July 2021 - Property & Divorce Lawyer Johor Bahru 新山律师

Should I retrench my worker?

Regardless of whether the employee’s monthly salary is lower than MYR 2000, retrenchment is still subject to the Labour Law Practice.
In the eyes of the law, the employer must have a legitimate reason and dismiss the employee with due process (dismissal with just cause and excuse).

In the event that the employee reports to the Labour Department and the employer loses the lawsuit,
The employee must be compensated for up to 24 months’ monthly salary (backwages),
and responsible for the employee’s loss of future earnings according to the Industrial Relation Act 1967.

What are Retrenchment?

Basically, retrenchment is one type of termination of contract of service under Section 12 of the Labor Law,
Retrenchment have their own set of legal principles and legal requirements to comply with.

The definition of retrenchment is job surplus (redundancy),
It can be happened due to economic recession, which leads to business closure or consolidation, and lower profits ,
and/or even the business has stopped operation.
The employer must be able to prove that the employee’s job position is no longer required by the company (lay-off).
it’s not employee’s poor performance nor the employee violates the employment contract.
The employer cannot simply retrench without proper justification.

The Retrenchment process

If the employer is aware of the plan to lay off workers,
it must report to the nearest labor department within 30 days ,
submit Form PK and report the company’s next measures and the list of employees involved.

Violation of the above regulations can lead to employers being prosecuted under Section 63 of the Employment Act,
and fines not exceeding RM 10,000.00

The decision to lay off employees must be progressive, for example, by letting employees to participate voluntary separation scheme,
temporary suspension of work, or salary reduction plan.

In the Code of Industrial Harmony (Code of Industrial Harmony), the Ministry of Human Resources of Malaysia encourages employers to implement the following measures to prevent employers from making the worst plan for layoffs.

Stop hiring;
Reduce overtime work;
Reduce holidays;
Reduce working days or shifts;
Reduce working hours;
Provide training;
Transfer to another department or branch;
Reduce expenses;
Reduce Salary;
Help employees find career vacancies.

* Any salary reduction or transfer must have an separate written contract.

If the above measures have been implemented and did not bring positive results,
employers can consider retrechment to lay off employees.

Principles in Retrenchment practice

1st priority -lay off foreign workers (FWCO) (Foreign Worker-First Out);
2nd priority- lay off foreign workers (LIFO) (Last-in First Out) ;
3rd priority- layoff of employees who do not have important skills;
Retain technical personnel who have important skills and are irreplaceable.

Notice of Retrenchement

Once the employer determines that the Retrenchment is inevitable,
The employer must give a notice of dismissal in accordance with the Employment Act ( Notice of Termination):-

If the employee is subject to the Employment Act of 1955 (monthly salary less than two thousand ringgit),

If the employment is less than two years, the employee must be given 4 weeks’ notice;
If the employment is more than two years and less than five years, the employee must be 6 Weekly notice;
If you have been employed for more than five years, you must give the employee 8 weeks’ notice.

If not subject to the Employment Act of 1955 (monthly salary exceeding MYR 2,000),
employers must give appropriate layoff notices in accordance with the original employment contract.

Employee severance payment

According to the 1980 Employment (Dismissal and Severance) Regulations,
All employees have a monthly salary of MYR 2 Below 1,000 will enjoy the following severance payment:-

If the employee has been employed for less than two years, the employee must be compensated for 10 days’ daily salary
If the employee has been employed for more than two years and less than five years, he must be given 15 days’ salary Daily salary compensation
If the employee has been employed for more than five years, the employee must be compensated for 20 days of daily salary.

If the employee’s monthly salary exceeds two thousand ringgits, the employee can be compensated according to the employment contract signed at that time.

My loved one died without leaving a will (Grant of Letters of Administration)

Letters of administration (also known as a grant of letters of administration) is a document issued by the probate registry. This allows someone to act as the administrator of an estate after someone has died.

Resealing Foreign Grant of Probate: A Step-by-Step Primer.

