Eva Khasirah Abdul Rahman

730 [2024] 1 MELR

v. Airfoil Services Sdn Bhd

EVA KHASIRAH ABDUL RAHMAN

v.
AIRFOIL SERVICES SDN BHD

Industrial Court, Kuala Lumpur

Syed Noh Said Nazir @ Syed Nadzir
Award No: 2020 of 2023 [Case No: 21/4-2812/20]
2 October 2023

Dismissal: Redundancy — Retrenchment — Whether retrenchment was Bona fide —

Whether the claimant was genuinely redundant — Whether there was unfair labour
practice — Whether termination of contract was with just cause or excuse

The Claimant had commenced her employment with the Company on a fixed
term basis, starting 4 February 2015 until 29 February 2016, as a Section
Manager, Human Resource. On 22 February 2016, the Claimant’s fixed-term
employment was converted into a regular employment starting 1 March 2016.
The Company’s nature of business depended on the global airline and aviation
industry as the Company was in the business of maintaining and repairing
airfoils, which are major components in aircraft engines. The Company
serviced all major civil aircraft engine types and only serviced global customers.
Due to the Covid-19 Pandemic and the movement control order which was
implemented all around the world worldwide flights were down by 80% (by
April 2020). With the grounding of a significant number of flights worldwide,
it meant that none of those aircrafts would require servicing, for, what was
known then, an indefinite period of time. Aircraft components which required
servicing, would not be flown out to the Company for servicing or repair as
airlines rushed to conserve cash flow due to the uncertainty of the situation
caused by the grounding. The Company implemented cost cutting measures
that included freezing all existing investments and delaying all new investments
to 2021, freezing recruitment of new employees, freezing of all company events,
reducing training and travelling, reducing the inventory level, freezing overtime,
and freezing the KPI bonus scheme. Despite the cost cutting measures taken in
March 2020 and April 2020, the Company’s continued forecast was bleak and
it was forecasted that the Company would still run out of cash by March 2021.
Additionally, the Company experienced a reduction in workload by more than
50% and, according to its forecast, there was little hope that this situation would
improve in 2021. Hence, it became imperative for the Company to look into
further cost-cutting measures to sustain its cash flow at least until the end of
2021 where possible recovery was anticipated to begin. As a last resort effort,
the Company looked into conducting a retrenchment exercise. The Claimant
was retrenched with retrenchment benefits. The Claimant then proceeded to
bring a claim for unjust dismissal against the Company claiming that she was
dismissed without just cause or excuse as she was on maternity leave when the
Company had chosen to affect the termination on 1 June 2020. The Claimant
contended that the retrenchment was in a most hurried and inhumane manner
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 731
v. Airfoil Services Sdn Bhd

devoid of respect for dignity and compassion. The Company on the other hand
contended that the retrenchment was with just cause or excuse.

Held (dismissing the Claimant’s claim):

(1) In the effort to streamline its workforce, the Company had to retrench
a total of 203 employees. This meant that apart from the Claimant, 202
other employees were also identified to be a surplus and redundant. In the
Human Resource Department itself, apart from the Claimant who was part
of the middle management, the Company also retrenched two others. Her
retrenchment came at the time when she was on maternity leave. Since she
was selected for retrenchment prior to her taking maternity leave, there were
no grounds for the Court to interfere. The Claimant was not retrenched empty
handed. She was paid retrenchment benefits, notice in lieu and others like
leave encashment, 2019 performance bonus, and “Maternity benefits”, total
amounting to RM107,948.11. As such, the Court was satisfied that the Claimant
was never intended to be singled out in particular for the retrenchment exercise
as everyone’s position in the Company was subjected to evaluation based on
the Company’s needs. (paras 77, 81 & 82)

(2) The Company was entitled to retain certain employees to carry out the
critical functions of the Company’s business. The Company had the prerogative
to reorganise and restructure as well as to execute retrenchment exercise for its
financial and operational sustainability at the time the Company was faced
with adverse and negative effects of the Covid-19 pandemic, the Movement
Control Order and the SOP imposed by the Government. The reduction in
operational costs was not sufficient to maintain both financial and operational
sustainability, forcing the Company to reorganise its business further. As such
the claimant’s employment together with others were terminated by reason of
redundancy. (paras 85, 90 & 96)

Case(s) referred to:

