Legal Cauldron issue 1 of 2009


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A bi-annual legal magazine published by Messrs Jayadeep Hari & Jamil (Malaysia)

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Legal Cauldron issue 1 of 2009

  1. 1. Legal Cauldron We Care ***** Since 1997 Messrs Jayadeep Hari & Jamil (Advocates & Solicitors) was actually a normal continuous THE EFFECTS OF A FIXED employment contract couched as a fixed TERM EMPLOYMENT term contract and as such the law There are many pertaining to a continuous employment who have asked me should prevail. Conversely, an employer who what are the effects has issued a fixed term contract would argue of a fixed term that the employment contract was for a contract of employ- limited period only and therefore even if the ment? In fact many termination is unlawful, the compensation employers are of payable should be limited to the balance the opinion that period remaining under the fixed term with a fixed term contract.In this issue: contract of employment, the employer has the option to continue or discontinue the What the Indus- contract of employment upon the expiry of trial Court will setThe Effects Of A Fixed Term 1Employment. that fixed term. In fact, there have been out to do is to instances where employers resort to a fixed determine whetherLegal Systems: Nigeria And 4Malaysia In Comparative term contract because the employer feels the employmentPerspectives that by having a fixed term say even a one- contract, althoughLegal Knowledge Management 8 year contract, then, even if the named a fixed(A Knowledge Manager’s employment does not work out, all the term contract, wasInsight) employer has to do is to not renew the indeed so. This contract of employment. would mean that the Industrial Court would go behind the contract to determine the JHJ Bi-annual Unfortunately the law in Malaysia is not intention of the parties and determine Newsletter that straightforward. The Industrial Law in whether the employment contract was Vol. 1/2009 Malaysia has recognised that there have indeed a fixed term contract or a been instances where the employers may continuous employment contract. resort to a fixed term contract to avoid either continuing to employ the employee The first thing that an employee must do isNo. KDN: PP15706/02/2009 or to limit the possible compensation in to prove that his/her employer had (020636) the event the employee is deemed to be intended to renew the fixed term contract. terminated without just cause and excuse. In most cases, if this is proven, the court will more likely than not determine that the What I hope to achieve in this article is to fixed term contract was indeed a give some insight on the law pertaining to continuous employment contract. In the a fixed term contract. case of Man Yau Holdings Bhd v Pakirisamy Karunakaran (2003) 2 ILR 776, In most cases where the employee was the court held that the burden is on the terminated and where he/she claims that Employee to prove that the Employer the termination was without just cause and intended to renew the contract. The parties excuse, an employee with a fixed term can resort to the terms of the contract to see contract will argue that his contract whether there exist a term which allows for Visit us at
  2. 2. Page 2 Legal Cauldronthe contract to be renewed. Therefore, the terms in the con- termination of the claimant’s services without just cause ortract are very important. excuse. The claimant’s tenure with the relevant company ended upon expiry of the fixed term. The Employee can also adduce evidence of any arrangement or vi) The court further held that the words “a further contract promise that may have been made by may be negotiated on a mutually agreed basis” imposes the the Employer to suggest that the element of discretion on either party to negotiate. This Employee’s contract will be renewed negotiation is not mandatory. It also means that if there beyond the period stated in the fixed was an agreement for a further contract it must be term contract. This means that the mutually agreed by both parties. Employee must show that he had a legitimate expectation that his contract vii) Another point made by the court was that in the instantwill be renewed for a further period. case this is the first fixed term contract and there were no previous renewals of the said contract.To understand this better, allow me to refer to a case andreproduce briefly what was stated in that case. In the case of What is important to note from theAsian Supply Base Sdn Bhd v Terry Mogindol (2005) above case is that the Industrial1ILR 708 the Court held as follows: - Court did investigate to determine whether there were anyi) The Claimant commenced work on 26 October 1998 and circumstances, which could have led his last day of contract was 25 October 2000. The the employee to believe that the Claimant’s contract was not renewed beyond 25 Oct 2000. contract was indeed a normal The Claimant claimed that by not renewing his contract, he employment contract and not a fixed was terminated without just cause and excuse. term contract. One of the things considered by the court was whether this was the first fixed term contract i.e. thereii) It was also a