A sole-proprietor juggles multiple roles ranging from a lawyer to an entrepreneur to a manager. Some of the operational challenges faced by a sole proprietor and the means to resolve them are as follows.  The challenge of navigating the regulatory requirements under the Legal Profession Act 1976, and the rules and regulations of the Bar Council.    The sole-proprietor must stay abreast and be updated with the regulatory changes. Subscribe to circulars and updates issued by the Bar. Attend Bar seminars  and briefings  on the  changes in the regulatory framework. Visit regularly the Bar websites.         Financial management is the next challenge. Consider subscribing or buying  accounting software tailored for law firms in order to streamline invoicing, systematic recording of earnings and tracking the expenses. Engaging a part-time accountant or bookkeeper ensures proper financial reporting and management.   Develop annual and monthly  budget so that expenses can be controlled and to avoid wastage and avoidable expenses.  Regular auditing of financial operations would help towards ensuring  efficiency of the firm’s financial management system. Client acquisition and retention is a serious challenge. The sole-proprietor must make his firm visible and stand-out in the company of the firms in town. Consider   a niche area of law in order to stand out and be more visible.  However, specialization in a narrow area of practice may not be advisable in a small town.  Use social media to showcase the firm’s standing,  area of focus and proficiency in that area.  A sole-proprietor often lacks infrastructural support. Leverage upon technology and Artificial Intelligence to manage this disadvantage.  Be inquisitive about apps  and softwares tailored for legal practice and small businesses. Collaborate with fellow sole-proprietors.  Find ways to work together.  R. JAYABALAN Messrs R. Jayabalan 

What is sexual harassment @ gangguan seksual? sec 2 Employment Act 1955 :  “sexual harassment means any unwanted conduct of sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.” (sebarang perlakuan yang tidak diinginkan yang bersifat seksual, sama ada lisan, bukan lisan, visual, isyarat atau fizikal, ditujukan kepada seseorang dimana ianya menyinggung perasaan atau memalukan atau mengancam kesejahteraannya, yang timbul dari dan semasa dia bekerja.) What are the types of sexual harassment?  “workplace”?  Refers to context, not location.  ‘Workplace’ is not confined to work premises or during working hours but includes harassment outside working time or premises, as long as it arose out of work relations and within workscope. E.g  Sexual harassment:  Examples:  Sexual harassment exists despite ‘consent’. Co-workers travelling in a car. Three male workers, victim most  junior female employee, co-worker feeling tired,  told victim he wanted to sleep, she said “tidurlah”. He slept on her lap. Court held there was sexual harassment as the ‘consent’ cannot be voluntary, victim being the most junior and only female would have felt constrained to agree to his request.   Using terms of endearment “sayang” , buying flowers on Valentine’s Day, gifts personal in nature e.g perfume is unacceptable  – shows the giver’s intention to be personal – sexual harassment.  Personal conduct that did not involve others can also be sexual harassment. Claimant in the presence of female employees, loosened belt, opened trouser zip, lowered pants for the purpose of re-tucking his shirt. Held as indecent conduct, sexual in nature.  Sexually suggestive statements though did not ‘invite’ recipient but refers to recipient’s conduct  with others also a sexual harassment. Victim asked for urgent  signature in a form, claimant’s reply: “kalau mahu malam ini dengan suami awak, malam ini juga suami awak bagi ke?”. Court held this was unacceptable, and sexual harassment.     Being cheeky and making “silly jokes”  – persistently calling for lunch, sending card with words e.g ‘darling’ and saying ‘love you’  – also sexual harassment.   What victims should do?   Object to the wrongful act. Show that the act was unwanted/unwelcomed. Record  the wrongful act.  Complaint to the employer. Do not delay. If employer fail to act, employee can leave and claim constructive dismissal. Make a police report. Victim may also file a civil claim for compensation  for tort of sexual harassment or assault/battery. Injunctions may be obtained against the harasser. Victim may sue the harasser and also the employer for breach of employer’s duty to provide a safe working place.  No witness? Its ok.  It does not matter that there was no witness who saw the harassment or that there was no corroboration. Absence of corroboration does not defeat a claim of sexual harassment. Why? A victim does not file a complaint of sexual harassment for the pleasure of it as she is  exposed to public ostracization and face anxiety at workplace and in public.  Furthermore, such conducts take place in private.   What employers must do? Provide a safe workplace for employees.  Have a formal policy on sexual harassment at workplace. Employer must provide protocol for complaints of sexual harassment. Reporting channels must be confidential as the offender might retaliate.When there is a complaint, employer must take steps to investigate and punish the harasser e.g suspension, dismissal  through due inquiry, punishment must be proportionate to the misconduct.  Warning to harassers  Sexual harassment at workplace is a ‘misconduct’ (salahlaku), employee can be dismissed.. Sexual harassment is an offence under the Penal Code  – police report, maybe charged in court e.g for molest, outraging modesty and other sexual offences. Civil suit for damages  – the victim may file, harasser to pay compensation, injunction maybe issued. R. Jayabalan Messrs R. Jayabalan