Arkitek Akiprima Sdn Bhd v. Liang Slew Fatt & Anor [2002] 1 MELR 46 (refd)
Badariah Shahrudin v. Mudra Resources Sdn Bhd [2022] MELRU 658 (refd)
Bayer (M) Sdn Bhd v. Ng Hong Pau [1999] 1 MELR 7; [1999] 1 MLRA 453 (refd)
Carry All Motors v. Peninngton [1980] IRLR 455; [1980] ICR 806 (refd)
Equant Intergration Services Sdn Bhd (In Liquidation) v. Wong Wai Hung [2012]
MLRAU 591 (refd)
Firex Sdn Bhd v. Cik Ng Shoo Waa [1990] 1 MELR 327 (refd)
George Kent (M) Sdn Bhd v. Tan Tai Wai, Mak Kin Kung & Wong Khoon Sang [1988]
3 MELR 502 (refd)
Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 MLRA 415 (refd)
Gurbux Singh Prabha Singh v. J Whyte & Co (M) Sdn Bhd [1981] 1 MELR 478 (refd)
Ipoh City & Country Club Berhad v. Mohd Khurshaid Ramjan Din [2006] 2 MELR
384 (refd)
 Eva Khasirah Abdul Rahman
732 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

Prabakaran E Tharrumah v. JLW Management Services Sdn Bhd [2018] MELRU 52

(refd)
Shahirman Sahalan & Ors v. Natseven TV Sdn Bhd & Ors [2010] 1 MLRH 862 (refd)
Stamford Executive Centre v. Dharsini Ganesan [1985] 2 MELR 245 (refd)
Sutton v. Revlon Overseas Corp Ltd [1973] IRLR 173 (refd)
Syamaizar Azmi v. Central Sugars Refinery Sdn Bhd [2020] MELRU 531 (refd)
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1
MELR 4; [2002] 1 MLRA 188 (refd)
Tham Chee Ark & Anor v. Santomas Sdn Bhd [2015] MELRU 1165 (refd)
Tham Chee Ark & Mohammad Rafi Abd Halim v. Mahkamah Perusahaan Pulau
Pinang & Santomas Sdn Bhd [2017] 2 MELR 100 (refd)
Thomas Hans Raab v. Nokia Services And Network Malaysia Sdn Bhd [2022] 3
MELR 301 (refd)
Tuan Syed Hashim Tuan Long v. Esso Production Malaysia Inc [1997] 5 MLRH 654
(refd)
Vithylingam Letchumanan v. Ice Room Food & Beverage Management Sdn Bhd [2015]
MELRU 1269 (refd)
William Jacks & Co (M) Bhd v. S Balasingam [1996] 1 MELR 312; [1996] 2 MLRA
678 (refd)
Woo Vain Chan v. Malayawata Steel Bhd [2013] MELRU 007 (refd)
Woo Vain Chan v. Malayawata Steel Bhd [2016] 3 MELR 531; [2016] 4 MLRA 79
(refd)
Yusoff Othman v. Felda Engineering Services Sdn Bhd [2022] MELRU 778 (refd)

Legislation referred to:

Industrial Relations Act 1967, ss 20(3), 30(5)

Others referred to:

“The Supreme Court on Industrial Law”, 2nd edn, p 424

Counsel:
For the claimant: Munjit Singh; Malaysian Trades Union Congress
For the company: Edward Andrew Saw Keat Leong (Megan Choo Wen Shin with him);
M/s Josephine, L K Chow & Co

AWARD

Syed Noh Said Nazir @ Syed Nadzir:

Reference

[1] This is a reference dated 19 November 2020 made by the Honorable

Minister under s 20(3) of the IRA 1967 (”the Act”) arising out of the dismissal
of EVA KHASIRAH BINTI ABDUL RAHMAN (hereinafter referred to as
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 733
v. Airfoil Services Sdn Bhd

“the Claimant”) by AIRFOIL SERVICES Sdn Bhd (hereinafter referred to as

“the Company”) on 1 June 2020.
Introduction
The Company
[2] The Company is in the business of maintaining and repairing Airfoils for
High Pressure Compressors (HPC) and Low-Pressure Turbines (LPT) which
are all major components in aircraft engines. The Company’s portfolio includes
all major civil aircraft engine types and it services global customers only.
The Claimant
[3] The Claimant had commenced her employment with the Company on a
fixed-term basis, starting 4 February 2015 until 29 February 2016, as a Section
Manager — Human Resource/L9 with a basic monthly salary of RM8,500.00
per month. [Refer: pp 1 to 6 of CLB-1 (Claimant’s Fixed-Term Contract for
Employment dated 20 January 2015)] 2. On 22 February 2016, the Claimant’s
fixed-term employment was converted into a regular employment starting
1 March 2016. The Claimant’s basic monthly salary was later increased
to RM10,633.00. [Refer: i. Page 7 of CLB-1 (Claimant’s Contract for
Employment dated 22 February 2016); and ii. Page 10 of CLB-1 (Claimant’s
Salary Adjustment dated 20 January 2020)].
[4] The Claimant reported to her superior ie Head of Human Resource
Department, Ms Yap Mei Fong and the claimant’s duties and functions are as
follows:
• Overseeing including hands-on where necessary matters relating
to the compensation and benefits, payroll management, hiring
executive and management personnel,
• Managing expatriate employees, employee and employer relations,
performance and rewards, department report and budget,
• Represent the company for any industrial or employment related
dispute or cases at Industrial Relations Department or Labour
Court and on all general Human Resources Management or
employees relations functions including office administration’
[5] For clarity, misconduct prior to retrenchment is not an issue; in that it
is undisputed that the Claimant has worked for the Company without any
complaints.
Salient Facts
Movement Control Order (MCO) Which Took Effect On 18 March 2020
[6] In late 2019, the Coronavirus (Covid-19) outbreak in Wuhan, China,
had spread through many cities in China and had simultaneously expanded
 Eva Khasirah Abdul Rahman
734 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

