Y.A. DATO' NIK HASHIM BIN NIK AB. RAHMAN, J.

Application

This is an application for an order of certiorari by Stephen Bong, the Applicant, to quash the Industrial Court's award No. 596 of 1997 dated 16 December 1997 which held that the termination of the Applicant's service with the Respondent company was with just cause and excuse on the ground of redundancy.

Background of Case

The Applicant was at the material time employed as Executive Director of the FCB (Malaysia) Sdn. Bhd., the Respondent company. By a letter dated 9 October 1995, the Applicant was retrenched by the Company with three months' salary in lieu of notice. The letter reads:

"Dear Stephen

RETRENCHMENT

Our discussion pertaining to the above refers. [3] ;

We wish to advise that from the review of the operation of the Company and its current and future manpower requirements, we have established that there is a need to downsize the Company's operation. This is attributable to the fact that the Company's business is soft and depressed and to aggravate the situation, we have lost some sizeable accounts. As a result of the review, the Management regretfully wishes to inform you that your position within the Company has become redundant.

In accordance with your Contract of Employment we now give you three (3) months notice of termination of your services. To enable you to seek alternative employment, the Management had decided to waive the notice period and shall pay you three (3) months salary in lieu of the three (3) months notice period. Your last day of service shall be 9 October 1995.

In addition, you will be paid for all outstanding leave.

.............................................................

.............................................................

Yours faithfully,

(sd)

Russel Walter

Managing Director"[4]

Pursuant to representations by the Applicant, his dismissal was referred to the Industrial Court under section 20(3) of the Industrial Relations Act 1967 (the Act). In the Industrial Court, the Applicant called two (2) witnesses including himself while the Respondent company called three (3) witnesses. The Industrial Court upheld the retrenchment of the Applicant and dismissed the Applicant's claim.

The Industrial Court's Award

In his award, the learned Chairman of the Industrial Court at p. 334 of record held:

"Consequently, it is the finding of this Court based on equity and good conscience, that the Company's retrenchment exercise affecting the Claimant (Applicant), was a bona fide exercise of its prerogative rights to downsize and reorganise its business caused by the "soft and depressed market" to which "the loss of some sizeable accounts of the Company had aggravated the situation" causing the retrenchment of the twenty-six workers. [5] ;

There was no evidence that the Claimant (Applicant) was wrongfully dismissed without just cause or excuse. He was rightfully retrenched for just cause: redundancy."

Contentions of the Applicant

Before me, Mr. Vincent Chandran for the Applicant, submitted only on one ground that the award is unreasonable and perverse in view of the evidence before the Industrial Court. He argued that the Applicant was not redundant as there were works to be done in respect of new accounts, and counsel relied on Kwan Fatt's evidence to support his argument. Kwan Fatt (COW-2), who was the Applicant's subordinate prior to the Applicant's dismissal, said in his testimony at p. 27 of enclosure 6:

"I was held responsible of those accounts after Claimant (Applicant) was in charge as supervisor for the Group of Accounts. After Claimant (Applicant) left I had to do the supervision of that group."[6]

Counsel further argued that the Applicant, being senior to Kwan Fatt, was asked to go and this was in breach of LIFO (last in first out) principle.

Contention of the Respondent Company

Mr. N. Sivabalah for the Company on the other hand, submitted that there is no basis for the application as there is more than ample evidence to s