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

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 set
The Effects Of A Fixed Term 1
Employment. that fixed term. In fact, there have been out to do is to
instances where employers resort to a fixed determine whether
Legal Systems: Nigeria And 4
Malaysia In Comparative term contract because the employer feels the employment
Perspectives
that by having a fixed term say even a one- contract, although
Legal 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, was
Insight)
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 is
No. 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
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2. Page 2 Legal Cauldron
the contract to be renewed. Therefore, the terms in the con- termination of the claimant’s services without just cause or
tract 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 instant
will 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 and
reproduce briefly what was stated in that case. In the case of What is important to note from the
Asian Supply Base Sdn Bhd v Terry Mogindol (2005) above case is that the Industrial
1ILR 708 the Court held as follows: - Court did investigate to determine
whether there were any
i) 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. there
ii) 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 Michael
iv) 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
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3. Page 3 Legal Cauldron
Conclusion employer can simply terminate an employee.
Furthermore, if it is proven to be a fixed term contract, and
What employers would need to be reminded of is that not the employee was unjustly terminated, then his
all fixed term contracts would be deemed so by the courts. compensation would be for the remaining period of the
The courts will in fact look into the circumstances of the contract. If on the other hand, the contract were deemed a
employment and then determine whether it was indeed a normal long-term contract, then the compensation or back
fixed 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 employee.
be: -
It is hoped that with this brief article, the position with
a. 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 is
because the employee would argue that by not renewing the
contract of employment, the employer has terminated his
employment without just cause and excuse. The employer
on the other hand would argue that they are merely follow-
ing the terms of the contract, which allows them to not
renew. If the court determines it is not a fixed term
contract, then the employee will most likely succeed in his
claim for unjust termination.
The dispute as to whether a contract of employment is
fixed or not does not matter when determining whether the
termination of an employee was with just cause and excuse,
if the termination was done during the validity of the fixed
term contract. It matters here when determining quantum.
What this means is that during the period of the fixed term
contract, if an employee is terminated, the employer must
still prove that it was done with just cause and excuse. Just
because it is a fixed term contract does not mean an
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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 operates
Some months ago, one of our partners, Mr. on four campuses nationwide (Lagos,
Harikannan Ragavan (“Mr. Hari”), flew to Enugu, Abuja, and Kano), and provides
Dubai to handle a case for a client. He practical training for fresh law graduates.
relished the opportunity of exploring the
intricacies of different legal systems. However Generally, to be admitted to the Law
uncertainty over the potential differences School, candidates must hold a law degree
between the Dubai legal system and the from recognized Nigerian or foreign
Malaysian legal system that he is so familiar universities. In addition, candidates must
with, and their likely impact on the outcome be of exemplary character, and normally be
of that case caused him some measure of Nigerians. They must also have passed the
disquiet. following core courses, in their undergraduate law pro-
grammes: The Law of Torts, Commercial Law; The Law
In the scenario just represented, the impact of differences of Contract; Constitutional Law; Criminal Law; Land
and/or similarities in legal systems on legal outcomes can Law; Law of Evidence; and Equity & Trusts.
be quite critical. Mr. Hari’s client won in that case, because
both legal systems although procedurally different, did not This requirement is made because the Law School does
vary in the general appreciation of substantive law, which not teach the theoretical aspects of the above courses. It
in 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 when
This paper compares the legal systems of Nigeria and they qualify as both Solicitors and Advocates.
Malaysia, and highlights noticeable differences and
similarities. It should be noted that both countries are The School usually conducts two examinations: Bar Part I
former British colonies, with a substantial British and Bar Part II. The Bar Part I Exam is compulsory for all
influence. To what extent is this reflected in their respective candidates who obtained their law degrees from
legal system? outside Nigeria. Such candidates are required to take and
pass the following bridging courses which are meant to
The 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; Nigerian
countries. These parameters have been chosen because they Constitutional Law; and Nigerian Criminal Law.
are typically the major components of a legal
system. It is hoped that those who are not lucky enough to Of course, all law graduates from recognized Nigerian
travel literally, would nevertheless gain useful universities are automatically exempted
insights of different legal systems from this pa- from the Bar Part I Exam. These
per, wherever they are. candidates are only required to sit for
and pass the following courses in the Bar
Legal 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 Procedure
Practitioners Act regulates the practice of law Law; Civil Procedure Law; Law and
in 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.
