Relationships are never about power

screenshot

A mother was speaking to her little son, listening intently to him telling her a story. She knew the story much better than him, yet she listened intently as if this is the very first time she came across what her son shared with her.

When I was in office speaking to an elderly cleaning lady, I listened intently to her telling me stories that I have known better, yet I listened intently as if this is the very first time I had come across. Why? The answer is not that I have to do it, but because I chose to do it.

Parents would be able to relate to this. As a parent, you don’t play a game with a child to show your superiority. Rather, you chose to limit yourselves so as to facilitate and honor that relationship. You will even lose a competition to accomplish love. It is not about winning and losing, but about love and respect.

Both the mother and me chose to limit ourselves out of respect for the child and the elderly. We certainly are not bringing to mind our knowledge of what the child and the elderly said, though they are already within our knowledge.

As the mother and me are listening to the child and the elderly respectively, it is as if this is the first time we have known about them and we take great delight to seeing them through the eyes of the child and the elderly. If there is one thing I always keep in mind, it is that relationships are never about power.
#RelationshipsAreNeverAboutPower

Specific performance for breach of employment contracts -vs- reinstatement: An analysis

Employment

Supposedly a singer contracts to sing on a particular night, but he somehow refused to sing on that particular night as contracted, proceedings to compel him to perform his part of obligation is perhaps possible.

Now supposedly he sang on that particular night but his voice was either too loud, too soft, too quiet, too quick, too slow or too sharp, could an employer get his contract of service specifically enforced against the singer? In other words, could an employer get an order of specific performance of a contract for personal service?

General principles of specific performance and its non-applicability to employment contracts

Specific performance is an order of court governed under the Specific Relief Act 1950 compelling one party to perform his contractual obligation. While the Act does not expressly prohibit the relief of specific performance to contracts for personal service, illustration (a) to Section 20(1)(b) refers to contracts for personal service. Therefrom, our courts have been treating it as a general principle and applying them in toto.

Rationale for non-application in employment contracts

Rationale for such non-application of the relief in employment contracts are observed in the English case of Johnson v Shrewsbury and Birmingham Rly Co[1]. Firstly, providing service is closely connected to the personal qualification of an employee, making it very subjective and therefore requiring constant supervision of the courts. Secondly, because parties should not be compelled to be in a relationship that they have opted out from.

In the illustration above where a singer was contracted to sing as the facts in GH Giles & Co Ltd v Morris[2] Meggary J in refusing specific performance had correctly observed that “for who could say whether the imperfection of performance were natural or self-induced”?

In Malaysia, the Federal Court decision of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol Negeri Sembilan[3] is the authority for non-application of specific performance to contracts for personal service. It was held:

“[a] that the court will not order specific performance of a contract of service between master and servant, except [1] where a claimant before an Industrial Court claiming reinstatement on ground of dismissal without just cause or excuse under Section 20 of the Industrial Relations Act 1967; and [2] where a holder of any public office as set out in Article 132 of the Federal Constitution.”

The eloquence of this passage distils a direction on the lower courts to similarly apply the general rule against specific performance to contracts for personal service without looking into the requirements under Specific Relief Act[4] of whether the contracts are in minute details or dependent on personal qualification, as can be seen from the High Court decision of Mohd Sobri Che Hassan v Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor[5]. The Applicant’s application to quash the decision to dismiss him was dismissed following the general rule against specific performance as enunciated in Mohd Ahmad (supra). However, his appeal to the Court of Appeal against the dismissal was allowed[6], albeit on different grounds and Mohd Ahmad (supra) was distinguished because the Applicant was not praying for specific performance, but a review. Let’s see whether it goes to further appeal.

The rationale – an analysis

Screenshot_20180322-140059_mh1521698659196

While the relief of specific performance is not applicable to employment contracts, reinstatement which has the same effect as specific performance in reinforcing a contract between an employer and an employee is on the other hand recognized as a remedy under section 20 of the Industrial Relation Act 1967. In fact, reinstatement was considered by Abdoolcader J as “a serious inroad into the general rule” in his decision of Sivaperuman v Heah Seok Yeong Realty Sdn Bhd[7]. Having the same effect, why the different treatment? A chasm between these two reliefs would require a conciliation.

