The High Court in the judicial management application of Re Scomi Group Bhddecided that public listed companies cannot apply for judicial management. Hence, Scomi Group Bhd’s judicial management application was dismissed.
I have only had sight of the brief grounds of decision and will only make some short points below. I may write a more detailed case update if the full grounds of judgment are issued.
In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.
There was a very sharp rise in retrenchment numbers in Malaysia in 2020, particularly in the aftermath of the first Movement Control Order (MCO), which started in March 2020. We are now seeing Industrial Court decisions as a result of unfair dismissal complaints lodged by employees who had their employment terminated in the first half of 2020, and I expect we will continue to see a steady succession of these decisions in the coming months.
As I have often explained, while employers are legally entitled to dismiss employees where the retrenchment is for genuine reasons, employers must be able to show that the termination was not improperly motivated. I recently highlighted one case where the Industrial Court decided that the retrenchment of an employee, which the employer said was due to the challenges caused by the COVID-19 pandemic, was an unfair dismissal: “Case Update: Industrial Court finds retrenchment due to effects of COVID-19/MCO was unfair”.
In this article, I summarise four recent awards involving retrenchments carried out at the same time by the same employer, which the employer said was due to the effects of the MCO and pandemic:
Mohamad Sahrul Bin Kahulan v. Lourdes Medical Services Sdn Bhd (Award No. 1295 of 2021).
Gawri A/P Muthadakan v. Lourdes Medical Services Sdn Bhd (Award No. 1296 of 2021).
Lalitha A/P Subramaniam v. Lourdes Medical Services Sdn Bhd (Award No. 1297 of 2021).
Rasalechumi A/P Kanagaratnam v. Lourdes Medical Services Sdn Bhd (Award No. 1298 of 2021).
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).
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.
The High Court in the Eka Noodles Berhad v Norhayati binti Tukiman (grounds of judgment dated 21 August 2021) decided that a single member of the company can put in the request for the directors to hold a company general meeting.
Wong Chee Chien writes a case update on when an admiralty claim trumps insolvency.
More often than not, a creditor with an admiralty claim would take steps to arrest a ship or vessel of the debtor, for the purposes of selling it so that the proceeds of sale will be held as pre-judgment security for the creditor.
However, if the debtor subsequently goes into liquidation, what happens to the proceeds of sale from the arrested vessel? Should the proceeds be paid to the creditor, or should they be distributed to all unsecured creditors pari passu? These issues were dealt with by the High Court in Dan Bunkering (Singapore) Pte Ltd v The Owners of the Ship or Vessel “PDZ Mewah” & Anor (see grounds of judgment dated 9 August 2021).
Although this decision deals with several issues, this case update focuses on the question of whether the creditor’s admiralty claim trumps the insolvency regime of pari passu distribution among unsecured creditors. Continue reading →