Just launched: “Guide to Malaysian Employment Law”

I have always believed that by writing about the law and related topics, I am not only sharing knowledge with others, but also richly expanding and deepening my own understanding of the topics I write about. This is why I have been consistently publishing my legal writings from my early days of practice, going back 18 years now.

Today, we have launched a Guide to Malaysian Employment Law. This Guide will be hosted on a standalone page on The Malaysian Lawyer, and is a one-stop introductory guide to Malaysian employment law, including categorised links to employment law articles I have published on The Malaysian Lawyer.

The topics in the Guide have been selected based on feedback from in-house counsel and HR professionals, and cover the usual high-level background legal information they would like to have on-hand, particularly as professionals from other jurisdictions considering employment issues in Malaysia.

The Guide will be constantly-evolving, and its contents will be updated from time-to-time. Please share the Guide with others who may find it useful, and leave a comment if you have any feedback, or requests or suggestions for other employment law issues that should be covered.

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New laws require goods/food delivery gig workers to register under Self-Employment Social Security Scheme from 1 October 2021

New laws coming into force on 1 October 2021 will require self-employed goods and food delivery workers to be registered under the Self-Employment Social Security Act 2017 (“the SESS Act”) and contribute to the fund under the Self-Employment Social Security Scheme.

The Self-Employment Social Security Scheme was introduced to provide protection against employment injuries including occupational diseases and accidents during work-related activities for individuals who are self-employed under the SESS Act. It was initially compulsory only for gig workers in the passenger transportation sector (taxi, e-hailing, and bus drivers), but has since been expanded to other sectors, including goods and food delivery gig workers. These latest amendments now make registration compulsory for all goods and food delivery gig workers.

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Case Update: Another company’s retrenchment of employees due to COVID-19/MCO deemed unfair by Industrial Court

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:

  1. Mohamad Sahrul Bin Kahulan v. Lourdes Medical Services Sdn Bhd (Award No. 1295 of 2021).
  2. Gawri A/P Muthadakan v. Lourdes Medical Services Sdn Bhd (Award No. 1296 of 2021).
  3. Lalitha A/P Subramaniam v. Lourdes Medical Services Sdn Bhd (Award No. 1297 of 2021).
  4. Rasalechumi A/P Kanagaratnam v. Lourdes Medical Services Sdn Bhd (Award No. 1298 of 2021).
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COVID, MCO, and the Malaysian legal industry — Part 2: Work culture, mental health, jobs, and the future

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

This is Part 2 of our special market report on the effects of the COVID-19 pandemic and the various MCOs on the Malaysian legal industry. Before reading on, you should read Part 1, where we addressed the financial issues (paycuts, volume of legal work, and revenues), remote working, and technology.

In this second part, we report on the impact of the pandemic on office/work culture, how law firms addressed employee mental health issues, and examine how the industry could have done better in dealing with the various challenges, and what the future holds. Again, these findings are not our own conclusions, but are a collection of the views of several lawyers who very kindly took the time to share their experiences with us. Some have asked to remain anonymous.

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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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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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