Resealing of Probate is the expression used when you need to apply to another jurisdiction, so that a Will that has already obtained a Grant of Probate in one country, can be recognised in another country (particularly, commonwealth country).

Life-Changing Advise Before You Adopt. 8 Things You Need to Know

Adoption is not something to be taken lightly. Parents should take their time to think through the adoption process and the impact it will make on their family and on the life of the child.

You need to ask yourself three tough questions before proceeding:
1) Why do I want to adopt?
2) How will adopting a child impact the people in my family?
3) Is my home environment stable and emotionally able to support the child?

Adopt a child through legal process

The adoption procedures may be made through a Originating Summons to the court under the Adoption Act of 1952 (for Peninsular Malaysia only). Whatever it is, the parents should not adopt a child through illegal means as the legal implication of it may affect a child for his/her entire life.

1: First hearing: Appointment of guardian ad litem

Upon an originating summon made into court, a hearing will be fixed to appoint a guardian ad litem (usually the welfare department) to carry out an observation for a certain period. During the observation period, the guardian ad litem will conduct home visits to interview the adoptive parents and the child, monitor the home environment so as to make sure the child is fit for adopt.

It shall be the duty of the guardian ad litem to investigate as fully as possible all the circumstances of the child and the applicant, and all other matters relevant to the proposed adoption, in order to safeguard the interests of the child before the Court, and, in particular, it shall be his duty to include in his investigation the following questions:

(a) whether the statements in the form of application required are true and complete, particularly as regards the date of birth and the identity of the child;
(b) whether any payment or other reward in consideration of the adoption has been received or agreed upon, and whether it is consistent with the welfare of the child;
(c) whether the means and status of the applicant are such as to enable him to maintain and bring up the child suitably, and what right to or interest in property the child has;
(d) what insurance, if any, has been effected on the life of the child;
(e) whether it is desirable for the welfare of the child that the Court should be asked to make an interim order or, in making an adoption order, to impose any particular terms or conditions or to require the adopter to make any particular provision for the child.

(2) The guardian ad litem shall regard all information obtained by him in the course of his investigation as confidential, and shall not divulge any part of it to any other person except so far as may be necessary for the proper execution of his duty.

If the Court refuses to grant either an interim order or an adoption order on the grounds that the adoptive home is unsuitable, the Court may, if it considers it to be in the interests of the child so to do, make an immediate order committing the child to the care of the Director General of Social Welfare.

2. Second hearing : Welfare report

At the second hearing, a welfare report will be submitted to the court either to support or oppose the adoption application. The court will consider the welfare report and decide the application in the best interests of the child. The court is also entitled to and may interview the adoptive parents to confirm their intentions and the child to ascertain his or her wishes. When an adoption order is passed by the court, the child’s legal ties with the biological parents will be severed and the adoptive parents will assume all rights, obligations and responsibilities in the care and education of the child.

3. Conditions for Adoption?

Section 4 of the Adoption Act: Restrictions on making of adoption orders

(1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants—
(a) has attained the age of twenty-five and is at least twenty one years older than the child in respect of whom the application is made unless the Court is satisfied that there are special circumstances for the making of an order;
(b) has attained the age of twenty-one and is a relative of the child; or
(c) is the mother or father of the child.

(2) An adoption order shall not be made in any case where the sole applicant is a male and the child in respect of whom the application is made is a female unless the Court is satisfied that there are special circumstances which justify as an exceptional measure the making of an order.

(3) An adoption order shall not be made in favour of any applicant who is not ordinarily resident in Peninsular Malaysia or in respect of any child who is not so resident.

(4) An adoption order shall not be made in respect of any child unless—
(a) the child has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order;
(b) the applicant has at least three months before the date of the order by a written notification informed an officer of the Social Welfare Department of the State in which he is for the time being resident of his intention to apply for an adoption order in respect of the child.