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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 the
of Legal Education, permitting them to practice law in Malay sian Ba r.
Nigeria. Unlike in Great Britain, persons so qualifying do Upon successful
so as both Solicitors and Advocates of the Supreme Court completion of these
of Nigeria. requirements, they
are then admitted to
The Council of Legal Education; the Body of Benchers; the the Malaysian Bar.
Legal Practitioners Disciplinary Committee; the In the case of
Nigeria Bar Association; the General Council of the Bar; Nigeria, candidates are not required to participate in the
the Legal Practitioners Privileges Committee; and the Legal legal aid scheme, or similar programmes before being
Practitioners Remuneration Committee maintain legal admitted to the Bar. However, it is compulsory for all
standards 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, they
In Malaysia, persons aspiring to become lawyers must, as in engage in various activities, including the rendering of
the case of Nigeria, first obtain an undergraduate degree in legal aid.
law from a recognized university. They must then either
complete the Bar Vocational Course in England and be
called to the English Bar, or pass a qualifying examination Legal System
in 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 English
Candidates are tested in four papers: Civil Procedure; law, Nigerian judicial decisions, customary law (regulating
Criminal Procedure; Professional Ethics; and General personal and family relations mainly in Southern
Paper. The components of the General Paper in this case Nigeria), Syariah law (regulating Moslem personal life
are Contract Law, the Law of Torts and the like, which mainly in Northern Nigeria), legislative enactments, and
differ from those of the Bar Part II Exam. Candidates who the 1999 Constitution, which is the supreme law of the
obtained their law degrees from the University of Malaya country.
or the National University of Singapore, or candidates in
possession 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. The
Having fulfilled these requirements, candidates must next federal and the state court systems do not function in
complete 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
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6. Page 6 Legal Cauldron
received English law, Malaysian judicial decisions, Again while a panel of three Justices may hear and
customary 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 matters
lative 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 who
Moreover, like the Nigerian Supreme Court, the decisions of are appointed by the Yang di-Pertuan Agong, based on
the Federal Court are binding on every other court in the the recommendation of the Prime Minister, after
country. In Nigeria, the Chief Justice heads the Supreme consulting the Conference of Rulers. In Nigeria, the
Court. This is also the case in Malaysia, where the Chief President of Nigeria appoints the Court of Appeal
Justice heads the Federal Court. President, based on the recommendation of the
National Judicial Council, and subject to approval by
However, the composition of the Supreme Court is the Nigerian Senate. The other Court of Appeal
different from that of the Federal Court. Whereas the Federal Justices are appointed in a similar manner, but the
Court 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 High
Courts in Sabah and Sarawak, as well as seven other judges, However, as in Malaysia, a panel of three Justices
the 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 may
although these Justices are usually appointed from the High simultaneously sit in the Court of Appeal, this is not the
Courts and the Court of Appeal, the High Court Judges and case in Nigeria. Moreover, the Court of Appeal in
the Court of Appeal Justices do not simultaneously Nigeria, unlike its Malaysian counterpart, does not hold
constitute, or function as Justices of the Supreme Court. circuit sessions. Instead, it operates in ten judicial
divisions spread across the country, with as many as
Also, there are apparent variations in the method of judicial forty-nine Justices.