The rationale given in Johnson’s case (supra) to justify refusal of the remedy of specific performance in contracts for personal service where neither an employer nor an employee should be compelled to be in a relationship which they have opted out of, seems to be out of place by today’s working standards. Where an order for reinstatement in favor of a dismissed employee being made, isn’t the employer being similarly compelled to in be in a relationship which they have opted out from? Given, an employer is always at liberty to file for a review to challenge such decision, but until it being quashed, that is the effect.

While our courts have religiously followed the general rule against specific performance in employment contracts, we see radical developments overseas challenging the general rule. In Siphokazi Somi v Old Mutual Africa Holdings (Pty) Ltd[8], an employee sought to declare her dismissal to be unlawful for breach of contract instead of unfair dismissal as she wished to enforce the provisions of the contract. In allowing the relief of specific performance to the dismissed employee, the Court observed:

“It is well-established that the remedy of specific performance in the case of an alleged contractual breach of the employment contract is a separate remedy from the unfair dismissal remedy provided for in the LRA. The right not to be unlawfully dismissed in the terms of the common law remained even after the introduction of the unfair dismissal concept by the Labour Relations Act….It is well-established in law that an employee whose contract of employment has been unlawfully terminated by the employer has an election to either accept the breach of contract and sue for damages or enforce the contract. The remedy in the case where the employee enforces the contract in the face of a breach would generally be specific performance.”[9]

Conclusion

The purpose of this analysis is not to suggest that a dismissed employee should go to civil courts for specific performance instead of filing a representation for reinstatement at an Industrial Court, bearing in mind specific performance requires a much higher threshold. An applicant has to establish breach of contract, show balance of convenience in his favor plus establishing the fact that the contracts are not dependent on personal qualification. However, should an applicant choose to go that path, I see no reason why he should be denied from exercising his right to either accept the breach and sue for damages, or to enforce the terms of contract by way of specific performance when a breach of employment contract occurs.

In addition, the breach of employment contracts is not limited to termination of contract. A breach may occur to any of the terms therein including conditions, duties, rights and benefits that should be allowed to be specifically enforced, subject of course to observance under Specific Relief Act 1950[10], otherwise what is the point of having conditions, duties, rights and benefits in an employment contract if they cannot be specifically enforced.

[1] (1853) De GM & G 914, 43 ER 358

[2] [1972] 1 ALL ER 960

[3] [1997] 3 CLJ 135

[4] Section 20(1)(b)

[5] [2016] 2 ILR 1, HC

[6] [2018] 2 CLJ 715, CoA

[7] [1979] 1 MLJ 150, FC

[8] Case No. 12828/14, July 3, 2015

[9] Paragraph [22] to [24] to Somi’s decision

[10] Section 20(1)(b)

Professionalism -vs- Idealism

20170415 Photo 1

One day, Zilu, Zheng Dian, Ran You and Gongxi Chi, all disciples of Confucius sat down in attendance with Confucius. Confucius asked them: I heard you all often say “Nobody understands my ambition. Now, suppose, there was someone who understood you and planned to employ you, what would you do?

Zilu hastily said: “Give me a middle sized kingdom with 1,000 war chariots between 2 large kingdoms threatening with invasion and food shortage. If I am allowed to manage it, in 3 years time, I would cause the country to become brave and to be able to find a direction to itself.

Grandmaster gave a faint smile and asked Ran Qiu to which he replied, “If I am allowed to reign a country of about 50 to 60 square feet, within 3 years, I would give the people enough food to eat and clothes to wear. But to make the country prosper through rites and music, that will have to wait for a sage or junzi.”

Next was Gongxi Chi’s turn who said: “I am willing to learn. I would like to dress in my robes of office to be a minor official”. He did not mention of ruling a nation or governing its people.

