In the year 2001, the Company experienced a slow down in its business on account of a weak global demand for computers - desktops and notebooks - which the Company was manufacturing. This resulted in the Company and some of the other subsidiaries of NEC Computers International, a subsidiary of NEC Corp. Japan, to take cost cutting measure and to undergo retrenchment exercises. The Company's memo dated 7 August 2001 (GOB1 p 4) from Wim Giezenaar of NEC Computers Asia Pacific outlining the measures of the Company to be implemented had been addressed to all staff in Asia Pacific. For the Company in Malaysia, the retrenchment exercise was kept to the minimum involving only 3 out of 245 employees. The Claimant who was in the Material Department and the other 2 employees each from the Human Resource Department and Engineering Department respectively were the 3 retrenched. Claimant wais the Senior Material Planner of the Commodity Section which was a supportive: section to supplement the other two sections i.e. the Desktop and the Notebook Sections and her responsibility was to source and purchase hard disk and reader cards for these two sections. When sale was bad, the Company was of the view that the Claimant's tasks could be performed by the Desktop and the Notebook Sections themselves and there was no need to have the separate Commodity Section to source and purchase parts for these two sections. Among the 3 Senior Material Planners in the 3 sections, the Claimant was the most junior and applying the Last In First Out (LIFO) principle, the Claimant was accordingly terminated. A letter of termination dated 31 August 2001 (GOB 1 p1-3) was issued to the Claimant to take effect on the same date with a total payment of RM20,063.59 - the breakdown figures are as shown in GOB1 p 3 - which included termination benefit of RM12,240.00, having been paid to the Claimant.

By a Table for Total Sales Units By Product 1999-2001, COB 2 p13, the Company has shown that there is a decrease in the sales of the desktops (from 95248 units to 68404 units) and notebooks (from 40634 units to 38255 units) in the year 2001 as compared to the year 2000, a drop of 21.44% in total. The profit of the Company for financial year 2002 covering the duration from 01.04.2001 to 31.03.2002 as shown in its Income Statement For the Year ended 31 March 2002, COB2 p16, indicates a drastic drop in its profit after taxation from RM17,325,247 in 2001 to RM4,083,114 in 2002 which is 76.5% decline.

The Claimant had been given the opportunity to apply for the then existing vacancy as Business Specialist in the Marketing Department of the Company which the other 2 employees involved in the retrenchment exercise also applied. The Head of the Marketing Department, after considering all the applications, had chosen one other than the Claimant basing on the candidate's fluency in the English language and her personality which befitted the said position. The other 2 positions available were the Technical Support Executive which required technical knowledge and a diploma or degree in computing or computer/engineering related discipline which the Claimant did not possess. Hence the Claimant was not offered or asked to apply for this post.

Issues

The main issue before this Court is whether the Company in exercising its prerogative to reorganize or restructure its business thereby retrenching some of its employees, in particular the Claimant, was acting bona fide and not capriciously or with motives of victimization or unfa