Legal cauldron 1 of 2013

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JHJ's bi-annual newsletter. Issue 1 of 2013 features common legal concerns such as Tenancy, Sexual Harrassment at Workplace and Insurance Claims.

JHJ's bi-annual newsletter. Issue 1 of 2013 features common legal concerns such as Tenancy, Sexual Harrassment at Workplace and Insurance Claims.

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  • 1. No KDN: PP 15706/02/2013 (032198) LEGAL CAULDRON Jayadeep Hari & Jamil Advocates and Solicitors In this issue: Landlord vs. Tenant - A Guide To Tenancy Manage- ment Sexual Harassment - How Safe Are You At Work? Seeing Double - Insurance Claim or Full Sum Damages, or Both? JHJ New Strategic Alliance In Singapore - Voskamp Lawyers JHJ Office Trip - Tioman Is- land Vacation Season’s Greetings - JHJ Christmas Kringle EDITOR: Issue no. 1 Adeline ChinLEGAL CAULDRON Issue No 1 of 2013 DESIGN & LAYOUT: Andrew Chee of 2013 CONTRIBUTORS: Manisah Saharin Siti Khadijah Md Yunus Shobana Padmanathan Our offices: PETALING JAYA KOTA BHARU 1 KOTA BHARU 2 MELAKA KUALA LUMPUR Unit 612, 6th Floor, 2713, 1st Floor, Section 22, Tingkat 2, Lot 11, No.54-1, Jalan TU 2, Suite 2.03 (2nd Floor) Menara Mutiara Majestic, Batu 2, Jalan Kuala Krai, Bangunan Tabung Haji, Taman Tasik Utama, Block A, No 45, Medan Setia Satu, No. 15, Jalan Othman, 15050 Kota Bharu, Kompleks Niaga, Jalan Dato Pati, 75450 Ayer Keroh, Plaza Damansara, Bukit Damansara, 46000 PJ, Selangor. Kelantan. 15000 Kota Bharu, Kelantan. Melaka. 50490 Kuala Lumpur. T: 03-7784 7255 T: 09-741 2050 T: 09-747 7782 T: 06-234 7330 T: 03-2096 1478 | F: 03-2096 1480 F: 03-7781 7255 F: 09-741 2051 F: 09-747 4733 F: 06-234 4800 www.jhj.com.my
  • 2. Editor’s Note: “If you change the way you ing in! Our team would be delighted to hear from look at things, the things you you. look at change.” Change is the only constant, and if not for On a lighter note, this issue of the Legal Cauldron change, we would have none also shares insights on our annual office trip to the to learn nor to improve upon. beautiful Tioman Island and tidbits on our Christ- This first issue of the 2013 mas Kringle alongside other events. We have even Legal Cauldron would be our decided to spice things up by sharing our storiesway of embracing, sharing and creating with you, via QR codes! So just whip out your mobileChange. phones and scan away to view the full write-up or simply log on to our website at2012 had come and gone so swiftly. While we re- www.jhj.com.my for more information.joice having made it through the year alongsidethe highly publicised eschatological belief of an My hope as new editor of the Legal Cauldron is toapocalypse, 2012 had also seen many earnest continue sharing and bringing forth to you thesechanges in JHJ. Amongst which were the addition changes, regardless it being a casual JHJ event orof new members to our team and the celebration simply good-to-know legal information. We hopeof several nuptials during the second half of the you would enjoy this issue of the Legal Cauldronyear. Besides expanding our practice areas to in- as much as we enjoyed sharing it.clude the provision of advisory services for themining and quarrying industry, we are also proud Happy reading and have a blessed 2013 from all ofto announce a new strategic alliance with Vos- us here at JHJ!kamp Lawyers of Singapore.Voskamp Lawyers is the largest Dutch legal firm EDITORin South East Asia to date, with offices in Singa-pore, Amsterdam and Malaysia. The increasingly Adeline Chinglobalised nature of today’s business and commu- Knowledge Departmentnication structure had made it important for us to adeline@jhj.com.myprovide you the ease and comfort of having quali-ty cross-border legal services without the hassleand risk of venturing into overseas transactionsbased on unsafe sources. We hope that with thisnew strategic alliance, JHJ will be able to continueproviding you a peace of mind as you advance tobroaden your scope of business ventures, be itgeographically or professionally.As JHJ had always been a staunch believer of con-tinuous learning, we expand our knowledge spec-trum by learning about your needs and catering tothem. Hence please do keep those inquiries com- Legal Cauldron 1 of 2012 | 2