You’ll note that each answer was more modest than the last. Then came Dian’s turn.

“Dian, how about you?” Confucius asked. “My ambition is, at the end of spring, in the third month of the lunar calendar (April or May in western calendar) to put on newly made spring clothes, and in the season when all the world is in bloom and all of nature has come back to life, to go with a few adult friends, and a group of children, to bathe together in the waters of the River Yi, now free from the winter’s ice.

Once we are perfectly clean, we will bask in the spring breeze on the Rain Altar by the side of the River Yi, letting it blow into us and become one with us, to welcome the season of life and vitality along with the heavens and the earth, enjoying a rite of the spirit. When this rite is complete, everybody will happily return home, singing songs. This is all I want.”

When Confucius heard this, he heaved a long sigh and said: “I am with Dian!”

Perfection of character was a fundamental point. My ambition, like Dian, is to see all of nature in its proper place, including myself. This is idealism. This means Dian’s professional achievements would also be at a higher level than the other three whose ambitions are purely professional, nothing more.

It resonates with my belief that any advancement in whatever our undertaking in life starts with perfection of our own character. It has to start within our inner heart. So when I heard of Dian’s ambition, let me be the second person to say “I am with Dian!”

#perfectionofcharacter

Removal of Sarahah apps from the Play Store: A Larger Perspective

Sarahah

The recent news of removal of Sarahah apps, the controversial mobile application that allows bullies to send hurtful messages is a victory to concerned mothers who presented the petition to Sarahah for removal of the application from the Apple and Google Play Store. To me, it tells of an underlying message for young people and teenagers.

Petitions have once again proved to be a powerful tool of request for a change. What begins as a tool of request to the government officials in the ancient times has metamorphosed into a powerful tool of request used by individuals today towards a cause. Putting down our signature on a petition is akin to hearing out our voice.

As a mobile application, Sarahah does not need much introduction. It was developed with the original intention of letting users express honest comments to their recipients. However instead of encouraging constructive comments, Sarahah became a conducive space for cyberbullies to send hateful messages to their targets while hiding behind the wall of anonymity. Teenagers and young people on the receiving end, seem to be perturbed by the messages. Underlying this phenomenon is the fragility of our young people.

Perhaps due to their age and having overprotective parents, teenagers and young people have high level of sensitivity and self-consciousness to negative comments from their peers. The more they are upset or reacted negatively to the hateful messages, the more motivated are the cyberbullies. The situation is the same in schools, the more the bullies see the victim being victimized, the more they become aggressive.

Removing a mobile application is only a short-term victory. It does not stop another similar application from coming up to the Play Store. A teenager growing up may still face real world bully at workplace or in a relationship. This is a question of reality. Dealing with bullies requires action from within us. Learn the psychology of a bully. Once this is understood, it becomes easier for a teenager to deal with a cyberbully. The best thing that a teenager or young people can do when receiving hateful messages, is to ignore them. Our self-worth comes from ourselves, not from these bullies.

At the same time, internet users need to be reminded of their responsibilities to other users. The Internet is a world wide web but the web is not theirs alone. They are sharing space with other users. Knowing that their every action and words may make or break other users, courtesy is the best policy when using the internet. Those cyberbullies sending hateful messages behind the wall of anonymity are no heroes. If they really have the guts, come out to meet the targets, say it out loud to them and give their line of reasoning.

The victory is way to go for mothers and young people, but the worst is still far from over. Sarahah is only a tool to bully. Cyberbullies still exist and there are real world bullies as well. How to deal with them requires a continuous effort from the authorities, parents, society and of course, teenagers and young people themselves. http://en.brinkwire.com/183006/google-and-apple-ditch-bullying-app-sarahah/

Stay and Injunction: By Contradistinction

Injunctoin

A lawyer was admitted as advocate and solicitor in High Court of Sabah and practiced in Sabah using work permit. He wanted to belong to Sabah, so he applied for an obtained an entry pass, valid for 2 years. If he fulfils the requirement to reside in Sabah for 2 years, he will fulfil the requirement to belong to Sabah. Just few weeks before expiry of the pass, his pass was revoked and he was issued a special pass instead, valid for 7 days only, after which he has to leave Sabah. He applied for stay of the effect of the decision by authority to revoke his entry pass.