appointment in both jurisdictions. In Malaysia, all the
members of the Federal Court are appointed by the Yang In Malaysia, there are two High
di-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 High
recommendation 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 Judicial
approval by the Nigerian Senate. In both jurisdictions Council. The appointment of
however, the decision-making in the Supreme Court and in the Chief Judge requires, in
the Federal Court is by a simple majority. addition, the approval of the
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7. Page 7 Legal Cauldron
State House of Assembly. A single Judge presides over Sessions Court; the Court for
proceedings in the High Courts. This is identical to the Children,; and the
situation in Malaysia. The High Courts in both Penghulu’s Court, in the case
jurisdictions also have no jurisdiction over Syariah matters, of Peninsular Malaysia. In
which are handled by Syariah Court . Nigeria, the inferior courts
similarly include the
Like 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. The
more 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 for
is in addition to a Federal High Court, which handles the FCT, these courts are normally established under
matters 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 recommendation
Rulers. Special Courts similarly exist in Nigeria. They of the Chief Judge of that state. In Nigeria, a State
exercise limited court powers on special matters for which Governor similarly appoints the Magistrates, but on the
they are created. These courts include the National advice of the State Judicial Service Commission. There
Assembly Election Tribunals for the Federation, and are different grades of Magistrate’s Courts, which vary
Governorship and Legislative Houses Election Tribunals among the states. The Magistrate’s Courts in the 17
for each State of the federation. In addition, there is the Southern states of Nigeria exercise summary
Court Martial, and the National Industrial Court. As can jurisdictions in both civil and criminal matters. In the 19
be 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 are
the Federal Court, the Court of Appeal, the High Court The Juvenile Welfare Court
and the Special Court. In Nigeria, the Superior Courts similarly hears charges that are
include the Supreme Court; the Court of Appeal; the brought against children and
Federal High Court; the High Court of the FCT; the young people in a special, largely
Syariah Court of Appeal of the FCT; the Customary Court confidential setting. Some states
of Appeal of the FCT; the High Court of a State; the have their Children and Young
National Assembly Election Tribunal; and the Governor- Persons Law, and children are
ship 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 of
Subordinate 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
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The children and Young Persons Law
(Northern Nigeria Laws, 1963)
Legal Knowledge Management
defines 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 Introduction
years. In Malaysia, a “child” is,
however, defined differently as a In a nutshell Legal Knowledge
person 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 within
One can glean from this comparison documents and individuals’ minds.
that the legal systems of Nigeria and The term specifically includes the
Malaysia 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 streamline
However, there are considerable the delivery of service. This
similarities, as well. Indeed, it could be definition is quoted from the LKM
asserted that local variations aside, White Paper One entitled: “Legal
both systems are largely the same, with Knowledge Management A Holistic
a noticeable British influence. Thus, a Model” dated April 2003.
Malaysian lawyer, like Mr. Hari, who
suddenly 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 in
no doubt, find the legal landscape adopting LKM initiatives as part of their management milestone or overall
relatively familiar. The same goes for a management strategy. Perhaps this is because many within the Malaysian legal
Nigerian 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 shorter
Frank 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 work
pursuing his postgraduate degree in products do not go to waste or vanish with employees that leave the firm but are
law [LLM] with the National stored for the benefit of continuing members of the firm and also serves as a
University 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
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9. Page 9 Legal Cauldron
Management Departments with the hope of following This includes billing and collection targets as well as detailed
their foreign counterparts that have adopted LKM information on the actual revenue of the firm. The employees
initiatives. Although this trend is encouragable, the play a crucial role in the management of the firms’ clients and
mode and manner in which it is adopted locally may be this is not reserved or limited to a Partner or a lawyer. We
questionable? have taken such steps in JHJ to inculcate a common sense of
ownership to the firm and to prevent the isolation of
The LKM White Paper of 2003 indicates that most employees from the LKM initiatives. These steps help foster a
firms (the study did not cover firms in Malaysia since sharing environment where lawyers are more willing to work
LKM is still at its infancy in Malaysia) launch a together in teams and combine their knowledge for the
full-blown LKM initiative without a thorough benefit of the firm’s practice and its clients.
