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 2013, former manager of Robinsons, Lawrence Wee, filed an application with the High Court to include LGBT Singaporeans included as one of the enumerated categories.

Unfortunately, his application was struck out by the High Court in May 2014.

As such, it renders LGBT Singaporeans vulnerable to discrimination and abuse.

=Civil suit against Robinsons=

In what is believed to be a first here, a Singaporean man has sued his former company, claiming he was harassed into leaving his job because he is gay.

In papers filed in the High Court in December, Lawrence Bernard Wee Kim San, who turns 40 this year, is claiming "constructive dismissal" against Robinsons.

He says his former boss at the departmental store, Jim McCallum, had harassed him because he did not agree with Mr Wee's sexual orientation. Mr Wee worked for Robinsons for six years before resigning last August.

Robinsons, however, denies his claims that he was unfairly harassed by Mr McCallum.

It denies that any of his claims are true, including his claim that Mr McCallum had told Mr Wee's direct supervisor that Mr Wee "is wrong already as a person".

=Article 12 Constitutional suit=

A former Robinsons employee on Friday filed an application at the High Court for constitutional protection against the workplace discrimination of homosexual men.

Mr Lawrence Bernard Wee Kim San, 40, had previously brought a suit against his former employer in December 2012, claiming to have been harassed into resigning because he is gay. The suit has been dismissed on purely contractual grounds.

In filing the application, Mr Wee cited Article 12 of the Singapore Constitution, which states that "all persons are equal before the law and entitled to the equal protection of the law". He sought the Court to declare that this is so regardless of sexual orientation.

His lawyer M Ravi, said that there is a lack of guarantee by the courts for equal treatment under the Constitution for homosexual men, because Singapore has no legislation that prohibits employment discrimination against gays.

=Article 12 LGBT workplace equality campaign launched=

A campaign called " Stop hurting. Quit labelling " to fund the Constitutional suit was launced on the crowdfunding site Indiegogo on 13 November 2014. It lasted until 12 January 2014 and raised a total of USD$7,890, far short of its USD$30,000 goal.

As equality laws are being revised worldwide, the Singapore courts have been petitioned to declare that Constitutional equality should apply in the workplace.

Lawrence Wee Kim San was recently dismissed by Robinsons, the iconic department store, on the grounds of sexual orientation.

In a historic application, Wee, a former senior management executive, is applying to the High Court here to declare that Article 12 should apply to all forms of discrimination at work.

The city state, heavily dependent on high-skilled labour, has sought to make Singapore attractive to professionals. In recent years, the economy has stepped up efforts to stem the outflow of Singaporean and foreign professionals, attracted by rapid development in neighbouring countries.

In May 2011, at the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Review, 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, widely regarded as a test case, is expected to declare the law in respect of workplace discrimination. Having significant implications for labour relations, it will be watched closely when it is heard in November.

A group of concerned citizens, calling themselves Article 12Non-discrimination @ Workplace Committee, have come together to support the application. Roy Tan, a spokesperson for the committee said, “Our name makes reference to the Constitutional provision that entitleseverybody to equal protection of the law.”

Wee’s lawyers noted, “With the challenge before the Court, Wee, on behalf of all Singaporeans, is seeking a declaration that Article 12 should be interpreted to confirm the government’s position that all persons, regardless of gender, sexual orientation and gender identity, are indeed and in fact protected by Singapore’s employment laws.”

Tan added, “In the coming days, the Article 12 Non-discrimination @ Workplace Committee will release further information on the campaign and opportunities for like-minded individuals to show their support.”

For further information, please contact Article 12 Non-discrimination @ Workplace Committee at:

article12campaign@...

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A former Robinsons employee seeking constitutional protection against workplace discrimination of homosexual men has launched a campaign to create awareness about the issue and raise funds for legal costs.

