. Although it stipulated a minimum guaranteed employment term of 12 months, it was within both sides' "reasonable contemplation" that his employment would be project-specific.

The contract was for him to work on two projects for the company's clients, the lawyers asserted.

The company claimed that the pro-rating of the August 2022 salary reflected not only his start date but also the fact that he was on unpaid leave in Switzerland from Aug 21 to Aug 30, 2022.

In September 2022, Mr Trivic received his full remuneration despite being on unpaid leave for one day to attend a course called "Knowledge Management Challenges (KMC)", said Gen-Y.

The revision of his pay for October and November 2022 was not unilateral and notice had been given to him, said the company's lawyers.

From August 2022 to March 2023, Mr Trivic "continuously" took unpaid leave and was away from work. There were only six days in October 2022 when he worked or was on public holiday, said the company.

In November 2022, he worked for 22 days, while he worked only five days or was on public holiday in December 2022, the lawyers added.

Mr Trivic was purportedly away from Dec 5 to Dec 15 that year for a course and on vacation in Phuket from Dec 18 to Dec 28.

The company claimed that Mr Trivic did not give notice for his absence and did not request in writing to take annual leave or submit any applications for his absence.

Gen-Y's lawyers argued that Ms Xue had warned Mr Trivic verbally sometime in September or October 2022 that the company would not pay him for his time away from work.

According to them, Mr Trivic did not dispute the proposed salary revision to S$6,100 per month but replied that he would "find a company somewhere else".

The company also argued that Mr Trivic had failed to devote his full business time, attention, skills and efforts to the "faithful performance" of his duties and to use his best efforts to advance the business interests of the company, breaching a clause in the contract.

He also failed to respond to Ms Xue's emails about his salary reduction and the termination of employment, the company claimed.

In the circumstances, the company had taken "reasonable steps" to mitigate its losses by pro-rating his salary to the "true value" of the services he had provided, the lawyers argued.

They said Ms Xue informed Mr Trivic around January 2023 that his employment pass would be terminated at the end of March 2023 as he did not "add much value" to the company and he would have to look for another job.

As only a reasonable termination notice period of one month is required to be given, there was no wrongful termination to the contract, the lawyers said, noting that Ms Xue sent an email to Mr Trivic on Feb 21, 2023 about the termination of the contract by the end of March 2023.

THE COMPANY'S COUNTERCLAIM

The company counterclaimed for damages from August 2022 to January 2023 for Mr Trivic's breaches of the contract. These included breaching the clauses for failing to respond to emails, failing to work during stipulated work hours and taking continuous blocks of unpaid leave over the limit per calendar year of 30 working days.

In response to the counterclaim, Mr Trivic claimed that the company and Ms Xue were at all times aware and verbally notified that he had to be away from Singapore to attend the KMC course.

There was no requirement for Mr Trivic to provide any official notice or request to the company in writing for his absence because he was in a relationship with Ms Xue and stayed with her from August 2022 to late January 2023, he said.

During this time, they frequently went to work together and Ms Xue knew where he was and the work he had done. Mr Trivic claimed that it was Ms Xue who invited to join her on holiday and that he would not have accepted had she made it clear that his salary would be deducted or reduced.

He pointed to a clause in the contract and said the company did not have the right to reduce his salary without prior mutual written consent of both sides.

THE JUDGE'S FINDINGS

The judge rejected Ms Xue's evidence that Mr Trivic's employment was project-specific for several reasons.

First, Ms Xue knew that Mr Trivic did not have any background in merger and acquisition projects and agreed on the stand that he was not employed only for such projects.

The contract also makes no specific mention of these projects, including one called the MediHub project, and other employees testified about how Mr Trivic contributed to other areas of work.

The judge found that the company had failed to establish that Mr Trivic had breached the unpaid leave clause in his contract. Not only was there no evidence that Mr Trivic was warned about exceeding the 30 working-day limit, Ms Xue was "clearly aware" that Mr Trivic would be away from Singapore since they lived together.

In fact, they were together in places like Abu Dhabi, Phuket and Dubai and the requirement of having to apply for leave did not apply to Mr Trivic given their relationship, with a human resources employee testifying that Mr Trivic was not included in a group chat used to track leave-taking.

"This blurring of the boundaries between work and their personal lives ... was clearly accepted by Xue Yan and consequently the claimant," said District Judge Sia Aik Kor.

The company also failed to prove that Mr Trivic had breached the clause on working hours, providing no evidence that he did not comply with working days and hours other than the fact that he may not have been physically in the office on those days.

As the company had failed to prove that Mr Trivic had breached his contract, it was not entitled to revise his salary, the judge found.

Judge Sia also found that Mr Trivic's employment was not validly terminated, since the email Ms Xue sent on Feb 21, 2023 did not provide the two months’ written notice required under his contract and did not fulfil the minimum employment term of 12 months.

There was also no express agreement to the termination as required, even if Ms Xue had informed Mr Trivic as early as January 2023 that his employment would be terminated, found the judge.

The judge found that under the contract, Mr. Trivic was guaranteed a minimum employment term of 12 months with a monthly salary of S$12,100.

She found that he was working remotely as allowed by Ms Xue on some days when he was away from the office and was on paid annual leave for other days.

For the total period between August 2022 and August 2023, Mr Trivic was paid only about S$51,800, when he should have been paid about S$134,000.

The judge ordered the company to pay him the difference of about S$82,000.

However, Judge Sia did not allow Mr Trivic's claim for an annual wage supplement of S$4,000, finding that it was performance-related and discretionary, with the quantum to be determined by management and with no contractual obligation to pay it.

The judge also dismissed the company's counterclaim against Mr Trivic.