1. All persons are competent to testify. 2.Merely being a party to the suit does not make one an interested witness. 3. There must be proof that one is an interested witness – no speculation. 4. No legal presumption that an interested witness should not be believed. 5. No rule that evidence of interested witness must be rejected on that account alone. 6. Evidence of an interested witness requires corroboration in order to be relied upon. 7. Evidence of interested witness must be weighed in the face of the totality of the evidence and overall circumstances. 8. Evidence of interested witness can be relied upon if the evidence had a ring of truth in it. 9. Whilst the court must be cautious of evidence of interested witness, the court must not be suspicious of such evidence. 10. The court may accept the evidence of interested witness either in part or in whole – with proper justifications. See: Teoh Kiang Hong v. Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 2 AMR 381, FC. R. Jayabalan MESSRS R. JAYABALAN

Can the employee choose to disobey an instruction from the employer because he thinks the instruction was unreasonable or simply wrong? The short answer is ‘no’! The duty of obedience to employer’s instruction is fundamental to the employment contract. The employee must follow all lawful and reasonable instructions from the employer, even if he thinks the instruction is manifestly wrong. What if the employee thinks the instruction was unlawful? Well, the employee must comply first with the instruction and question it’s validity later. Why? well, if the employee is given the right to disobey an instruction that he thinks is illegal, it would be impossible for the management to maintain discipline at workplace, every employee will decide for themselves whether to follow an instruction or otherwise. That is not in the best interests of the business. Wilfull disobedience, defiance or insubordination is a serious misconduct that warrants summary dismissal. Beware. Don’t be too smart with the boss! 😁 See: Mohamad Syafiq v. Nityo Infotech Services (2025) 1 MELR 306. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan The use of witness statements have taken away substantial pressure and hurdle off the witnesses in presenting their evidence. A well thought out witness statement ensures that, theoretically atleast, the witness starts on a good footing. But the fate of the evidence in examination in chief mostly (very) hinges on how the witness performs in cross-examination and whether his evidence survives the onslaught of the cross. So what are the key precautions for a witness facing cross-examination? 1. Speak only to answer the question. Otherwise keep quiet, very quiet. 2. Speak up and speak out. Your voice must be heard and comprehensible – before it is understandable. 3. Only answer the question asked, nothing more, nothing less. Be economical (very) with words. 4. Be polite and courteous to the counsel and the judge. Do not argue with the counsel, don’t act smart (remember what they say: you can never win an argument with a lawyer!) 5. If you do not know the answer, say so. If you don’t remember, say so as well. If you need to refer a document, again, say so. 6. In answering don’t guess, presume or speculate. Stick to the facts (only). Don’t be emotional. 7. Answer the question honestly and truthfully. Think like a layman, don’t think like a lawyer, ever. 8. Don’t be pre-occupied thinking where the cousel is heading to. Don’t think a few steps ahead of the counsel. 9. Feel free to ask for the question to be repeated/explained. Take your time in answering but not too long, and certainly not too fast or too quick. 10. In answering a ‘yes’ or ‘no’ question, don’t worry, you can explain later in re-examination. Your counsel will know what to do. May the force (and often Karma!😁) be with you in court. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan Solicitors love to use the conjunction “and/or” in their pleadings and other cause papers. Mostly when they are unsure and so as to be cautious. How does the court look at this “and/or”? Well, interestingly, the court has referred to “and/or” as ‘bastard conjunction’. In Bonitto v. Fuerst Bros & Co Ltd [1944] 1 All ER 91 at 92, it was said this bastard conjunction has become the Commercial Court’s contribution to Basic English. The use of ‘bastard conjunction’ is to be discouraged and generally disapproved by writers on drafting. Why? Because the device “and/or” is an “embarrassing expression which endangers accuracy” – see Canberra Data Centres v. Vibe Constructions [2010] ALR, vol 266, 33 at 45, SC. