The failure of the Industrial Court to determine the redundancy issue, despite evidence presented, constitutes a jurisdictional error justifying review.

[1] This is an application by the applicant for an order for certiorari to quash the Award of the Industrial Court dated 24 March 2009 wherein the learned Chairman held that the 1st respondent was constructively dismissed by the applicant and awarded a total sum of RM252,000 as back wages and compensation in lieu of reinstatement.

Background Facts

[2] The 1st respondent was employed by the applicant (company) as a Senior Manager, Security & Risk Management vide a Letter of Offer dated 16 August 1999. He was responsible for all aspects of security and risk management throughout Malaysia. He was later promoted to the position of General Manager of Facilities, Security & Risk Management effective 1 July 2001. Due to reorganization exercise in the company, the position of the 1st respondent's became redundant. The company issued a letter dated 3 June 2002, signed by the General Manager, Human Resource on behalf of the Managing Director of the company, informing him that his position will be redundant and his services will no longer be required with effect from 3 June 2002.

[3] He was offered an alternative position as a Security of Facilities Manager-Kuala Lumpur with the same salary and benefits he currently enjoyed. He was requested to report for duty in his new position on 10 June 2002. The 1st respondent orally indicated that he was not interested in the position.

[4] When the 1st respondent did not confirm the acceptance of the new position on 10 June 2002, the company wrote another letter dated 3 July 2002 to him stating that his last day of service will be 10 July 2002 and regard that letter as a formal notice of termination. Not only the 1st respondent did not respond at all to the company's two letters, but he also did not report for duty as required by the company. Instead he walked out of the company and lodged a complaint with the Industrial Relations Department, claiming constructive dismissal.

Grounds Of Application

[5] The grounds on which the relief was sought by the applicant's company are contained in a statement filed pursuant to O 53 r 3(2) of the High Rules 1980. Briefly, the complaint of the company was that the Industrial Court had erred in law and jurisdiction as follows:

1. In not making a ruling on the issue of redundancy.

2. In making findings that no reasonable person or body in a similar circumstance would have made.

3. In awarding compensation which was contrary to established principles of law.

4. The learned Chairman of the Industrial Court who handed down the award was not the Chairman who heard the case.

The Issue

[6] The issue to be determined by this Court is whether the 1st respondent was constructively dismissed or was it a case of redundancy.

Function Of Review Court

[7] It is an established law that a Court in exercising its judicial review can only interfere with the findings of the Industrial Court if it can be shown to the satisfaction of the Court that the findings were unreasonable in the sense that no reasonable person or body of person could have reached them - Quah Swee Khoon v. Sime Darby Bhd , 2001 MarsdenLR 1500 ; Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal; 1995 MarsdenLR 1088 ; [1995] 3 CLJ 344 ; [1995] 2 AMR 2145 .

Should The Case Be Heard Denovo?

[8] Before I proceeded to examine the merits in this application, I must first address the issue of the award being handed down by a chairperson who did not hear the case. The chairperson who sat throughout the trial was Yeoh Wee Siam (as she then was). But the award was handed down by Dato' Mary Shakila Azariah.

[9] Mr Jeevaratnam, learned counsel for the applicant submi