Nik Hashim J:

[1] This is an application for an order of certiorari by Boey Sow Foong, the Applicant, to quash the Industrial Court's award No 48 of 1997 dated 29 January 1997, which held that the dismissal of the Applicant was with just cause and excuse on the ground of redundancy.

[2] The Applicant was employed by the Antah Drilling Sdn Bhd (the Respondent) as an Account Manager on 2 March 1993. She worked under the Finance Manager who was an expatriate. At the material time, the Respondent was in the business of providing off-shore drilling services to Esso Production Malaysia Incorporated. On 3 February 1994, the Applicant's services was terminated by the Respondent on the ground that her position was eliminated due to reduced level of activity and she was given one month notice vide letter dated 3 February 1994. At the time of termination, the Applicant was drawing a salary of RM4,000/- per month.

[3] The learned Chairman of the Industrial Court made the following findings at pp 10 to 12 of his award:

"The facts in the case before the Court established that the requirement for the Claimant's (Applicant's) service had diminished following the completion of the contract in February 1994. Even if the Company (Respondent) was to get a new contract there will not be any revenue until October 1994. As it turned out the Company (Respondent) did not get the new work. The Court would therefore hold there was no need for the services of the Claimant (Applicant) or in any event the requirement for her services has diminished. In law therefore there was redundancy and the Company (Respondent) therefore is entitled to economise by reducing labour costs. If the Company (Respondent) does so fairly following established principles the Court would not interfere with the Company's (Respondent's) managerial prerogative.

It is admitted the Company (Respondent) did not consult the Claimant (Applicant) or give her advance warning of the possibility of retrenchment. There is no legal requirement that the Company (Respondent) must do so. In fact one month's notice was given and the Court holds that this is fair in the circumstances of the case.

The obligation under s 23 of the Code for Industrial Harmony (the Code) to give priority of engagement/reengagement did not arise in this case as there was no evidence that the Company (Respondent) did engage or reengage employees after the retrenchment exercise.

On the question of mala fide and victimization by the Company (Respondent) there is no evidence at all led by the Claimant (Applicant). She admitted it was only her assumption that it was the Company's (Respondent's) policy to appoint a Malaysian to the post of Finance Manager eventually and the Company (Respondent) terminated her employment to prevent her from getting the Finance Manager's job. The Court cannot accept such assumption in lieu of evidence. The Claimant (Applicant) had only been employed for about one year whereas the Finance Manager is much more senior to her. So the principle "last in first out" had been observed.

Having held that the Claimant's (Applicant's) services was surplus to the requirement of the Company (Respondent) and that there was no mala fide and victimization on the part of the Company (Respondent) the Court would conclude that she was lawfully retrenched and her claim that she was dismissed without just cause must fail. Her claim is therefore dismissed."

[4] Before me Mr KL Wong for the Applicant argued that the Industrial Court's finding are against the weight of the evidence and hence [5] perverse, and the other argument is that the Industrial Court failed to consider s 23 of the Code.