The COVID-19 pandemic has shifted the norms of court proceedings towards remote hearings using virtual platforms. To facilitate this, the Industrial Court has issued Practice Note 1 of 2021 which outlines how hearings and trials can be carried out with remote technology.

This Practice Note is effective 1 February 2021 and is to be read together with:

  • Practice Direction 1 of 2019 (E-filing and E-Submission Systems); and
  • Industrial Court (Digital Recording of Proceedings) Rules 2015.

This article briefly explains the Industrial Court’s Practice Note 1 of 2021.

How do you apply for a case to be heard remotely or virtually?

  • A case may be heard remotely upon an application by a party, subject to approval by the Court
  • The application must be presented to the Court through letter or e-mail at least 14 days before the hearing date
  • A notice of approval will then be issued by the Industrial Court at least 7 days before the hearing, detailing the date, time and location where the hearing will take place
  • The Court may also on its own accord direct for a case to be heard remotely after considering the circumstances of the case, without the need for a formal application by the parties.

What preparation is required for the remote hearing?

  • Documents or pleadings must be filed by the parties through the e-filing system. Reference to documents which are not e-filed will not be allowed.
  • Under the Practice Direction 1 of 2021, the remote hearings are not “fully” virtual. Remote hearings will be conducted in a determined court, in the presence of a Chairman and an interpreter. If a witness is unable to be physically present in Court, they may give their evidence from a suitable location such as their office or home, subject to agreement by the parties.
  • In some circumstances, the Court may, at its discretion, allow a party who cannot be present in Court to attend the hearing at another location. This location must be decided and agreed upon by both disputing parties, or will be determined by the Court.
  • This is generally unlike the e-appellate system in the civil courts, where lawyers and the judges do not need to be present in Court and can conduct the virtual hearing from their respective homes or offices.

What is the platform used?

  • The platform and method used will be determined by the Court.
  • The current practice is for the use of the TrueConf system, although other systems may be adopted by the Court at its discretion.

How will the remote hearing be conducted?

  • All parties must be online a minimum of thirty (30) minutes before the scheduled hearing time to conduct a trial run.
  • The Court will send invitations to join the hearing through a pre-determined medium
  • The Court may call for a recess and re-invite the parties shortly after.
  • Each hearing session will be digitally recorded.
  • Parties must also ensure to comply with the ethical and procedural standards as though the hearing is conducted physically. For the most part, this involves behaving as though you are in a normal court setting, which includes but is not limited to the following conduct: –
    • Neat and proper attire.
    • Ensuring only invited parties are present in the hearing session.
    • Ensuring the position of the camera of utilized equipment is at eye-level.
    • Refrain from making any rude hand gestures or body language.
    • Face the camera throughout the duration of the hearing.
    • Only use one language per witness.
    • Only one party can speak at any one time.
    • Do not repeat questions/answers to save time.
    • Each question must be answered clearly, and not merely by nodding or shaking one’s hand.
    • Be present through the whole hearing and not leave proceedings without the permission of the Chairman.

COVID-19 has undoubtedly changed the landscape of court hearings in recent times. The Practice Note No. 1 of 2021 demonstrates the Industrial Court’s willingness to move with the times, and facilitates the conduct of remote hearings so that matters involving foreign witnesses can be concluded expeditiously.

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This article was written by Donovan Cheah with assistance from Chloe Tan (Intern). Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019, 2020 and 2021, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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