See Jen Sen (Xue Rensheng) v Prudential Assurance Company Singapore (Pte) Ltd

Facts

Mr See Jen Sen worked as an agent, associate manager and agency leader of Prudential Assurance Company Singapore (Pte) Ltd from 29 January 2003 under a written Agency Agreement. Prudential communicated scheme terms to agents through internal circulars called Agency Instructions (AIs).

In October 2020, while a Financial Services Director, he came across social media advertisements for life insurance which he believed breached MAS advertising guidelines. He raised this with the compliance team on 12 October 2020 and wrote to the then-CEO on 17 October 2020, who passed the matter to the Chief Risk Officer. After about three months without result, he wrote to the CEO again on 7 January 2021; the CEO replied on 11 January 2021, and Mr See's same-day proposals went unanswered. Between 10 May 2021 and 18 October 2021 he wrote to MAS on 13 occasions under the pseudonym "Patrick Goh". After a meeting in November 2021, Prudential served a notice on 7 March 2022 under cl 13(c) of the Agency Agreement, giving 14 days' notice, and his service ended on 21 March 2022.

In Originating Claim No 466 of 2023 he sued for wrongful termination, claiming he was dismissed as a whistle-blower, and sought payments under the Agency Leaders Long-Term Incentives Scheme (AL-LTI Scheme), entry into a sell-out/retirement scheme, relief under the Unfair Contract Terms Act 1977 and restitution for unjust enrichment. Prudential denied liability and counterclaimed that he had breached the agreement by not using its internal channels for his complaints.

Issues

1. Whether the termination by notice breached an implied term of good faith, mutual trust, confidence and goodwill
2. Whether the claimant was entitled to payments under the AL-LTI Scheme and to join the Sell-out Scheme
3. Whether the payment conditions offended the Unfair Contract Terms Act or left the insurer unjustly enriched
4. Whether the claimant breached cll 5 and 18(a)(i) of the Agency Agreement by complaining to MAS

Holding

The court dismissed all of the claimant's claims and also dismissed the insurer's counterclaim. The parties were to make submissions on costs within seven days.

Reasoning

Clause 13(c) gave either party an express right to end the agreement on fourteen days' written notice. Following Maybank Singapore Ltd v Synergy Global Resources Pte Ltd [2024] 3 SLR 1316 and Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2022] 1 SLR 1318, an implied duty of good faith does not attach to an express right to terminate, and no reasons are needed. Prudential acted within its strict legal rights, so the motive alleged did not matter.

The AL-LTI payments required the agency leader to hold a valid agency agreement at the point of payment. The next tranche fell due from 2023, after his termination, so that claim failed. His emails of 14 March 2022 and 20 March 2022 were not a valid sell-out application, since they did not accept the Reference Price or an Agreed Price as cl 4.2 of AI 005/14 required, which he conceded in cross-examination; Prudential's reply was a refusal of a plea for retirement as an alternative to termination, not a rejection of an application.

The UCTA argument that cl 5.1 was an exclusion clause had already been struck out in See Jen Sen v Prudential Assurance Co Singapore (Pte) Ltd [2024] SGHC 76. Under s 3(2)(b), cl 5.1 did not make performance substantially different from what was expected; it set out when payment would and would not be made. As no rights had accrued, Prudential was not enriched at his expense.

On the counterclaim, he had first used the compliance channel, the CEO had acknowledged his direct email and had it investigated, and he went to MAS only after the internal process proved ineffective. The judge held that the duty of good faith and undivided interest was circumscribed by a broader public duty to report breaches of MAS guidelines in good faith, and found that the other agents' acts plainly contravened those guidelines, so there was no breach.

From the judgment