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2025 MarsdenLR 3828
INDUSTRIAL COURT KUALA LUMPUR
SYAFIQ HAMDI SHUSHILIL AZAM – Appellant
Versus
MALINDO AIRWAYS SDN BHD – Respondent
Award No: 646 of 2025 [Case No: 15(6)/4-1940/21]
Retrenchment is lawful if based on genuine redundancy and conducted fairly, with the employer bearing the burden of proof to demonstrate the necessity of such action.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal by retrenchment during COVID-19 pandemic - The Company justified the retrenchment based on severe financial hardship and redundancy of positions, supported by evidence of operational restructuring and adherence to the Last In First Out principle - The Claimant's position as Co-Pilot was deemed redundant due to a surplus of staff and reduced flight operations. (Paras 1, 5, 22, 117)
(B) Retrenchment - Genuine redundancy - The court found that the Claimant's dismissal was lawful as the Company demonstrated that the retrenchment was based on actual redundancy and was conducted fairly. (Paras 24, 32, 117)
(C) Procedural fairness - The Claimant's complaints regarding the lack of personal communication and absence of a Voluntary Separation Scheme were found unsubstantiated, as the Company had communicated the situation through memorandums and complied with legal obligations. (Paras 106, 112)
Facts of the case:
The Claimant was dismissed by the Company due to retrenchment stemming from financial difficulties caused by the COVID-19 pandemic, which resulted in a significant reduction of operations and staffing needs. The Claimant contended that his position was not genuinely redundant and that the retrenchment process was unfair. (Paras 5, 20, 21)
Findings of Court:
The Court held that the Company had proven the existence of genuine redundancy and that the retrenchment was carried out in accordance with established industrial law principles, dismissing the Claimant's claims. (Paras 117)
Issues: Whether the retrenchment was based on genuine redundancy, whether it was conducted fairly, and whether the Claimant's dismissal was lawful. (Paras 24, 117)
Ratio Decidendi: The Court emphasized that the employer bears the burden of proving redundancy and that the retrenchment process must adhere to principles of good faith and fairness, which the Company successfully demonstrated. (Paras 28, 117)
Result: Claimant's claim dismissed.
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA ") in respect of the dismissal of Syafiq Hamdi Bin Shushilil Azam ("the Claimant") by his employer, Malindo Airways Sdn Bhd ("the Company") on 1 November 2020.
B. Background
[2] The case was initially tried by the learned Chairman, Yang Arif Tuan Iznan Bin Ishak who had since retired from the Malaysian Public Services on 9 May 2023 and ceased to be the Chairman of the Industrial Court of Malaysia. Thereafter, I have taken over the conduct of this matter as the new Chairman of this Court and continued with the trial of this matter until its conclusion.
[3] I rely on the authority of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor ; ; [2011] 2 ILR 251; where the Court held that s 23(6) of Industrial Relations Act 1967 (" IRA ") allows another Chairman to continue hearing a part-heard case and the new Chairman can hand down award in such cases.
[4] Therefore, this award is written based on my reading, perusal and evaluation of the facts and evidence contained in the notes of proceedings prepared by the learned former Chairman, Yang Arif Tuan Iznan Bin Ishak and gleaned from the documents made available to me and the evidence adduced before me after I took over the conduct of this matter.
C. The Proceedings
[5] The Claimant in the present case was dismissed by the Company by way of retrenchment. The Company cited the COVID 19 pandemic and resulting financial hardship as the reasons for the Claimant's position becoming redundant, which ultimately led to his retrenchment.
[6] The Company commenced the case by calling the following persons as witnesses to give evidence in support of the Company's case against the Claimant:
(a) Andriaty Binti Abdul Rahman ("COW1") who was the Company's Head of Corporate Finance / Business Planning & Analysis / Project Management Office;
(b) Visvaratnam a/l Sabaratnam (COW2) who was the Company's General Manager for Customer Care (overseeing HR and legal departments); and
(c) Muzaffar Bin Mazlan ("COW3") who was the Company's General Manager of Human Resource at the material time. He had since left the Company at the time of the trial.
[7] Upon conclusion of the Company's case, the Claimant commenced h is case against the Company. The Claimant did not call any other witnesses to give evidence at the trial. Only the Claimant gave evidence at the trial in support of his case against the Company.
[8] The following cause papers and documents have been filed and/or marked as evidence before the Court and were referred to during the proceedings:
(a) The Claimant's Statement of Case dated 21 October 2021 ("the Statement of Case");
(b) The Company's Statement in Reply dated 23 November 2021 ("the Statement in Reply");
(c) The Claimant's Rejoinder dated 31 January 2022 ("the Rejoinder");
(d) The Company's Supplementary Bundle ("COB1B");
(e) The Company's Supplementary Bundle of Documents 2 ("COB2B");
(f) The Company's Supplementary Bundle of Documents 3 ("COB3B");
(g) The Company's Supplementary Bundle ("COB4B");
(h) The Claimant's Bundle of Documents ("CLB1 B");
(i) The Company's Witness Statement of Andriaty Binti Abdul Rahman ("COWS1B");
(j) The Company's Witness Statement of Visvaratnam a/l Sabaratnam ("COWS2B");
(k) The Company's Supplementary Witness Statement of Visvaratnam a/l Sabaratnam ["COWS2B(S)"];
(l) The Company's Witness Statement of Muzaffar Bin Mazlan ("COWS3"); and
(m) The Claimant's Witness Statement of Syafiq Hamdi Bin Shushilil Azam ("CLWS1 ").
D. Salient Facts
[9] The Company is a Malaysian-based airline, operating under the commercial name "Batik Air", formerly known as "Malindo Air". It operates as a hybrid airline, incorporating features of both full-service and low-cost carriers. The Company operates both domestic and international routes and is a subsidiary of the Indonesia-based Lion Air Group.
[10] The Claimant was