term of the said contract that ‘at its were no previous renewals of the said contract. This implies completion, a further contract may be negotiated, on a that if there were renewals before then, chances are the mutually agreed basis. court would have found that the fixed term contract was indeed a normal employment contract.iii) The correct approach to be applied in the determination of the issue with regard to a fixed term contract is by determining first whether or not the contract in question was The court in the case of a genuine fixed term contract. Petroleum Nasional Berhad v Michaeliv) If the Industrial Court made a finding that it was not a Norberg [2004] 2 ILR genuine fixed term contract but was instead a normal 776 also held that the contract of employment, only then would the Industrial employee there did not Court be required to ask whether there was a dismissal or prove that he was given not and that if so, whether it was with just cause or excuse. an assurance that his In the instant case, since a finding was reached that the employment contract contract concerned was indeed a genuine fixed term contract was to be for a the question of there being a dismissal or not does not arise. long-term period. The Once it has been established that there is a genuine fixed court held that there term contract, the dissolution of the contract upon reaching was no evidence that the contract there was a permanent the expiry date of the fixed term would clearly spell the end contract dressed up in the form of fixed term contract. of the worker’s tenure with the relevant Company.v) The expiry of a fixed term contract would not amount to a Visit us at
  3. 3. Page 3 Legal CauldronConclusion employer can simply terminate an employee. Furthermore, if it is proven to be a fixed term contract, andWhat employers would need to be reminded of is that not the employee was unjustly terminated, then hisall fixed term contracts would be deemed so by the courts. compensation would be for the remaining period of theThe courts will in fact look into the circumstances of the contract. If on the other hand, the contract were deemed aemployment and then determine whether it was indeed a normal long-term contract, then the compensation or backfixed term contract or a normal contract of employment. wages payable would follow the current law, which applies,Some of the circumstances the court will look into would to any normal - It is hoped that with this brief article, the position witha. whether there was any assurance or conduct by the regards to a fixed term employment contract has become employer to give the employee an indication or a little clearer. assurance that his fixed term contract would be continued long term;b. whether there was a previous renewal of the fixed term contract, which would give an indication to the employee that, his contract was in fact a normal long-term contract. What is important to note how- ever is that this dispute as to whether a contract is a fixed term or a normal long-term con- tract is only relevant when the fixed term contract is not Harikannan Ragavan renewed. It is only then that the Partner & Head of Litigation Department dispute of whether it is a fixed term contract arises. This isbecause the employee would argue that by not renewing thecontract of employment, the employer has terminated hisemployment without just cause and excuse. The employeron the other hand would argue that they are merely follow-ing the terms of the contract, which allows them to notrenew. If the court determines it is not a fixed termcontract, then the employee will most likely succeed in hisclaim for unjust termination.The dispute as to whether a contract of employment isfixed or not does not matter when determining whether thetermination of an employee was with just cause and excuse,if the termination was done during the validity of the fixedterm contract. It matters here when determining quantum.What this means is that during the period of the fixed termcontract, if an employee is terminated, the employer muststill prove that it was done with just cause and excuse. Justbecause it is a fixed term contract does not mean an “We Care”
  4. 4. Page 4 Legal Cauldron LEGAL SYSTEMS: NIGERIA AND established in 1962, is the body responsible for the education and registration of prospective lawyers in M A LAYS IA I N C O M PA R AT I VE Nigeria. In order to fulfill this role effectively, the PERSPECTIVES. Council established the Nigerian Law School (“Law School”) in 1963. The Law School operatesSome months ago, one of our partners, Mr. on four campuses nationwide (Lagos,Harikannan Ragavan (“Mr. Hari”), flew to Enugu, Abuja, and Kano), and providesDubai to handle a case for a client. He practical training for fresh law graduates.relished the opportunity of exploring theintricacies of different legal systems. However Generally, to be admitted to the Lawuncertainty over the potential differences School, candidates must hold a law degreebetween the Dubai legal system and the from recognized Nigerian or foreignMalaysian legal system that he is so familiar universities. In addition, candidates mustwith, and their likely impact on the outcome be of exemplary character, and normally beof that case