A licensee was granted a temporary occupation license (TOL) to operate and mine ‘rare earth oxides and carbonates’ in the Gebeng Industrial area. The applicants sought to quash the TOL and to stay and injunct the issuance of TOL and the exercise of rights under TOL.

An applicant sought for an order of certiorari to quash the decision of the relevant authority to construct an alignment to a road which is said to be near to the properties of the applicants, and an order to stay the construction of the alignment pending disposal of the review application.

Three scenarios, one thing in common – the applicants in these scenarios applied for an order of stay but with different outcomes.

In the first scenario, the applicant survived the axe of deportation from Sabah at the Court of Appeal who reversed the decision of the High Court refusing an order of stay but only to find it reversed again at the Federal Court. The second and third scenarios were not so promising though, where courts formed the opinion that stay in the case amounts to an injunction against the Government under Section 29(2) of the Government Proceedings Act 1956.

Stay and injunction are two different reliefs, though line differentiating the two has been demonstrably difficult to discern. If even judges got them mixed up, what more parties and their lawyers.

General principles of stay in judicial review proceedings

Judicial review

A decision made by an officer or minister as well as other decision-making bodies can in principle be stayed by an order of court pending conclusion of a challenge to the decision-making power by way of judicial review. This is illustrated in R v Secretary of State for Education and Science, ex parte Avon Country Council[1] and the local decision of YAM Tunku Dato’ Sri Nadzruddin ibni Tuanku Ja’afar v Datuk Bandar Kuala Lumpur & Anor[2].

The power of a High Court to grant an order of stay is provided for in Order 53 Rule 3(5) of the Rules of Court 2012 which reads, albeit not expressly stipulated:

“The grant of leave under this rule shall not, unless the Judge so direct, operate as a stay of the proceedings in question”.

When applying for an order of stay under rule 3(5) above, the stay would have the effect of temporarily suspending the effect of the public law decision pending the outcome of the certiorari or prohibition challenging the public law decision. It therefore preserves the status quo by suspending the proceedings under challenge and preventing implementation of the impugned decision.[3]

A better attempt to define an order of stay is as stated in the following passage in the decision of SC Aggrawa J in Shree Chamundi Mopeds Ltd v Church of South Indian Trust Association, Madras:[4]

“While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order.

Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed.

The stay of operation however does not lead to the same result. It only means the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence.”

Principles applicable for a grant of stay in judicial review proceedings are similar to the granting of an application for interlocutory injunction as illustrated in the decision of Godfrey Philips (Malaysia) Sdn Bhd v Timbalan Ketua Pengarah Kesihatan (Kesihatan Awam) Kementerian Kesihatan, Malaysia.[5]

Therefore, for a court to grant a stay, the onus is on an applicant to establish the following: [a] that he/she is likely to suffer irreparable harm in the absence of a stay order; [b] that balance of equity (or known as balance of convenience) tips on his/her favour; [c] that a stay order is in public interest.

This is the difference in public law cases where a broader consideration of the ‘public interest’ which the public body exists to protect will be required rather than merely the narrow interests of the parties.

General principles of an injunction in judicial review proceedings

What by birth is a private law remedy, the injunction has now evolved its application on the public law domain as well. The principles applicable in considering an application for an injunction under public law are similar with those in private law. Nevertheless, courts have been very reluctant in granting injunction against public authority which is said to have the effect of granting injunction against Government, prohibited by the Government Proceedings Act 1956[6] and the Specific Relief Act 1950.[7]

In the second and third scenarios above, once again it was decided that granting of an order for stay would amount to an injunction. Section 29(2) of the Government Proceedings Act 1956 which have been oft-quoted to shield public authorities is reproduced as follows:

“The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give a relief against the Government which could not have been obtained in proceedings against the Government.”

