On 17 November 2021, the Court made an ex parte Order to appoint an interim judicial manager, Datuk Adam Primus Varghese Abdullah of Messrs ADAMPRIMUS, over KSFI. The interim judicial management of KSFI in turn resulted in Khee San Bhd triggering Practice Note 17 (PN17). PN17 is essentially the financial distress criteria set by Bursa Malaysia Securities. KSFI’s assets account for over half of the total assets of Khee San on a consolidated basis.
I believe this is the first time a financial institution creditor has applied to place the debtor company under judicial management. I set out some of the guiding legal principles and the facts of this case.
The High Court in Re Federal Power Sdn Bhd(grounds of judgment dated 11 October 2021) granted a judicial management order over a high voltage cable manufacturing company. The Court dealt with the issue of whether the proposed judicial manager candidate must affirm an affidavit in support of the application or not.
The High Court in Coca Cola Refreshments Malaysia Sdn Bhd v Leejin Capital Sdn Bhd MLJU 1700 (grounds of judgment date 6 August 2021) invalidated the appointment of the liquidator in a creditors’ voluntary winding up. The Court ordered that instead, another liquidator candidate be appointed, where that candidate was nominated by a creditor holding a majority in value of the debt of the company.
This decision may cause uncertainty for future creditors’ voluntary winding up as well as other forms of winding up.
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.
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 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:
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad (Award No. 94 of 2021).
Charles Selvam Andrew Francis v. Kebabangan Petroleum Operating Company Sdn Bhd (Award No. 256 of 2021).
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.