4. Consents to adoptions?

Section: 5 of the Adoption Act : Consent to a adoption

(1) Except as provided in this section, an adoption order shall not be made except with the consent of every person or body of persons who is a parent or guardian of the child in respect of whom the application is made or who is liable to contribute to the support of the child and an adoption order shall not be made upon the application of one of two spouses without the consent of the other of them:

Provided that the Court may dispense with any consent required by this section if satisfied—

(a) in the case of a parent or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child;
(b) in the case of a person liable to contribute to the support of the child, that he has persistently neglected or refused so to contribute;
(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or
(d) in any case, that in accordance with any written law relating to the adoption of children for the time being in force in any country any competent authority has given permission or granted a licence authorizing the care and possession of the child to be transferred to the applicant.

The Court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent

5. Matters with respect to which Court to be satisfied

Section 6 of the Adoption Act: matters to be considered by the court

The Court before making an adoption order shall be satisfied—

(a) that every person whose consent is necessary under this Act, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;
(b) that the order if made will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child;
(c) that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction; and
(d) that there has been a substantial change in the circumstances, if it appears that the applicant has made a previous application under this Act in respect of the same child.

6. Effect of adoption order

Section 9：Effect of an adoption order
Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent, guardian of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock.

7. Birth Certificate

In respect of the Certificate of Birth , every adoption order shall contain a direction—
(a) to the Registrar General that the word “adopted”, “adopter” or “adoptive” or any word to like effect shall not appear in the Certificate; and
(b) to the natural or adoptive parent or parents, as the case may be, to surrender to the Registrar General the Certificate of Birth of the child issued under the Births and Deaths Registration Act 1957.

8. Citizenship

Both the Adoption Act and the Registration of Adoptions Act and are silent on the issue of citizenship for adopted children. The Parents who are considering adopting a child are advised to check on this issue as the citizenship and nationality of the adoption child are separate issue to be dealt separately . An Adoption order will not change the status of the nationality of the child automatically and will subject to the discretion of Immigration Department.

Understanding the Perfection of Transfer (POT) and Perfection of Charge (POC) No One Talks About

Once the construction has completed, the developer will apply for the subdivision of Master title, which will eventually dividing up the big development (under the Master Title) into smaller pieces, i,e Individual Title or Strata Title. This is when the Perfection of Transfer(POT) and Perfection of Charge (POC) comes into play whereby all the parcel owners need to register their ownership from developer to each parcel owner.

Buying a House? Here’s are the 5 points that what you need to know about stamp duty.

Stamp duties are imposed on instruments and not transactions. An instrument is defined as any written document and in general,- stamp duty is levied on legal, commercial and financial instruments. The person liable to pay stamp duty is set out in the Third Schedule of Stamp Act 1949. The Assessment and Collection of Stamp Duties is sanctioned by statutory law now described as the Stamp Act 1949.

Buying your first house? Here’s are the 2 rebates you do not want to missed

Buying a home is often the largest purchase you will make in your lifetime. It is really important you have the right information, at the right time, to ensure you make informed decisions. We will share some of the exemptions or rebates given by the government to assist those first-time buyers.

Caveat: Introduction, Meaning and Scope

dertaken lightly. It has immediate legal effect and can have significant commercial and financial consequences. Caveats act as an injunction preventing the registration of dealings. This means that when filing a caveat the client must be ready, if necessary, to demonstrate to the Court that there is a serious question to be tried that the interest in land which is asserted in the caveat exists.

Homeowner’s nightmare -Title deed lost. Here are the 6’s steps you need to do.

1.Make a police report to the police station nearby immediately stating the narratives on how you lost your title deed particularly the time, place, with the title deed number. 2.Get a lawyer and conduct a land search to ensure your ownership to the land still remains intact.

3 Essential Tips in Removing or Adding a co-owner

When one person is prepared to remove another co-owner or adding another person jointly as a co-owner, it is legally considered an “equity” transfer of the house and it entails a separate contract to be signed. It is not a straightforward case and here’s are the things to consider.