  • 3. LANDLORD VS TENANT A Guide To Tenancy Management By Manisah SaharinRecently, more and more issues regarding tenancy 1965 (“the Act”). Legally, whilst a landlord to ahave arisen due to the rapid development in the registered lease under the Act is afforded statuto-property sector. And for this reason, I am called ry protection, a landlord of an unregistered leaseto discuss on the conflicts between the landlord may not be, and therefore, would be well advisedand the tenant, along with suggestions to cater to to have his relationship with his tenant reducedsome of the issues that commonly arise. into a formal agreement or a Tenancy Agreement. “Standard Tenancy Agreement” “…being a landlord is not the easiest From the point of time when the Tenancy Agree- job in the world…” ment is signed by both parties, the landlord and the tenant are deemed to be bound by its terms and implications. The principle of freedom to con-I often suggest to my friends that if they have ex- tract strives to ensure a win-win situation for bothtra money, invest in property; to be landlords and parties, allowing there to be a consensus ad idemrent out their properties to cover the bank loan. (“meeting of minds”) before an agreement couldHowever, being a landlord is not the easiest job in be deemed valid. Hence, you should never believethe world, especially if you happen to have a ten- that there is only one standard tenancy agree-ant from “hell”. ment. Ideally, an astute person should ensure that the terms contained in the tenancy agreement areThe term “Landlord” indicates a person who is not lop sided.either a registered owner or one who has benefi-cial interest in a land or premise; be it a shop lot, It is pertinent for both parties to know their rightsdwelling house, factory or etc. A “Tenant” on the and obligations under the Agreement to ensure another hand is a person who is granted a tenancy effective tenancy management.either on a contractual or a monthly basis of thesaid land or premise. A tenant need not necessari-ly be an individual. A company can also be a ten- “…never believe that there is onlyant. one standard tenancy agreement.”A “Tenancy Agreement” is defined as a contractsigned by both the landlord and the tenant which In Malaysia, quite frequently rental practices dostates all the terms and conditions for the rental not involve any kind of written contract bindingof a property. Statutorily, a tenancy exceeding 3 the landlord and the tenant. This is sad but true.years will be considered a “lease of property” that Although a written contract of tenancy is highlywould be subject to registration against the title encouraged, any tenancy with no written agree-to the property under the National Land Code ment can still be valid and enforceable by law un- Legal Cauldron 1 of 2012 | 3
  • 4. der s213 (2) (a) of the Act. Where the existing been the result of several acts of default of thetenancy has expired or where there is no written Tenancy Agreement. We have seen several in-tenancy agreement but rental is still being paid, stances where tenants overstay or “disappear”, orthe tenancy would be deemed as a month to create a nuisance or damage the property or usemonth tenancy, that is to say, deemed renewed the property for wrong, illegal or immoral purpos-automatically every month upon the expiry of the es. Whatever the case may be, often, despite bestprevious month unless expressed otherwise by intentions, the landlord would incur costs, timenotice. and expense in seeking his remedies.It is submitted that this position rather favours In a fit of spite, the landlord might decide to takethe tenant. So long as a Tenancy Agreement is the law into his own hands and break into the“deemed” to subsist, the law affords protection to premise, cut off the power supply, prevent thethe tenant. An added burden is placed on the tenant from entering into the premise and the listlandlord to issue a termination notice allowing for goes on. STOP!a reasonable amount of time to elapse before ter-mination taking effect legally. The tenant, besides having a right to claim damag- es from the landlord, may also initiate an injunc- tion proceeding to claim his rights to rent or to “In a fit of spite, the landlord might stay in the premise, and to prohibit the landlord decide to take the law into his own from interrupting his stay on the premise. So in- hands… STOP!” stead of recovering vacant possession of the prop- erty or at least the rent or the said premise, the landlord may end up facing a civil claim by his / herTermination tenant.The Agreement usually indicates the manner ofwhich termination of a tenancy should take place. The landlord may be deemed a trespasser forPrior to such termination, a notice of termination denying the tenant access into the premise. Lock-or a notice to vacate is usually given to the tenant ing up the premise for non-payment of rent is nowithin the time stipulated in the Agreement. If justification in the eyes of the law.sufficient notice had been given; the landlord hasthe right to vacant possession of the premises The amended section 7(2) of the Special Relief Actwithout payment of any compensation. If