caused him some measure of Nigerians. They must also have passed thedisquiet. following core courses, in their undergraduate law pro- grammes: The Law of Torts, Commercial Law; The LawIn the scenario just represented, the impact of differences of Contract; Constitutional Law; Criminal Law; Landand/or similarities in legal systems on legal outcomes can Law; Law of Evidence; and Equity & quite critical. Mr. Hari’s client won in that case, becauseboth legal systems although procedurally different, did not This requirement is made because the Law School doesvary in the general appreciation of substantive law, which not teach the theoretical aspects of the above courses. Itin this case was the law, and principles of contract. . only focuses on the practical aspects of the professional work that candidates would be expected to do later whenThis paper compares the legal systems of Nigeria and they qualify as both Solicitors and Advocates.Malaysia, and highlights noticeable differences andsimilarities. It should be noted that both countries are The School usually conducts two examinations: Bar Part Iformer British colonies, with a substantial British and Bar Part II. The Bar Part I Exam is compulsory for allinfluence. To what extent is this reflected in their respective candidates who obtained their law degrees fromlegal system? outside Nigeria. Such candidates are required to take and pass the following bridging courses which are meant toThe comparison is based primarily on the court system, the introduce them to the principles of Nigerian Law:applicable laws, and the system of legal education in both Nigerian Legal System; Nigerian Land Law; Nigeriancountries. These parameters have been chosen because they Constitutional Law; and Nigerian Criminal Law.are typically the major components of a legalsystem. It is hoped that those who are not lucky enough to Of course, all law graduates from recognized Nigeriantravel literally, would nevertheless gain useful universities are automatically exemptedinsights of different legal systems from this pa- from the Bar Part I Exam. Theseper, wherever they are. candidates are only required to sit for and pass the following courses in the BarLegal Education Part II Exam, which is the main professional qualifying examination:The Legal Education Act regulates the Legal Drafting and Conveyancing;training of lawyers in Nigeria, while the Legal Commercial Law; Criminal ProcedurePractitioners Act regulates the practice of law Law; Civil Procedure Law; Law andin the country. Practice of Evidence; and General Paper, which comprises Legal Practitioners’ Accounts,The Council of Legal Education (“Council”), which was Income Tax Law; Office Management and Professional Ethics. Visit us at
  5. 5. Page 5 Legal Cauldron Only persons who intermittent periods, spanning several weeks that give have attended the candidates the opportunity to experience the law in course of practical practice. They learn office work and attend court training at the Law sittings. Candidates undertake the Law Office School and have Attachment while still studying at the Law School, and successfully passed this is one of the conditions for qualifying to sit for the the requisite Bar Bar Part II Exam. No remuneration is expected or paid. Exam are eligible, under the Legal In Malaysia, during Practitioners Act, their chambering to be officially period, candidates admitted to the participate in the Nigerian Bar, and legal aid scheme or-issued with a Certificate of Call to the Bar by the Council ganized by theof Legal Education, permitting them to practice law in Malay sian Ba r.Nigeria. Unlike in Great Britain, persons so qualifying do Upon successfulso as both Solicitors and Advocates of the Supreme Court completion of theseof Nigeria. requirements, they are then admitted toThe Council of Legal Education; the Body of Benchers; the the Malaysian Bar.Legal Practitioners Disciplinary Committee; the In the case ofNigeria Bar Association; the General Council of the Bar; Nigeria, candidates are not required to participate in thethe Legal Practitioners Privileges Committee; and the Legal legal aid scheme, or similar programmes before beingPractitioners Remuneration Committee maintain legal admitted to the Bar. However, it is compulsory for allstandards and integrity. Nigerian graduates, including those from the Law School, to undergo one full year of national service under the National Youth Service Scheme, during which, theyIn Malaysia, persons aspiring to become lawyers must, as in engage in various activities, including the rendering ofthe case of Nigeria, first obtain an undergraduate degree in legal from a recognized university. They must then eithercomplete the Bar Vocational Course in England and becalled to the English Bar, or pass a qualifying examination Legal Systemin Malaysia and obtain a Certificate in Legal Practice (CLP).The CLP resembles the Bar Part II Exam to some degree. The Nigerian legal system is a mixture of received EnglishCandidates are tested in four papers: Civil Procedure; law, Nigerian judicial decisions, customary law (regulatingCriminal Procedure; Professional Ethics; and General personal and family relations mainly in SouthernPaper. The components of the General Paper