Bhupindar Singh Gurcharan Singh Preet J:

JUDGMENT Introduction and Brief Facts

[1]Cha Poh Onn, the applicant, filed an application for judicial review to quash the Industrial Court’s award dated 23.3.2021. The Industrial Court found that the applicant’s termination was with just cause or excuse due to redundancy.

[2]The first respondent (Company) is involved in the production and sale of cement and cement-related products, including ready-mixed cement, in Peninsular Malaysia. The applicant was the Group Human Resource Manager of the Company with a monthly basic salary of RM13,670.00.

[3]On 25 October 2016, the Group Chief Executive Officer, Philip Ting, issued an email to internal departments stating that the current business conditions will be challenging and highly competitive, affecting not only business volume but also selling prices. The departments were instructed to undertake immediate measures to:

(a)lower the operating costs of the Company by reopening and re-negotiating on all the purchases of its raw material, quarry contractor costs, fuel expenses, chemical usage, and to further discuss with suppliers regarding costs of repairs and maintenance;

(b)improve organization structure and increase the Company’s plant efficiencies; and

(c)limit the Company’s approval for capital expenditure only to extremely important and urgent circumstances.

[4]Subsequently, on 8 December 2016, the Company announced and proposed a Voluntary Separation Scheme (VSS) to all employees, and 13 employees accepted the VSS. By 10 April 2017, the Company had ceased recruiting new employees and limited recruitment to production operators and/or unionised employees. Furthermore, new recruitment was allowed only on a replacement basis with prior management approval.

[5]The applicant, on behalf of the management, issued a memorandum dated 6 June 2017 to all employees regarding restructuring and reorganization. It stated that the Company had been operating at a loss over the last few months due to the slowdown in the property construction and cement industries, as well as the cancellation of construction projects. Therefore, the Company would reorganize and consolidate work areas or jobs to create a linear and more efficient organizational structure. Consequently, as at 24 July 2017, the Company had no alternative but to retrench 16 employees.

[6]The Company continued to suffer financially and for the 3^rd quarter of the financial year 2017, it reported an operating loss of RM3,397,000.00. According to the statements of comprehensive income for the financial year ended 31 December 2017, the Company recorded a total loss of RM4,654,000.00 before tax.

[7]The Company’s losses continued in 2018. Thus, the applicant was retrenched via a letter dated 22 November 2018, effective from 1 December 2018, as the management concluded that the applicant’s position was redundant and his services were no longer required.

The Law on Judicial Review

[8]The law on judicial review has been concisely described in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd , where Raus Sharif FCJ speaking for the Federal Court said:

“[15] ... Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroads into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunals may be reviewed on the grounds of “illegality”, “irrationality” and possibly “proportionality” which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds.

[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance e