By AZIZAM AZIZAN

NAVIGATING THE PROCESS OF CHANGING COMPANY SECRETARY

The Board of Directors has the authority to remove a Company Secretary from his or her position. The board of directors has the ability to appoint a company secretary, it also has the jurisdiction to remove the secretary. This can be accomplished through either a board resolution or a board meeting. In Malaysia, the board of directors has the authority to remove a company secretary. However, it is critical to follow the rules outlined in the company‘s constitution. There are two ways to remove a company secretary technically. In the first occurrence, the board of directors requests that the corporate secretary resign. The second alternative is to remove the company secretary via a board resolution.

Resignation of a Company Secretary
Subsection 237(1) of the Companies Act 2016 outlines that a company secretary has the right to resign from their position by providing notice to the board of directors of the company. Additionally, paragraph 237(3)(a) specifies that the resignation becomes effective after a period of thirty days from the date when the notice is lodged, or in accordance with the time frame mentioned in the company’s constitution or terms of appointment. In a different scenario, as stated in subsection 237(2) of the Companies Act 2016, if it is impossible to communicate with any of the directors at their last known residential address, the company secretary has the option to inform the Registrar about this situation, along with their intention to resign. As per paragraph 237(3)(b), following this notification to the Registrar as per subsection (2), the company secretary will cease to hold the position of secretary of the company after a period of thirty days from the date of the notice submitted to the Registrar. 

Resignation Procedures
If a secretary resigned in accordance with section 237(1) by providing notice to the Board of Directors, he may lodge a copy of the notice, along with a declaration with the Registrar if he believes that his resignation should not be communicated to the Registrar. Depending on the circumstances, the company secretary will no longer hold the position of secretary within the company under the following conditions:

(a) When the time frame specified in the company‘s constitution comes to an end.

(b) When the notification period, as outlined in the terms of the secretary‘s appointment, concludes, resulting in the conclusion of their term of office.


(c) After a duration of thirty days from the date on which the notice was submitted to the Board of Directors, as indicated in accordance with the provisions of section 237(1) of the Companies Act. In essence, the company secretary‘s position will cease based on the expiration of the constitution–specified period, the term specified in their appointment terms, or the thirty–day duration from the notice presented to the Board of Directors according to section 237(1). Once the secretary‘s role within the company comes to an end, they are no longer authorized to submit any documents on behalf of either the company or its directors.

 
The Board of Directors holds the authority to conclude the secretary‘s term of service earlier than the specified notice period, provided such an arrangement is mutually agreed upon by the secretary. This can be achieved by submitting a notification to the Registrar in accordance with section 58 and Section 46(3) of the Companies Act 2016. In cases where the departing secretary is the sole individual in the secretary role, the appointment of a new secretary must be completed within a span of thirty days starting from the point when the secretary‘s position becomes vacant. This is in accordance with the requirement outlined in section 240 of the Companies Act 2016. If no updates have been made by the company in compliance with section 58 of the Companies Act 2016, the secretary‘s name will continue to be listed in the register and displayed in the company‘s corporate profile. Nevertheless, if the secretary has lodged a copy of the resignation notice with the Registrar, this information will be accessible to anyone upon payment of the stipulated fee.
 
Notice to the Registrar
If a situation arises where communication with any of the company‘s directors becomes impossible, a secretary has the option to step down as per subsection 237(2) of the Companies Act 2016. This can be achieved by notifying the Registrar about the inability to establish communication with the directors and expressing the secretary‘s intention to resign from their position. The notice submitted must include substantiating proof indicating the inability to communicate with any of the directors. This evidence could include documents showing returned correspondence directed to the directors. Upon submission of the notice to the Registrar, a secretary resigning under subsection 237(2) will witness the resignation taking effect after a period of thirty days from the date when the notice was lodged. At the end of this thirty–day period, the position of secretary will become vacant.
 
Removal of a Company Secretary
As per section 239 of the Companies Act, the board holds the authority to terminate a company secretary‘s position via a board resolution, adhering to the stipulations outlined in either the terms of appointment or the company‘s constitution.

Appointment of Company Secretary
Secretaries must be appointed within 30 days from the company’s incorporation date. The person to be appointed as the company secretary must consent in writing to be appointed as the secretary. The Companies Act requires that every company have at least one company secretary, but more than one secretary is allowed.
New company secretary need to fill in form Section 236(3) Declaration by a person before appointment as secretary to Registrar. The person that appoint as secretary must to fulfill criteria and qualified under section 235(2) and he is not disqualified under section 238.

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