in this case Nigeria), Syariah law (regulating Moslem personal lifeare Contract Law, the Law of Torts and the like, which mainly in Northern Nigeria), legislative enactments, anddiffer from those of the Bar Part II Exam. Candidates who the 1999 Constitution, which is the supreme law of theobtained their law degrees from the University of Malaya country.or the National University of Singapore, or candidates inpossession of relevant qualifications otherwise recognized The 36 states in the country, and Abuja, which is the fed-by law, are generally exempted from these examinations. eral capital territory (FCT), each has its own laws, but these laws are all subject to the 1999 Constitution. TheHaving fulfilled these requirements, candidates must next federal and the state court systems do not function incomplete nine (9) months of practical training called parallel. To say that each state has its own laws does not“chambering” at a law firm in Malaysia. This is similar to exactly mean that each has its own legal system.what is called “Law Office Attachment” in Nigeria (or“pupilage” in the United Kingdom), which consists of two The Malaysian legal system is similarly a mixture of “We Care”
  6. 6. Page 6 Legal Cauldronreceived English law, Malaysian judicial decisions, Again while a panel of three Justices may hear andcustomary law (regulating non-Moslem personal and family determine matters before the Federal Court, in Nigeria,relations), Syariah law (regulating Moslem personal life), legis- a panel of five Justices hears and determines matterslative enactments, and the Federal Constitution. coming before the Supreme Court. And in matters relating to the interpretation of the Nigerian With regard to the court system, Constitution, or an alleged violation or threat of there are four major categories of violation of a fundamental right, a panel of seven courts in Malaysia. The Federal Justices presides. Also, in addition, as in most Nigerian Court is at the top of the judicial courts, all proceedings are conducted strictly in English. hierarchy. This is the equivalent of the Nigerian Supreme Court, which In Malaysia, a President heads the Court of Appeal, just is the highest court in the country. as in Nigeria. The Court has fifteen other Judges whoMoreover, like the Nigerian Supreme Court, the decisions of are appointed by the Yang di-Pertuan Agong, based onthe Federal Court are binding on every other court in the the recommendation of the Prime Minister, aftercountry. In Nigeria, the Chief Justice heads the Supreme consulting the Conference of Rulers. In Nigeria, theCourt. This is also the case in Malaysia, where the Chief President of Nigeria appoints the Court of AppealJustice heads the Federal Court. President, based on the recommendation of the National Judicial Council, and subject to approval byHowever, the composition of the Supreme Court is the Nigerian Senate. The other Court of Appealdifferent from that of the Federal Court. Whereas the Federal Justices are appointed in a similar manner, but theCourt is made up of the Chief Justice, the President of the approval of the Nigerian Senate is not required.Court of Appeal, the two Chief Judges of the two HighCourts in Sabah and Sarawak, as well as seven other judges, However, as in Malaysia, a panel of three Justicesthe Nigerian Supreme Court may have as many as twenty-one presides over matters before the Court of Appeal in“full time” Justices, apart from the Chief Justice. And Nigeria. But while in Malaysia, High Court Judges mayalthough these Justices are usually appointed from the High simultaneously sit in the Court of Appeal, this is not theCourts and the Court of Appeal, the High Court Judges and case in Nigeria. Moreover, the Court of Appeal inthe Court of Appeal Justices do not simultaneously Nigeria, unlike its Malaysian counterpart, does not holdconstitute, or function as Justices of the Supreme Court. circuit sessions. Instead, it operates in ten judicial divisions spread across the country, with as many asAlso, there are apparent variations in the method of judicial forty-nine Justices.appointment in both jurisdictions. In Malaysia, all themembers of the Federal Court are appointed by the Yang In Malaysia, there are two Highdi-Pertuan Agong (who is a Monarch elected by the nine Courts: the High Court in Malaya,Malay Rulers of the designated states in Malaysia), which acts and the High Court in Sabah and on the advice of the Prime Sarawak. Both have a Chief Judge, Minister, after consulting the and respectively forty-seven and ten Conference of Rulers. In Judges. The Judges are appointed Nigeria, on the other hand, the by the Yang di-Pertuan Agong President of Nigeria appoints acting on the advice of Prime the Chief Justice and the other Minister, after consulting the Justices of the Supreme Conference of Rulers. In Nigeria, a State Governor Court, based on the appoints the Chief Judge and Judges of a State Highrecommendation of the National Judicial Council, the Court, based on the recommen-equivalent of the Yang di-Pertuan Agong, and subject to dation of the National Judicialapproval by the Nigerian Senate. In both jurisdictions Council. The appointment ofhowever, the decision-making in the Supreme Court and in the Chief Judge requires, inthe Federal Court is by a simple majority. addition, the approval of the Visit us at
  7. 7. Page 7 Legal CauldronState House of Assembly. A single Judge presides over Sessions Court; the Court forproceedings in the High Courts. This is identical to the Children,; and thesituation in Malaysia. The High Courts in both Penghulu’s Court, in the casejurisdictions also have no jurisdiction over Syariah matters, of Peninsular Malaysia. Inwhich are handled by Syariah Court . Nigeria, the inferior courts similarly include theLike its Malaysian counterpart, a Chief Judge heads the Magistrate’s Court, and the Juvenile Welfare Court,High Court in Nigeria. However, there are by far many which is equivalent to the Court for Children. Themore High Courts in Nigeria, as every of the thirty-six states inferior courts also include the District Courts; the Area/in the country, as well as the (FCT) has a High Court. This Syariah Courts; and the Customary Courts. Except foris in addition to a Federal High Court, which handles the FCT, these courts are normally established undermatters concerning banking, tax and customs. state laws. The High Courts and other specialized courts exercise supervisory and appellate jurisdiction over them. In Malaysia, there is a Special Court, which hears civil or At the federal level, the Yang di-Pertuan Agong appoints criminal matters brought by or Magistrates on the recommendation of the Chief Judge, against the Yang di-Pertuan whereas at the state level, the relevant state authority Agong or any of the nine Malay appoints the Magistrates, based on the recommendationRulers. Special Courts similarly exist in Nigeria. They of the Chief Judge of that state. In Nigeria, a Stateexercise limited court powers on special matters for which Governor similarly appoints the Magistrates, but on thethey are created. These courts include the National advice of the State Judicial Service Commission. ThereAssembly Election Tribunals for the Federation, and are different grades of Magistrate’s Courts, which varyGovernorship and Legislative Houses Election Tribunals among the states. The Magistrate’s Courts in the 17for each State of the federation. In addition, there is the Southern states of Nigeria exercise summaryCourt Martial, and the National Industrial Court. As can jurisdictions in both civil and criminal matters. In the 19be seen, however, these courts are functionally different Northern states, they exercise only criminal jurisdiction.from the Special Court in Malaysia. The Court for Children in Malaysia was established In Malaysia there is under Section 2 of the Child Act 2001 to hear offences a distinction between committed against children. It comprises a Magistrate, the Superior Courts, , the assisted by two advisors, if necessary. In Nigeria, this Subordinate Courts and court is called the Juvenile Welfare Court. As in the Adjudicatory Bodies/ Malaysia, a Magistrate and two Assessors constitute the Tribunals. In Nigeria, a Juvenile and Welfare Court, and one of the Assessors similar distinction is made would usually be a woman. In some states, the Chief between Superior Courts Judge appoints the Assessors.and Inferior Courts. The Superior Courts in Malaysia arethe Federal Court, the Court of Appeal, the High Court The Juvenile Welfare Courtand the Special Court. In Nigeria, the Superior Courts similarly hears charges that areinclude the Supreme Court; the Court of Appeal; the brought against children andFederal High Court; the High Court of the FCT; the young people in a special, largelySyariah Court of Appeal of the FCT; the Customary Court confidential setting. Some statesof Appeal of the FCT; the High Court of a State; the have their Children and YoungNational Assembly Election Tribunal; and the Governor- Persons Law, and children areship and Legislative Houses Election Tribunal. defined as persons who have not attained the age of 14 years. A young person is one who has attained the age ofSubordinate courts in Malaysia, the equivalent of inferior 14 years, but is under the age of 17 years.courts in Nigeria, consist of the Magistrate’s Court; the “We Care”
  8. 8. Page 8 Legal CauldronThe children and Young Persons Law(Northern Nigeria Laws, 1963) Legal Knowledge Managementdefines a young person as a person (A Knowledge Manager’s Insight)who has attained the age of 14 years,but has not attained the age of 18 Introductionyears. In Malaysia, a “child” is,however, defined differently as a In a nutshell Legal Knowledgeperson under the age of 18 years, and Management (LKM) refers to -in criminal proceedings, as one who the collection, organization, dis-has attained the age of 10 years. semination, and reuse of knowledge contained natively withinOne can glean from this comparison documents and individuals’ minds.that the legal systems of Nigeria and The term specifically includes theMalaysia differ in several ways, in development of standard forms,so m e i ns t a n ce s, si g ni fi c a n t l y . tools, and templates to streamlineHowever, there are considerable the delivery of service. Thissimilarities, as well. Indeed, it could be definition is quoted from the LKMasserted that local variations aside, White Paper One entitled: “Legalboth systems are