COVID, MCO, and the Malaysian legal industry — Part 1: Money (paycuts, revenue), remote working, and technology

This market report is brought to you by The Malaysian Lawyer, co-founded by Lee Shih and Marcus van Geyzel.

If asked to think back to March 2020, when Malaysia first went into “lockdown” or a “Movement Control Order” (MCO), Malaysians may feel like the period of time that has passed has been the equivalent of several lifetimes. Or that it now seems to have gone quickly, and certainly doesn’t seem like it was 18 months ago. Or perhaps that it simultaneously feels like both a very long time and a very short time ago, in that time-bending perspective-warping haze that the pandemic seems to have permanently brought into our lives.

For the Malaysian legal industry, much has happened. If we cast our minds back to those early-MCO days, there was a scramble for lawyers to figure out how to operate outside of the office, without access to printed documents and files.

To be honest, some lawyers still haven’t quite figured it out, but there has been much progress overall. Compelled by the judiciary, lawyers shuffled out of the Stone Age and into conducting video trials online. The National and State Bars successfully convened their AGMs online (after a huge COVID scare from the in-person KL Bar AGM). Law firms rolled out pay-cuts, and freezed hiring, increments, and bonuses. As work dried up in some areas, many lawyers pivoted into new practice areas. Call ceremonies also moved online. Aspiring lawyers had to deal with huge delays to CLP exams and results.

There were lots of new law blogs launched (21 are still active), and law students, lawyers and firms were noticeably more active on LinkedIn (when TML wrote about Malaysian law firms on LinkedIn in 2019, we could only find 8 active accounts; when researching our latest law firm LinkedIn list, we found almost 80!) and Clubhouse (the biggest Malaysian legal Clubhouse club Malaysian legal community has 3,600+ members).

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Case Update: Extensions to Judicial Management Order Set Aside

In the matter involving Macro Resources Sdn Bhd, the Shah Alam High Court has set aside the extensions of the judicial management order made beyond the period of the initial 12 months. This decision appears to confirm that a judicial management order in Malaysia can only be made for the initial 6 months and with a single extension of 6 months only (i.e. a maximum period of 12 months).

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Top 20 Most-Followed Malaysian Law Firms on LinkedIn: 2021

In September 2019, we featured the Malaysian law firms active on LinkedIn. The list in 2019 covered less than 10 law firms.

Two years later, we have seen a big growth in the numbers and followers on Malaysian law firm LinkedIn pages. From a search across LinkedIn, we have seen close to 80 law firms with LinkedIn pages. There is also a large increase in the number of Malaysian lawyers starting their LinkedIn accounts. All these factors showcase the strength of LinkedIn as a networking and professional social network.

We feature below the top 20 most-followed Malaysian law firms for the year 2021. The numbers are as at 13 September 2021. Continue reading

Employee poor performance: Some recent cases

The proper management of under-performing employees is always a tricky proposition. While the law recognises poor performance as one of the reasons that would constitute “just cause” for dismissing an employee, many employers make mistakes which result in dismissed employees winning unfair dismissal claims. There have also been instances where employees have been able to walk out and claim that they have been constructively dismissed due to the employer putting them on a performance improvement plan (“PIP”).

There are many variables that will determine whether a poor performance termination was carried out fairly. It’s always useful for employers and decision-makers to review how other employers have managed under-performing employees. In this article, I briefly summarise the following recent cases related to PIPs and poor performance dismissals:

  1. Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad (Award No. 94 of 2021).
  2. Charles Selvam Andrew Francis v. Kebabangan Petroleum Operating Company Sdn Bhd (Award No. 256 of 2021).
  3. Thomas Kuruvilla v. Malaysia Digital Economy Corporation Sdn Bhd (Award No. 151 of 2021).

These summaries will provide valuable insights on the issues the Industrial Court considers when assessing performance-related terminations.

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Case Update: No Oppression Remedy against Chairperson of General Meeting

The High Court in Safari Alliance Sdn Bhd v Tan Lee Chin and others (grounds of judgment dated 25 August 2021) dealt with how a shareholder cannot maintain an oppression action against rulings made by the Chairperson at a general meeting. Such rulings do not amount to “affairs of the company” for oppression.

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HR Minister says employees could face fines or jail for refusing vaccinations. Is this legal?

Malaysia’s Human Resources Minister M. Saravanan caused a stir late last week when he was widely reported (see Bernama, Malay Mail, The Star) as saying that action could be taken against employees who refuse to be vaccinated. While recognising that vaccinations have not been made mandatory under Malaysian law, Saravanan said that the authorities could take action under the Occupational Safety and Health Act 1994 (“OSHA”).

The legal position regarding mandating employee vaccinations has been widely-discussed in recent weeks, and I’ve previously shared my views on this blog (“Is it legal for Malaysian employers to make vaccinations mandatory for employees?”), as well as with the media (“Can Malaysian employers make Covid-19 vaccinations mandatory for their staff? Lawyers explain.”).

So what exactly does OSHA provide, and can the authorities really rely on OSHA to take action against employees who refuse to be vaccinated?

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