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan Medical negligence claims have shown that aggravated damages may be awarded when the defendant’s conduct was high-handed or oppressive so as to increase the plaintiff’s mental anguish, anxiety and suffering. Additionally, aggaravated damages may also be awarded to show the court’s disapproval and contempt of the manner the defendant and his solicitors had conducted his defence in court e.g 1. Denying liability and prolonging trial when liability is clear from the outset. 2. Shifting the blame to the plaintiff during cross examination. 3. Unfair, uncalled for cross-examination. 4. Not disclosing documents or producing witnesses. 5. Tampering with the documents. 6. Being ‘economical with the truth’. This litigation oversight by the court is necessary so that litigation is conducted fairly and equitably notwithstanding the adversarial complexion. Hence defendants (and their solicitors) ought to be reasonable and equitable in staging their defence and playing out their strategy, failing which they must be prepared to pay the additional ‘price’ by way of aggaravated damages when the strategy is caught out in court. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan The new Minimum Wages Order 2024 [P.U.(A) 376/2024] that provides for minimum wage of RM1,700.00 was gazetted on 4th December 2024. The implementation would be as follows: 1. For employers with five employees or more AND employers falling within professional activities in theMalaysia Standard Classification of Occupations 2020 (regardless of number of employees) – the new wage would take effect from 1st February 2025. 2. Legal professionals and lawyers fall within the professional activities in the Malaysia Standard Classification of Occupations 2020. Hence the new minimum wages will apply to law firms from 1st February 2025. 3. On 1st August 2025 the minimum wage will apply to all employers regardless of number of employees. 4. The new minimum wage will apply to foreign workers as well; but it does not apply to domestics maids. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan The Ang Ming Lee Saga Ends. Re late delivery LAD claims by house purchasers against housing developers. Ever since the Federal Court decision in Ang Ming Lee in 2020, the issue that kept repeating itself was whether the decision was to be of prospective or retrospective effect. The primary view, and followed by the courts, was that any court decision is of retrospective effect unless directed otherwise viz. expressly directed to be of prospective effect only. In Ang Ming Lee the Federal Court did not make such specific direction of prospective effect, hence the decision was treated as of retrospective effect – following the general law. This then opened the door for purchasers whose SPA and LAD claim accrued before Ang Ming Lee to also take advantage of the Ang Ming Lee decision. Many of them did, and successfully. The complaint that followed was that Ang Ming Lee, with retrospective effect, allowed purchasers to attempt and receive a windfall in terms of LAD, hence grossly unfair to developers who had followed the law as it was at the time of the SPA, and as such the decision with retrospective effect badly affected the housing industry. Well, everything good must come to an end. The Federal Court has now decided that Ang Ming Lee in view of it’s special circumstances, effect and statutory implications ought not be read as of retrospective effect, and must be applied as of prospective effect. In short, LAD claims accruing before Ang Ming Lee cannot take advantage of the Ang Ming Lee effect. Done. Dusted. The Court also answered several other questions in respect HDA and late delivery claims including the limitation issue in such late delivery claims. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan COMMISSION PARTNER, SALARIED PARTNER AND ‘PARTNER’ IN LAW FIRMS. Law firms often appoint their young lawyers as ‘salaried partner’ or ‘commission partner’ but their name appears as ‘partner’ in the letterhead, firm profiles and namecard. This may be for marketing purposes e.g to secure panel work, or to commit young lawyers to stay with the firm. What is the legal liability of such salaried partner or commission partner? When a client suffers loss due to fraud or negligence of the firm, is the salaried partner jointly and severally liable with other partners? The High Court here addressed this very issue. Upon examining the Partnership Act, it was held that ‘partnership’ under the Act means sharing profit and loss of the business. Since the commission partner here was only paid a share of the fees collected by him and no share in the profit and loss of the firm, he is not a ‘partner’ under the Act and the ‘jointly and severally liable’ principle that binds partners as liable to third parties do not apply. In short, perhaps, a salaried partner or commission partner is nothing more than a glorified LA! This should be a relief to young lawyers who become salaried partner or commission partner at firms without full understanding of such designation. R. Jayabalan MESSRS R. JAYABALAN