largely the same, with Knowledge Management A Holistica noticeable British influence. Thus, a Model” dated April 2003.Malaysian lawyer, like Mr. Hari, whosuddenly finds himself in Nigeria, In my experience talking to fellow Knowledge Managers and lawyers in Malaysia,saddled with some legal work, would, the majority of law firms are generally unaware or have shown little interest inno doubt, find the legal landscape adopting LKM initiatives as part of their management milestone or overallrelatively familiar. The same goes for a management strategy. Perhaps this is because many within the Malaysian legalNigerian lawyer visiting Malaysia. fraternity are oblivious or not yet completely convinced of the value in LKM initiatives. Possibly many are against adopting LKM initiatives due to the precon- ception that it is time consuming and “not billable”. To be fair, since salaries and bonuses in law firms and most other organisations are often based on achieving billing and collection targets, it would be difficult to convince employers to invest “valuable time’ in what they perceive as non-billable work. Ironically however, law firms are highly dependent on two factors for survival i.e.: (a) the amalgamated legal knowledge of the firm; and (b) the ability of the firm to manage that knowledge and convert it into dollar and cents. The time saved by the firm once the necessary LKM initiatives are up and running will allow employees to be more efficient and lawyers to have a shorterFrank Akpoviri turn around time in producing their work thereby increasing their billable work.(An intern with JHJ and currently Preservation of knowledge is important since it ensures that crucial workpursuing his postgraduate degree in products do not go to waste or vanish with employees that leave the firm but arelaw [LLM] with the National stored for the benefit of continuing members of the firm and also serves as aUniversity of Malaysia [UKM]) resource to help new recruits to bring themselves up to speed more quickly with the firm’s work. In recent years, some Malaysian firms have set up their own Knowledge Visit us at
  9. 9. Page 9 Legal CauldronManagement Departments with the hope of following This includes billing and collection targets as well as detailedtheir foreign counterparts that have adopted LKM information on the actual revenue of the firm. The employeesinitiatives. Although this trend is encouragable, the play a crucial role in the management of the firms’ clients andmode and manner in which it is adopted locally may be this is not reserved or limited to a Partner or a lawyer. Wequestionable? have taken such steps in JHJ to inculcate a common sense of ownership to the firm and to prevent the isolation ofThe LKM White Paper of 2003 indicates that most employees from the LKM initiatives. These steps help foster afirms (the study did not cover firms in Malaysia since sharing environment where lawyers are more willing to workLKM is still at its infancy in Malaysia) launch a together in teams and combine their knowledge for thefull-blown LKM initiative without a thorough benefit of the firm’s practice and its clients.understanding of Knowledge Management theories andhow LKM will or should benefit We do not profess to be experts in thethe firm. These firms implementation of LKM, nevertheless JHJconfine their Knowledge Manage- has taken some key initiatives to createment Department’s scope to and develop a knowledge sharing cultureconducting legal research and be- within the firm and these include:lieve that by installing certainsoftware program and creating a (a) Ensuring relevant and pertinent infor-designated server to store prece- mation regarding clients are copied todents will solve all the firm’s ills. all the employees of the firm to ensureFrequently, when this approach is that everyone is kept in the loop and istaken, employees are left isolated able to attend to the client in thefrom the Knowledge Department absence of the person in charge [this isand not provided adequate of course practiced with strict and duetraining and understanding to regard to clients confidentiality];learn to use Knowledge Manage-ment tools effectively and under- (b) Creating a central work product depository (i.e. a mainstand the concept of LKM. Such practices are doomed server) which is a central location in which legal workfor imminent failure. LKM is a synergistic concept that product is accumulated, organized, and maintained;must be adapted in all the various departments in thefirm, which includes finance, human resources, (c) Every employee is involved and aware of the actualadministration and not just the legal units of the firm. billings and collection of the firms [No one is left out and this creates a sense of ownership to the firm];LKM is not a marketing gimmick! It is a culturalchange in the practice and management of legal services (d) Support staff’s are encouraged to mingle with the client’sthat must be embedded in and practiced by every support staff to create a better rapport between the firmemployee of the firm. It has to start with the basics and and its client at all levels [This enables the employee’s ofin the absence of software-assisted programs. the firm to understand and appreciate the characteristic of every client and fulfill their needs]; Encapsulating the Firms Knowledge (e) Providing training for all its employees on the value of LKM and the benefits it can reap if properly applied; Knowledge sharing is the root [This creates an awareness and encourages employees to element to an effective LKM embrace the cultural change LKM promotes]; initiative. In Messrs Jayadeep Hari & Jamil (JHJ) informa- (f) Employees are required to be well informed about the tion pertaining to manage- firm’s clients. Whether they are corporations, small ment strategy of the firm is businesses or individuals, — understanding the client’s shared with all its employees. interests, positions and expectations is important. “We Care”
