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.
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.
COVID-19 has had a devastating impact on jobs around the world. Almost every country has experienced an economic downturn, and as businesses struggle to steady the ship and stay afloat, many employers have been doing their best to retain their employees where possible. It has been a very busy 2020 for employment lawyers and HR professionals.
Unfortunately, for employers in many industries, COVID-19 has negatively affected their revenues too significantly, and cutting jobs has become the only solution to keep the businesses going. This has also been the case in Malaysia, where the Movement Control Order crippled many businesses, and the government has been unable to provide meaningful assistance to employers. For example, the aid provided under the Prihatin wage subsidy program is very low and short-term compared to other countries, and comes with conditions attached that make it impractical for many employers.
As a result, there have already been many retrenchments carried out in Malaysia, with even more to come. Indicative of the times, in the past couple of months, we have suddenly seen a significant amount of traffic on an old article I published here in January 2016 — “What you need to know about the law on retrenchment of employees”.
But retrenchments can be tricky. Over the years I’ve seen many employers make mistakes that result in unfair dismissal claims, a messy and costly court process, and sometimes very big court awards to be paid to former employees. Often, these mistakes are made even by employers who have done their research on the law, and sometimes even by those who have obtained legal advice (which ultimately turned out to be incomplete or flawed).
Knowing how to properly carry out a retrenchment exercise — and knowing what practical mistakes and missteps to avoid — comes with experience. It also helps greatly to analyse how other businesses have implemented retrenchments (both properly and improperly), and so in this article I set out very brief summaries of a selection of retrenchment-related decisions by the Industrial Court in the past year.
A group of Malaysian lawyers drafted a Remote Hearing Protocolsetting out a proposed protocol to conduct remote hearings during the movement restrictions in Malaysia. The paper hopes that it can be used as a road map for conducting hearings and trials remotely, and to be used as a guide for the Judiciary and the Bar in the future.
I touch on three points in the Remote Hearing Protocol. I highly recommend reading the protocol in full. You can download the Remote Hearing Protocol over here.