the ten- 1950 relegates remedy for ‘self-help’ to making itant so wishes to continue the tenancy beyond its incumbent to the landlord to seek to enforce histerm, the terms of a new tenancy or a renewal right to recover his property by way of a Court(and a possible rent adjustment) of the previous action alone.must be mutually agreed upon, failing which theTenancy Agreement is considered expired and Landlord’s Remediesthe tenancy granted therein, terminated. The landlord may file a distress proceeding against the tenant if he wishes to collect his overdue rent-“Tenants from Hell” al from the tenant. He could also file an evictionDifficulties arise when in spite of termination, a summons in Court if he wishes to recover vacanttenant refusing to leave. Termination may have possession of his premises. Legal Cauldron 1 of 2012 | 4
  • 5. For that, an eviction notice must be served to the ing the disclosure of identity, interests, remediestenant, giving the tenant certain grace period to for breach of contract, etc. Protection is affordedhandover a vacant possession and pay all overdue to both parties statutorily and one cannot con-rental. After the expiry of such notice, the land- tract out of these statutory provisions. The UKlord must take out a court order for eviction. Tenancy Act spells out all the rights, duties, obliga-Only then can the landlord seal the premises with tions and remedies of the parties that can sum-the help of the court bailiff (to prevent access and marily be effected without involving distressful,entry to the delinquent tenant). In such instances, lengthy and convoluted court processes.the landlord may also claim double rental if thetenant remains in occupation of the premises In conclusion, until such time as there is afrom the time of the eviction notice until such “Tenancy Act” or the like in a Malaysian context,time as vacant possession is redelivered. as a landlord, you are well advised to be cautious and be prepared to be faced with difficulties even if you have a tenancy agreement that spells out all “…be cautious and be prepared to the rights and duties of you and your tenant. be faced with difficulties…” By Manisah SaharinA Call for a Tenancy Act manisah@jhj.com.myAt present, the law places the burden on land-lords to ensure that their tenancy agreement suffi-ciently provides for all eventualities and to takespecific steps before forcibly claiming possession NEWSFLASHof his property. JHJ is proud to announce another strategic allianceThere is no specific law governing the relationship between:between the landlord and the tenant in Malaysia.Tenancy agreements are covered under the Con-tracts Act 1950, whilst the eviction of a tenant iscovered under the Specific Relief Act 1950. Cer-tain provisions regarding leases and tenancies are andin turn contained in our National Land Code of1965. These provisions although existing, are nev-ertheless less than expedient in protecting therights of the landlord. Voskamp Lawyers is the largest Dutch legal firmHaving a specific Tenancy Act will no doubt help in the South East Asia region since August 2010,solve many problems arising from a tenant- specializing in integrated tax and legal advice onlandlord relationship. In the United Kingdom for cross border transactions. Together, we strive to provide you the assurance and assistance youexample, the Landlord and Tenant Act 1985 con- need in your overseas business ventures, givingsolidated certain provisions pertinent to both the you peace of mind because We Care.landlord and the tenant such as matters concern- Legal Cauldron 1 of 2012 | 5
  • 6. SEXUAL HARASSMENT How Safe Are You At Work? By Shobana PadmanathanHave you ever been a victim of offensive sexual and you are uncertain if it was indeed harassment,remarks or jokes at work? Or has a colleague at- the question to ask is whether the act offended,tempted to touch you in any way? Were you un- humiliated or intimidated you.happy about it? If your answer is yes, you are avictim of sexual harassment. A survey carried out The intention of the harasser is irrelevant so longin some industrialized countries which have laws as the victim can corroborate the allegation withspecifically governing sexual harassment showed documentary, oral, circumstantial, similar fact, ex-that 7 out of 10 female employees were sexually trinsic or physical evidence.harassed at their workplace. Sadly in Malaysiathere is no Act that specifically governs the law Another recognised means of sexual harassmenton sexual harassment. can come in the form of suggestive remarks. Comments that attack a person’s intelligence and “A survey…showed that 7 out of 10 capabilities based on his/her gender could amount female employees