  10. 10. Page 10 Legal Cauldron Maintaining an accurate client knowledge base por- of check to ensure that there is no delay and all the KIV’s trays the importance the firm gives to the client and concerning a matter is in place. enhances a cordial relationship; and Technology and LKM(g) Circulating bi-monthly legal updates and bi-annual newsletters to clients for free with a goal of sharing The use of technology in a LKM initiative our firm’s knowledge on the latest development of is purely to enhance and computerize the the law and at the same time educating clients. existing processes, which can be other- wise done manually. It should not beKnowledge sharing is an idea that must be embraced seen as a replacement to the humanthrough the appreciation and understanding of the element in LKM. Only a firm with anbenefits it can garner as opposed to a unilateral decision embedded knowledge sharing culture can find the embraceby the management to force it onto its employees. As technology on a broad spectrum of their business and legalsuch, LKM initiatives should never start of as a full-blown needs work to their benefit. Technological advances hereexercise but a carefully planned initiative that blends with would include storage of precedents, time and billing soft-the goals and motives of the firm. ware, file management systems, contact information, docu- ment collections, the firm’s calendar system etc.The LKM needs of every firm is unique in its own way.However there are certain standard elements that should After the LKM plan is formulated and the firm hasfeature in a LKM initiative. The legal profession is syn- decided what data needs to be captured, the firm mustonymous to the business of selling knowledge. decide what hardware and software are needed to implement the plan. The array of available legalTo facilitate a smooth storage of the firms knowledge, the technology packages is overwhelming. Some firms use afirm is required to come up with a LKM plan which different application to handle each aspect of their KMincorporates best practices that include standard needs. Others rely on one centralized product such as a caseoperating procedures of the various departments (this management or matter management package, and utilizecomprises of steps that begin with the opening of a new add-on features as additional needs are realized. Employeesfile to documents to be prepared and end with the are in a unique position to recommend or choose softwareclosure of the file) and an employee hand- applications since it is they that would be involvedbook which regulates the conduct of em- in the day-to-day operations of the firm.ployees from a human resource andadministration standpoint of the firm. Process management is accomplished withThese processes are forms of tools that must applications that keep track of tasks, dates andbe in place to ensure that the data and resource allocations. Office suites and caseresources the firm produces is not put to management programs usually come with awaste but captured and catalogued and calendaring program or task manager adequatestored for future use. for small firms or individual use. There also are applications specifically used to manage projectsHaving a framework on a series of steps it takes to from start to finish, including cost accounting, generatingcomplete a project or accomplish a goal is necessary to charts and reports on various aspects of the project, and theensure good organization and work quality. For instance creation of a generic timeline so future projects can bein JHJ, we developed a Conveyancing Checklist for the planned based on the time required by previous projects.various scenarios concerning the sale and purchase of a Process management, whether done with a hand-drawn flowproperty and loan documentation which includes those chart or a sophisticated project management softwareproperties with or without title, title with restriction or a program, requires a complete understanding of the logisticscharge attached etc. Under this checklist all the steps of the process, the resources needed to complete the projectfrom the receipt of instructions to the final step of according to established deadlines, and the ability to plan forperfecting the transfer of a property is covered. A general contingencies that might arise during the course of thetimeline is also provided in an excel spreadsheet as a form project. Visit us at