Notwithstanding the ratio in the Supreme Court of Lim Kit Siang v United Engineers (M) Bhd[8] regarding injunction against government, the word “civil proceedings” in Section 29(2) is defined in the same Act[9]which refers to any proceedings of a civil nature before a court but does not include proceedings under Chapter VIII of the Specific Relief Act 1950 or such proceedings as would in England be brought on the Crown side of the Queen’s Bench Division. Proceedings that can be brought on the Crown side of the Queen’s Bench Division include prerogative relief such as certiorari and prohibition. Therefore, such proceedings should not be considered as civil proceedings for purposes of Government Proceedings Act.

Balance of convenience

In considering whether there are serious issues to be tried, focus is on an applicant to demonstrate serious and irreparable harm if stay is not granted. This serious and irreparable harm must outweigh the harm to the respondent if stay is to be granted. In essence, the balance of convenience must tip in favor of the applicant. As to adequacy of damages, unless the public authority is able to show the damages it has to bear if stay is granted, adequacy of damages is less likely to be issue in public law cases as breach of public law cases does not necessarily give rise to a claim in damages.

In the third scenario above involving the construction of an alignment of a road by public authority, the applicants fail to tip the balance in their favor. The company that was appointed to construct the alignment road demonstrated that they would suffer irreparable harm to its reputation and finance if there is a delay to the project as it is subject to payment of LAD interest on daily basis and that there are other parties working on the area. An order of stay would affect these third parties’ work as well as create more disruption to road users or possible flooding. In contrast, the applicants have not demonstrated how irreparable are the damage to their properties due to the construction. Even if the applicants manage to show damage to their properties, that only reflects the private interest. Where public interest is involved, the balance of convenience must be tilted in favor of the public in general as against the private interest of the applicants.

Similar in the decision of Godfrey, the balance of convenience too tips heavily against granting of interim injunction. Where the need to protect public health in smoking outweighs the severe losses and damage likely to be suffered by the applicant as well as loss of reputation. Mohd Zawawi Salleh J made an interesting remark at paragraph [30] of the Godfrey’s decision:

“The likelihood of harm to the public’s health stemming from smoking is not disputed by the applicant. The harm to the public’s health is irreparable. The harm, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, ie irreparable. If such harm is sufficiently likely, therefore, the balance of harm will usually favor the refusal of stay and/or prohibition order to protect the public”.

Conclusion

Notwithstanding the similarity of principles in applying for stay and injunction, the effect between the two are not similar. In fact, Justice Gopal Sri Ram has made a good attempt to draw a line when he said:[10]

“By contradistinction, an injunction is directed at a party to a proceeding restraining him from doing or requiring him to perform a particular act. Put in another way, an injunction acts in personam, a stay does not.”

In learning the difference, drafting of the prayer therefore becomes crucial. An applicant should be careful to craft his prayer in such a way as to stay the effect of decision to be impugned rather than to stop or prevent public bodies from the performing an act. It is not a play on semantics. One acts in personam, the other does not.

References:

[1] [1991] 1 ALL ER 289

[2] [2003] 1 CLJ 210

[3] R(H) v Ashworth Hospital Authority [2003] 1 WLR 127

[4] AIR [1992] SC 1439, 1444

[5] [2011] 9 CLJ 670

[6] Section 29(2)

[7] Section 55

[8] [1987] CLJ (Rep) 170

[9] Section 2, Government Proceedings Act 1956

[10] Sugumar Balaskrishnan v Pengarah Immigresen Negeri Sabah & Anor & Anor Appeal [1998] 3 CLJ 85

Updates of Rules of Court 2012 w.e.f March 1, 2018

As civil litigation practitioners going to court day in day out, Rules of Court 2012 is like a bible for us. Amendments are coming soon, so let’s get familiar with the updates so that we advice clients accordingly. The 4 new provisions under the Rules are as follows:

  1. Proceeding as a pauper

Pauper

Pauper is a poor person. To sue, defend and continue a proceeding in court as a pauper, he must apply to court for an order to proceed as a pauper and he must affirm that he has property less than RM1000 in value.