were sexually har- to sexual harassment. For instance, a comment assed at their workplace.” such as “women should be at home raising the children and not working” can constitute a form of sexual harassment.INTRODUCTIONThis article aims to outline the law on sexual har- THE LAW IN MALAYSIAassment at the workplace and the legal remedies Knowing that there is no Act which specificallyavailable to individuals of a workplace. governs such offences, how then can we seek re- dress if we have been sexually violated at theBefore we go any further, it is of utmost im- workplace? The victim or complainant may chooseportance to first clarify that sexual harassment to seek legal recourse under the employment lawnot only happens to women but also to men, and or alternatively, lodge a police report to pressnot only to employees but also to employers. criminal charges against the offender under theSexual harassment may happen regardless of it Penal Code.being a heterosexual or homosexual relationship,and hence such wide scope will be dissected for Employment Act 1955better understanding and clarity in the following Recent amendments to the Employment Act 1955paragraphs. which came into force on 1 April 2012 introduced the criminalization of sexual harassment in theWHAT IS SEXUAL HARASSMENT? workplace.Sexual harassment can be defined as any unwel-come sexual behaviour that is repeated and inter- The Act introduced Part XVA: Sexual Harassmentferes with your work. If the conduct was subtle alongside a definition of such “act” which coin- Legal Cauldron 1 of 2012 | 6
  • 7. cides with the intensified anti-harassment efforts complainant can refer the matter to the Director-and pursuits by non-governmental organizations in General who will then have the power to directMalaysia. Sexual harassment is now defined in the the employer to address the complaint immedi-Act as any “unwanted conduct of a sexual nature, ately. Should this fail to provide any remedy to thewhether verbal, non-verbal, visual, gestural or complainant, one may then file an appeal to thephysical, directed at a person; the act which is of- High Court to challenge the Director-General’sfensive or humiliating or is a threat to his well- decision. In addition to this, if the complaint isbeing, arising out of and in the course of his em- made against an employer who is a sole proprie-ployment.” tor, the Director-General must inquire into the matter himself.Section 81A of the amended Act recognised thata complaint of sexual harassment means a com-plaint by an employee against another employee / “Sexual harassment not only happensthe employer, or an employer against an employ- to women but also to men.”ee.One of the options made available to the com- The employer who is convinced of the occurrenceplainant is that he / she may terminate the con- of the offence (proven from inquiry conducted)tract of service WITHOUT NOTICE once the may take disciplinary action against the wrongdoeralleged sexual harassment can be proven before which includes dismissing the wrongdoer employ-the Director-General. The complainant will then ee without notice, downgrading the employee orbe entitled to wages, termination benefits and in- imposing any other punishment which the employ-demnity (if any) as if he / she have given notice of er deems fit. If the punishment imposed is suspen-termination. sion without wages, it must not exceed a period of two weeks.THE EMPLOYER’S DUTYThe Act has now made it compulsory for an em- The Act has also imposed a mandatory obligationployer to inquire, in the prescribed manner, into a on the employer’s part with regards to this. Ancomplaint made by a victim immediately upon re- employer who fails or refuse to inquire into aceiving it. However, the employer may refuse to complaint and to submit a report of inquiry to theinquire (with reasons) in writing within 30 days Director-General is deemed to have committedupon receipt of the complaint. The Act also spec- an offence and if convicted, will be liable to a fineified situations in which it is acceptable for the not exceeding RM10,000.00.employer to refuse to inquire, which are: - Intentional Tort1) The complaint has been previously inquired A victim may also bring an action against the into; wrongdoer under intentional torts. Under this2) There was no sexual harassment proven; common law doctrine, the victim must prove that3) The employer feels that the complaint is frivo- the wrongdoer had acted with the specific intent lous or not made in good faith. to perform the offence. The employer or the or-Fret not if a complaint has been refused to be in- ganization may also be vicariously liable for the actquired into. It is not the end of the road. The of the harasser. Legal Cauldron 1 of 2012 | 7