  11. 11. Page 11 Legal CauldronLKM initiatives are for firms with a progressive attitude and reporting successes and failures. The process of improvement is always on going.and proactive management style. These firms are success-ful because they recognize that to stay competitive, they Conversely, we should stay clear from:must adopt new systems and procedures that enhancethe quantity of work produced without sacrificing the • Selfish attitude – internal knowledge sharing must notquality. be avoided. No single person can claim ownership over a work product. It belongs to the firm and as such it as ofLKM: From Experience right available to every employee.Experience has thought us in JHJ that • Assuming KM is about technology and let the ITthere are some factors that are department manage LKM initiatives;apparent when it comes to makingLKM workable in our firm. These • Expecting that people will "make time" for LKM. Eitherinclude: give them extra time, or specifically re-balance current responsibilities; and• Visible involvement of the Management – employees should be able to appreciate the serious- • Being contented with the initial LKM Plan that has been ness the management has attached to LKM. It must put into place – initial initiatives will always give rise to be unequivocally made known that LKM is an teething problems and it is only with trial and error can integral part of the firm and that the failure to ob- LKM initiatives be improved if not perfected serve or adhere to LKM initiatives will only be futile; Conclusion• Aligning LKM initiatives with the standard operations of the firm encourage uniformity in poli- In the three (3) years since we started our LKM initiative, we cies with all departments. have found through feedback within and outside the firm that LKM correlates with the basic fundamentals of running• Including one KM-specific objective in annual, JHJ. LKM is an exercise that can suit and benefit any law formal "Goals & Objectives" for each employee. firm not just JHJ and it is not dependent on the size of the (This includes "LKM" assessment in performance reviews and in compensation decisions) firm and the depth of its pockets. JHJ is a good example of a medium sized firm that embraced LKM to its benefit and to• Incorporating LKM into the annual performance their clients benefit. Legal firms in Malaysia whether large or appraisal review and setting of goals/objectives. small should be encouraged to incorporate LKM as a culture within and as part of their day-to-day operations. Technology• Providing professional Training & Development. - is only there to assist but not achieve a firm’s goals. All that so that we can synergistically embed LKM values is required as a start is the development of a knowledge into new-hire orientation programs, and/or producing regular seminars for existing employees to sharing JHJ &Siam Legal Signing Of Theprocesses and policies culture and manually creating Memorandum Of Understanding Solidifying Our Alliance that encourages such a culture within the firm. develop and contribute to LKM initiatives;• Not to be overly dependent on technology and to keep things as simple as possible• Putting an individual who has real passion for LKM to be in charge of LKM initiatives, preferably a senior associate and one who has people skills, management experience, and credibility in the firm.• Giving every department in the firm (be it legal or non-legal) a role in designing the LKM strategy suited for their department. Aravindhran Balan• Regularly auditing the success of LKM initiatives Knowledge Manager & Editor “We Care”
  12. 12. This newsletter is produced by our Knowledge Department. Please feel free to contact the Department at We Care ***** Since 1997 for any further information pertaining to this newsletter.PUBLISHER:Messrs Jayadeep Hari & Jamil(Advocates & Solicitors)Suite 2.03, 2nd Floor, Block A,No.45, Medan Setia Satu,Plaza Damansara. Bukit Damansara,50490 KUALA LUMPURWebsite: 603-20-961478Fax: 603- 20961480 JHJ’S NEWLY ADMITTED PARTNER JHJ is pleased to announce that as of 1 January 2009 Ganesheraj Selvarajah has been admitted as Partner. Ganesheraj was born in Ipoh and pursued his undergraduate degree in law at the University of Staffordshire, United Kingdom. He joined JHJ fresh upon being admitted to the Bar in 2004. Over the five (5) years he has been with JHJ, he has garnered considerable experience in corporate, financial and commercial matters that includes mergers and acquisitions, corporate advisory work, regulatory matters, listings, corporate exercises, reorganizations and restructurings, insurance schemes of arrangement, joint-ventures, privatizations, corporate financing including project financing and corporate administration. The ability to develop successful professional relationships with client is one of the core competencies required of a partner in JHJ. Ganesheraj has over the years developed and continues to nurture high quality of work and provide unconditional dedication in servicing the needs of JHJ’s clients with whom he is involved on a professional level. We are proud to have him on board the management of JHJ and we look forward to having him take a lead in bringing JHJ to new and greater horizons.PRINTER: Intan Spektra Sdn Bhd, No. 12, Jalan Vivekananda, Brickfields, 50470 Kuala Lumpur