No court fees will be charged to a pauper, even any solicitor acting for the pauper cannot take fees, though Court may order payment to the solicitors out of the monies received by pauper if he wins the case. Pauper cannot discharge his solicitor without leave of court and neither can his solicitor discontinue their service without providing reasonable grounds to Court.

2.  E-lelong system

Auction

E-lelong, an online property auction conducted by courts for sale of foreclosed properties, is now regulated under Order 13A of the ROC. With e-lelong, bidders can bid online instead of showing up in court to bid. User however needs to be registered to use this system.

Court may order that the foreclosed property be sold by way of e-lelong system and give directions to effect sale including uploading of notice of auction in e-lelong website. Under e-lelong system, a 3% of reserve price will be charged as execution fee.

3.  Set aside, stay and enforce an adjudication decision (Order 69A)

CIPAA

Sections 15, 16 and 28 of the CIPAA do not state the mode and manner of making an application to the High Court, hence the new Order 69A of ROC to provide for the mode and manner of application.

Setting aside is by way of an originating summons while stay is by way of a notice of application after filing of application to set aside. One may seek to enforce the adjudication decision as a judgement or order with permission of Court by way of an originating summons. Read further details in O69A for what is needed for affidavit in support when making such application.

4.  List of exempted laws (Appendix C)

Exemption

Where legislation provide for specific mode and manner to make an application to court, the general rules contained in the Rules of Court do not apply.

Under the amended rules, there are 15 types of proceedings governed under specific written law, for example, matrimonial proceedings are governed under Law Reform (Marriage & Divorce) Act 1976. Mode and manner of proceedings are contained the Act and its Rules.

#RulesofCourt2012  #RuleUpdates

 

Fair and affordable housing should be basic right of all Malaysians

​PR1MA housing scheme has received praises and is considered a noble move to provide affordable housing for the people…until the recent announcement of reduction of moratorium from 10 to 5 years, the effect of which will increase speculation of housing prices. Those who can sell off the units at a higher price can definitely afford another home.

How this will align with the objective of providing affordable housing for its people? Will this result in more homeless people? A single occurrence can have chain effect.

And this housing scheme is considered a caring move for the people….until you see how the end-financing works and how withdrawing from EPF for payment of monthly instalments works.

While this PR1MA scheme is only for people with income, many other housing issues that the government still needs to work out, such as, to provide affordable homes for people without income and yet needs shelters.

After all, fair and affordable housing should be a basic right for all Malaysians.

#AffordableHouses

Changing mindset of taxi operators

While I agree that action should be taken for overcharging by taxi operators, the grounds relied by SPAD under Section 22 of the Act to revoke the taxi operator’s permit does not state clearly requirement on charges and rates.

The existence of overcharging, together with a host of other related issus with conventional taxi service, has brought about the increase of mobile apps based ride-hailing services offering good alternative to meet the needs of commuters for cheaper and reliable transport service.

Never mind that they are illegal, in fact it is because their illegal status that they are able to provide cheaper and reliable service.

Revoking the permit of these taxi operators will only contribute to the increase of these alternative ride-hailing services. It does not contribute to the improvement of the taxi industry.

Rather than complaining and boycotting, what the conventional taxi industry needs is a transformation.

Regulation of both conventional and mobile-apps based ride hailing service are still possible to cater to different categories of passengers but allow more room for introducing suitable business models. For example, coming up with packages for different categories of commuters such as business packages, family packages, professional packages, student packages, golden citizen packages or point system.

The mechanics of the vehicle can be programmed to meter is used, for example, where meters will be switched on automatically once passenger enters into taxi.

But most of all, the mind set has to be changed. You cannot gain riches and yet maintain a poverty mind set.

#SPADrevoketaxipermit