  • 8. Penal Code conferences or training sessions, during work-The four main sections that deal with the offence related travel, over the phone and through elec-are (i) Section 354 which provides for assault or tronic media.use of criminal force to a person with intent tooutrage modesty, (ii) Section 355 which provides This Code will serve as an effective guideline infor assault or criminal force with intent to dishon- organizations that do not have their own policy inour a person, otherwise than on grave provoca- place to challenge sexual harassment in the work-tion, (iii) Section 375 which provides for rape and place.(iv) Section 509 which provides for word or ges-ture intended to insult the modesty of a woman. RECOURSE FOR THE AGGRIEVED EM- PLOYEE (HARASSER)Code of Practice on the Prevention and The employee who feels that he / she had beenEradication of Sexual Harassment in the wrongly accused and punished (dismissed) by theWorkplace employer may under section 20 of the Industrial Act 1967, make representations to the Director-The Code of Practice on the “Prevention and General for reinstatement and this representationEradication of Sexual Harassment in the Work- must be filed within 60 days of the dismissal.place” came into force in August 1999 under thepurview of the Ministry of Human Resources Ma- CONCLUSIONlaysia. The Code encourages employers of both The requirement of adopting the policy statementpublic and private sector to implement in-house prohibiting sexual harassment in the workplace ismechanisms to prevent, handle and eradicate sex- not mandatory under the Employment Act 1955.ual harassment in the workplace. The in-housemechanism provided by the Code included a poli- It is the author’s opinion that employers shouldcy statement prohibiting sexual harassment in the adopt the in-house mechanism provided by theorganisation, a clear definition of sexual harass- Code, albeit it being a mere guideline, to ensure ament, a complaint/ grievance procedure, discipli- safe and conducive working environment for itsnary rules and procedure against the harasser and employees. Any unwelcome behaviour that threat-those who make false accusations, protective and ens the safety or well-being of an individual at theremedial measures for the victims and promotion- workplace would not only affect one’s occupation-al and educational programmes to educate the al health, productivity and morale but also leaves acompany’s employees. long-term effect on the emotional health of the victim. It is the legal and moral obligation of theThe Code ingeniously stipulated the meaning and employer to safeguard and protect its employeesspheres that encompasses the word “workplace” from avoidable occupational hazards such as this.in the context of sexual harassment, somethingwhich the amended Employment Act 1955 failedto consider. Situations under which such employ- By Shobana Padmanathanment-related sexual harassment may take place shobana@jhj.com.myinclude, but is not limited to are: at work-relatedsocial functions, in the course of work assign-ments outside the workplace, at work-related Legal Cauldron 1 of 2012 | 8
  • 9. JHJ Office Trip Season’s Greetings Tioman Island Vacation JHJ Christmas Kringle 2012Scan QR Code for full story Scan QR Code for full story Legal Cauldron 1 of 2012 | 9
  • 10. SEEING DOUBLES Insurance Claim or Full Sum Damages, or Both? By Siti Khadijah Md YunusIf you have met with an accident and are suing your insurer, the answer would appear to be afor damages with regards to personal injury resounding “yes”.from the wrongdoer, you would want the fullsum of damages according to what you have But in my opinion, it is not so simple. I wouldsuffered or incurred. argue that S28A applies when a Plaintiff has tak- en out a Personal Accident policy or a similarBut can you still get the full sum of damages policy and has received payment from his/herfrom the wrongdoer (through his insurer) if insurance company. Then I would argue S28Ayou are already covered by your own insur- applies and the sum received by the Plaintiffance and your insurer had already paid for the cannot be taken into account when determiningmedical expenses or have paid you for the quantum if he met with an accident.same? Can you have both, damages claim fromthe wrongdoer, and monies from your own in- However if the Plaintiff had taken out a Hospi-surer? talisation policy, then I would argue that S28A would not apply. And if his insurers have paid ‘…the answer would appear to be a under the Hospitalisation policy, then the Plain- resounding “yes”. But…it is not so tiff would not be entitled to claim for the same simple.’ medical expenses from the wrongdoer. The case of Ward v Malaysian Airlines Sys-The relevant law in this regard is section 28A tem Bhd [1991] 3 MLJ 317, seem to adopt(1) (a) of Civil Law Act 1956 (“the Act”) this position. In this case, the court held thatwhich provides that in assessing damages re- considering the nature of an insurance policycoverable for non-fatal personal injury, no de- scheme, the insurance benefits were not de-duction should be made to any sum paid or ductible under section 28A (1) (a) of the Act.payable in respect of such personal injury un- The words used in that section should be inter-der any contract of assurance or insurance, re- preted in its plain and ordinary meaning. Bygardless whether it was made before or after adopting a strict rule of interpretation, our Par-the coming into force of this Act. liament in its wisdom had made it crystal clear that any sum paid or is payable in respect of aThis simply means that the court, in calculating non-fatal personal injury under any contract ofdamages to be awarded to you by the wrong- assurance or insurance shall not be taken intodoer, must not deduct any sum paid that is account in assessing damages.payable by your insurer. Thus in answering theabove question of whether you are entitled to The case of Sin Hock Soon Transport Sdnget both, damages from the wrongdoer and, Bhd & Anor v Low King Ban [2006] 3 MLJ Legal Cauldron 1 of 2012 | 10
  • 11. 174 echoed Ward’s case and held that where 28A (1) (a) applies; whilst in the present case,the employer was the party who paid for the the Plaintiff was seeking special damages whichpremium under the contract of employment, should be the amount spent by the Plaintiffdamages awarded and received by the Plaintiff himself and hence the section does not apply.should not be deducted. However in the in- Furthermore, if the claim was allowed, it wouldstant appeal, the respondent himself purchased enrich the Plaintiff out of his misfortune, andthe policy and paid for the premiums. By apply- this would be contrary to the universal ruleing the principles as enunciated in Wards case, that one is not allowed to recover somethingthe respondent was clearly entitled to the in- which he has not lost. Therefore the medicalsurance monies paid under his own insurance bill paid by the Plaintiff’s insurer in this casecoverage and also the special damages awarded was deducted from the damages awarded.by way of his claims against the appellants. “…if the claim was allowed, it wouldHowever prior to Sin Hock’s case [supra], the enrich the Plaintiff out of his misfor-courts held in the case of Khairul Sham bin tune…”Ahmad & Anor v Yesudass a/l Michaelsamy[2005] 2 MLJ 679 that the Plaintiff cannotclaim for medical expenses paid by the insur- Even though section 28A (1) (a) does not stateance company as the rights to recover the whether the word “damages” is one under themedical expenses lies in the hands of his insur- head of general or special damages, this caseer. The medical expenses of RM30,000 award- made it clear that medical expenses or anyed by the learned Sessions Court judge had expenses that have been paid by thesimply enriched the Plaintiff. This enrichment Plaintiff’s own insurance are deductible inviolated the philosophy behind the principle of calculating the damages.compensatory damages upheld in this country.Therefore such an award should not be al- Hence you are unlikely to be able to claim orlowed. the expenses that have been paid or are paya- ble by your insurance.Until recently, the question as to whether onewould be entitled to claim for damages from As for general damages or damages for painthe wrongdoer in addition to receiving insur- and suffering, Ward’s case stands. You may getance monies from his own insurer pursuant to a full sum of damages even if your own insurera hospitalisation policy still remained unclear has paid you.until the recent Court of Appeal decision inthe case below was made. By Siti Khadijah Md YunusThe judge in Sathisvaran a/l Chandrasegaran sitikhadijah@jhj.com.myv Agilan a/l Vanmugelan & Anor [2012] 4MLJ 548 differentiated general damages andspecial damages, contending that in Ward’s casethe Plaintiff was seeking an award of generaldamages for pain and suffering and thus section Legal Cauldron 1 of 2012 | 11
  • 12. Kuala Lumpur . Petaling Jaya . Kota Bharu . MelakaThis is a publication produced by the JHJ Knowledge Department. For any inquiries, please do not hesitate to contactus: T: 03-2096 1478 | F: 03-2096 1480 | E: kd@jhj.com.my | W: www.jhj.com.myPublisher: Messrs Jayadeep Hari & Jamil, Suite 2.03 (2nd Floor), Block A, Plaza Damansara, Bukit Damansara, 50490 KL.Printers: Pressworks Enterprise, No 20, Jalan Usaha Satu 25/2A, 40400 Shah Alam.