Lawrence Bernard Wee Kim San, together with seven other people, launched the campaign “Stop hurting, quit labeling” on Friday evening 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, and former Singapore Democratic Party member Vincent Wijeysingha.

In his application filed with the High Court in August, Wee is seeking a declaration that protection against discrimination under Article 12 of the Constitution should include within its ambit all Singaporeans regardless of race, religion, place of origin, gender and sexual orientation.

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.

“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,” said human rights lawyer M Ravi at the event. Ravi is also involved in a separate constitutional challenge of section 377A of the Penal Code which criminalises sex between men.

The campaign is aiming to raise a total of S$30,000, said Wee, who had filed a civil suit against his former employer in December 2012 for allegedly harassing him and forcing him to resign because of his homosexuality. The suit was dismissed on contractual grounds.

An account on crowd funding site Indiegogo where people can go to donate to the campaign has been set up.

=Constitutional application struck out by High Court=

The High Court has struck out an application by a former Robinsons employee to have discrimination against gay men declared unconstitutional.

The Court, which heard the case in chambers, also ordered Mr Lawrence Bernard Wee Kim San, 40, to pay the costs of his case in the decision issued on Monday.

Mr Wee, a former assistant general manager for cards and corporate sales at Robinsons, had claimed that he was harassed into resigning in August last year due to his homosexuality.

He filed an affidavit in August this year asking the court to declare that Article 12 of the Constitution applies, regardless of sexual orientation. Article 12 states that "all persons are equal before the law and entitled to the equal protection of the law".

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



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 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 of them, including Ravi, who identifies as a 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.

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=Appeal against High Court ruling withdrawn=

On 23 April 2014, Wee announced that he had withdrawn his appeal against the High Court's striking out decision of his constitutional suit. He 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 annouce 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 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 High Court=

A former Robinsons employee who came into the media spotlight after he sought a court declaration that workplace discrimination against gays was unconstitutional has exhausted his legal avenues for what he claimed was wrongful dismissal by his former employers.

On Thursday, the highest court of the land upheld a High Court ruling on the case in December last year and dismissed Mr Lawrence Bernard Wee Kim San's bid to claim an unspecified amount in damages for constructive dismissal, ruling that his claim was without basis. Mr Wee, 40, was also ordered to pay S$20,000 in legal costs.

The suit arose after the former manager at Robinsons department store quit his job in August 2012.

Although he was given four months' salary in lieu of notice -- the terms of his contract only stipulated a payment of two months' salary in lieu of notice -- as well as cash for his unconsumed annual leave, Mr Wee claimed that it was a case of constructive dismissal as his former boss had harassed him into leaving the job because he did not agree with his homosexuality.

Constructive dismissal occurs when an employer makes life so difficult that an employee is, in effect, forced to resign.

Four months after his resignation, Mr Wee filed for damages against his employer. Robinsons however denied any "biasness", "unfair treatment" or "persecution" by anyone at the store, or that Mr Wee faced "difficulties" or "threats" when he wanted to leave the company.

While this civil suit was ongoing, Mr Wee sought a declaration from the court last August that Article 12 of Singapore's Constitution, which provides for the equal protection of the law, prohibits workplace discrimination of homosexual men. A High Court assistant registrar struck out the case, after finding that it was without merit.

Mr Wee filed an appeal against this decision, but withdrew it in April this year.

Workers who say they are forced to quit after their employer makes life unbearable should not expect to get any extra compensation other than that guaranteed in their contracts.

This is the norm in typical cases of "constructive dismissal". And workers will have to show proof of actual loss stemming from the dismissal, such as mental or emotional duress, if they hope to get extra damages.

The top court in Singapore made this clear in dismissing former Robinsons employee Lawrence Wee's appeal against the High Court, which had rejected his claim for damages after he argued that he had been pushed out by his employer.

The 40-year-old had worked as assistant general manager of corporate sales and cards at retailer Robinson & Co (Singapore) for about six years.

=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

=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.