Court of Appeal

Case Update: Court of Appeal Confirms Liquidator Cannot Grant Sanction for Legal Proceedings

Lee ShihLeave a comment

On 16 November 2023, the Court of Appeal in Oren Venture Sdn Bhd v Small Medium Enterprise Development Bank Malaysia Berhad (Court of Appeal Civil Appeal No. W-02(IM)(MUA)-587-04/2022) upheld the High Court decision (reported at [2022] 12 MLJ 247 and where I had written about it here).

Set out below is the extract from the Court of Appeal cause list website and with the Court setting out the brief grounds of decision (in the Malay language only). The full written grounds of decision do not appear available yet. I may write a fuller update once I have read the written grounds.

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Court of Appeal: Abuse of process for an employee to claim compensation for wrongful dismissal via the civil courts instead of the Industrial Court

Marcus van Geyzel1 Comment

There has always been an unresolved question of whether a dismissed employee could bring a civil claim against his or her former employer, instead of or even in addition to a wrongful dismissal claim at the Industrial Court.

The courts have never previously expressly ruled out the possibility of such claims — theoretically this could be a claim for damages, breach of contract, or loss of potential earnings — and the threat of such claims have also sometimes been used by high-ranking or C-suite employees as a bargaining chip when negotiating lucrative severance packages.

More confusion arose as a result several High Court decisions, and the 2020 Court of Appeal decision in Ng Kim Fong v Menang Corporation (M) Berhad [2020] MLJU 644, where the court granted the employee damages for breach of contract in the form of payment of her contractual retirement benefits.

However, the recent Court of Appeal decision in 7-Eleven Malaysia Sdn Bhd v AH Krishnan [Civil Appeal No. W-02(IM)(NCVC)-629-04/2022] has finally provided much-needed clarity on this situation. In short, the Court of Appeal ruled that a wrongful dismissal (loss of employment) claim should be brought via the Industrial Court, and that a civil suit where the employee seeks monetary compensation via a common law action ought to be struck out as being an abuse of process of the court.

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Case Update: Court of Appeal Invalidates Meeting Due to Failure to Wait for 15 Minutes

Lee Shih2 Comments

The Court of Appeal in Abdul Malek Faisal bin Mohd Hyffny v Shaikh Marikhzan Jalani & 2 others (grounds of judgment dated 21 February 2023) invalidated an extraordinary general meeting (EGM) where the shareholders had passed a resolution to remove the director and chairperson of the company. The appeal turned on whether the shareholders should have waited for the full 15 minutes before electing one of their number to be chairperson of that meeting.
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Case Update: Further Decision That Listed Companies Cannot Apply for Judicial Management

Lee ShihLeave a comment

This update is further to the earlier High Court decision in Re Scomi Group Bhd which held that public listed companies cannot apply for judicial management.

Another public listed company, Dolomite Corporation Berhad, has also failed in its judicial management application.

On 8 March 2022, Dolomite announced that the Shah Alam High Court had dismissed its judicial management application. Among others, the Court held that public listed companies are not allowed to apply for judicial management pursuant to section 403(b) of the Companies Act 2016 i.e. being a company subject to the Capital Markets and Services Act 2007. Continue reading →

Case Update: Court of Appeal Decides Minister Can Grant Extension of Time for Vacant Possession

The Malaysian LawyerLeave a comment

Guest writer, Annabel Tan, shares with us the Court of Appeal decision in the Bluedream case dealing with whether the Minister can extend time or not.

 

The Court of Appeal in Bluedream City Development Sdn Bhd v Kong Thye & 184 others and 5 other appeals (grounds of judgment dated 24 January 2022) decided that the Minister has the power to grant an extension of time to a housing developer to deliver vacant possession. The Court of Appeal distinguished an earlier Federal Court decision.

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Case Update: Federal Court rules that an employer cannot use reasons discovered post-dismissal to justify an employee dismissal

Marcus van GeyzelLeave a comment

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.

It is not uncommon, in instances where an employee has been dismissed, for new facts or circumstances to be discovered post-termination which are then treated as “justifying” the dismissal in the eyes of the employer.

For example, where an employee has been dismissed for poor performance, the employee or employees who then take on the dismissed employee’s responsibilities may discover a trail of errors or negligence that ran deeper than was known at the point of termination. In other cases, the employee may have been dismissed for one reason, but the employer later uncovers evidence of other misbehaviour or misconduct which the employer then takes as further proof that the dismissal was “the right decision”.

While these post-dismissal discoveries may make an employer rest more easily, convinced that dismissal was the correct option, what would happen if the employee brings an unfair dismissal claim? Would an employer who dismissed an employee because of Reason A be then able to justify the dismissal by later saying that, after the termination, they also discovered Reason X, Y, and Z, and that therefore even if Reason A was weak and insufficient to justify termination, the court should also consider Reasons X, Y, and Z?

This was the issue that went all the way to the Federal Court recently, in Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 4 ILR 417.

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