understanding of Knowledge Management theories and
how LKM will or should benefit We do not profess to be experts in the
the firm. These firms implementation of LKM, nevertheless JHJ
confine their Knowledge Manage- has taken some key initiatives to create
ment Department’s scope to and develop a knowledge sharing culture
conducting legal research and be- within the firm and these include:
lieve that by installing certain
software program and creating a (a) Ensuring relevant and pertinent infor-
designated server to store prece- mation regarding clients are copied to
dents will solve all the firm’s ills. all the employees of the firm to ensure
Frequently, when this approach is that everyone is kept in the loop and is
taken, employees are left isolated able to attend to the client in the
from the Knowledge Department absence of the person in charge [this is
and not provided adequate of course practiced with strict and due
training 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 main
stand the concept of LKM. Such practices are doomed
server) which is a central location in which legal work
for imminent failure. LKM is a synergistic concept that
product is accumulated, organized, and maintained;
must be adapted in all the various departments in the
firm, which includes finance, human resources, (c) Every employee is involved and aware of the actual
administration 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 cultural
change in the practice and management of legal services (d) Support staff’s are encouraged to mingle with the client’s
that must be embedded in and practiced by every support staff to create a better rapport between the firm
employee of the firm. It has to start with the basics and and its client at all levels [This enables the employee’s of
in 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.
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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 be
Knowledge sharing is an idea that must be embraced seen as a replacement to the human
through the appreciation and understanding of the element in LKM. Only a firm with an
benefits it can garner as opposed to a unilateral decision embedded knowledge sharing culture can find the embrace
by the management to force it onto its employees. As technology on a broad spectrum of their business and legal
such, LKM initiatives should never start of as a full-blown needs work to their benefit. Technological advances here
exercise 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 has
feature in a LKM initiative. The legal profession is syn- decided what data needs to be captured, the firm must
onymous to the business of selling knowledge. decide what hardware and software are needed to
implement the plan. The array of available legal
To facilitate a smooth storage of the firms knowledge, the technology packages is overwhelming. Some firms use a
firm is required to come up with a LKM plan which different application to handle each aspect of their KM
incorporates best practices that include standard needs. Others rely on one centralized product such as a case
operating procedures of the various departments (this management or matter management package, and utilize
comprises of steps that begin with the opening of a new add-on features as additional needs are realized. Employees
file to documents to be prepared and end with the are in a unique position to recommend or choose software
closure of the file) and an employee hand- applications since it is they that would be involved
book which regulates the conduct of em- in the day-to-day operations of the firm.
ployees from a human resource and
administration standpoint of the firm. Process management is accomplished with
These processes are forms of tools that must applications that keep track of tasks, dates and
be in place to ensure that the data and resource allocations. Office suites and case
resources the firm produces is not put to management programs usually come with a
waste but captured and catalogued and calendaring program or task manager adequate
stored for future use. for small firms or individual use. There also are
applications specifically used to manage projects
Having a framework on a series of steps it takes to from start to finish, including cost accounting, generating
complete a project or accomplish a goal is necessary to charts and reports on various aspects of the project, and the
ensure good organization and work quality. For instance creation of a generic timeline so future projects can be
in 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 flow
property and loan documentation which includes those chart or a sophisticated project management software
properties with or without title, title with restriction or a program, requires a complete understanding of the logistics
charge attached etc. Under this checklist all the steps of the process, the resources needed to complete the project
from the receipt of instructions to the final step of according to established deadlines, and the ability to plan for
perfecting the transfer of a property is covered. A general contingencies that might arise during the course of the
timeline is also provided in an excel spreadsheet as a form project.
Visit us at www.jhj.com.my

11. Page 11 Legal Cauldron
LKM 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 enhance
the quantity of work produced without sacrificing the • Selfish attitude – internal knowledge sharing must not
quality. be avoided. No single person can claim ownership over a
work product. It belongs to the firm and as such it as of
LKM: From Experience right available to every employee.
Experience has thought us in JHJ that • Assuming KM is about technology and let the IT
there are some factors that are department manage LKM initiatives;
apparent when it comes to making
LKM workable in our firm. These • Expecting that people will "make time" for LKM. Either
include: 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. This newsletter is produced by
our Knowledge Department.
Please feel free to contact the
Department at kd@jhj.com.my
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 LUMPUR
Website: www.jhj.com.my
Tel: 603-20-961478
Fax: 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