globally at an unprecedented pace. As nations began clamping down on both

domestic and international travel in their attempts to contain the pandemic, no
other industry was consequently hit as hard as the aviation industry. Suddenly,
airlines and their aircrafts were virtually grounded outside the US and Asia
domestic markets. Airlines saw their business volume decline drastically. By
April 2020, worldwide flights were down by 80% with a corresponding drop in
passenger revenue of approximately USD314 Billion.

[7] In the beginning of January 2020, many airlines were burning cash with
the median airline only having enough cash to stay alive for 2 months. Airlines
were severely cash-strapped as a result and the forecast for any early recovery
from these circumstances looked unlikely. [Refer: pp 32 to 61 (specifically pp
35, 36 and 39) of COB-1 (Presentation Slides on the COVID-19 Impact Update
dated 22 May 2020)].

Covid-19 Pandemic And MCO Direct Impact On The Company

[8] Needless to say, the bleak and unfavourable global circumstances for airlines
had a knock down effect on the business volume of the Company which shrank
drastically as a consequence. With the grounding of a significant number of
aircrafts worldwide, this meant that none of the aircrafts required servicing for,
what was known then, an indefinite period of time. Aircraft components which
required servicing could not be flown out to the Company for either repair or
servicing as airline rushed to conserve cashflow due to the uncertainty of the
situation caused by the grounding. Consequently, the Company saw a drastic
drop in business volume in early 2020 and a corresponding drop in its revenue.
[Refer: pp 32 to 61 (p 41) of COB-1 (Presentation Slides on the COVID-19
Impact Update dated 22 May 2020)].

[9] On 18 March 2020, in its efforts to contain the spread of the pandemic,
the Malaysian Government implemented the Movement Control Order
(MCO) which took effect until 4 May 2020. This compounded matters for the
Company as overheads continued to be incurred notwithstanding its inability
to operate. The Company was however, allowed to resume operations from
9 April 2020 after obtaining permission from the Ministry of International
Trade and Industry (MITI) albeit that only 50% of the workforce was allowed
to attend the workplace. The rest of the employees who could work from home
continued to do so.

[10] It is emphasized that as early as February 2020 the Company’s Human

Resource Department began developing strategies to minimize the risk to the
Company and to sustain the Company’s cash flow to ensure its survival. These
strategies were finalized in March 2020 and between March 2020 and April
2020 the Company implemented cost cutting measures that included freezing
all existing investments and delaying all new investments to 2021, freezing
recruitment of new employees, freezing of all company events, reducing
training and travelling, reducing the inventory level, freezing overtime, and
freezing the KPI bonus scheme.
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 735
v. Airfoil Services Sdn Bhd

[11] The Claimant was copied in the email correspondence and was involved
in all meetings that discussed these cost cutting measures that were taken. It is
the company’s position that the Claimant therefore had full knowledge of the
same.
Refer:
i. Pages 32 to 61 (specifically p 43) of COB-1 (Presentation Slides on the
COVID-19 Impact Update dated 22 May 2020);
ii. Pages 1 to 2 of COB-1 (Email Correspondence titled HR Manpower
actions sent by Yap Mei Fong to the Claimant on 23 March 2020); and
iii. Pages 3 to 8 of COB-1 (Email Correspondence titled HR Strategies
During Downturn and its attachment sent by Yap Mei Fong to the
Claimant on 23 March 2020)
[12] It is highlighted that despite the cost cutting measures taken in March
2020 and April 2020, the Company’s continued forecast was bleak and it
was forecasted that the Company will still run out of cash by March 2021.
Additionally, the Company experienced a reduction in workload by more
than 50% and, according to its forecast, there was little hope that this situation
would improve in 2021.
[13] Hence, it became imperative for the Company to look into further cost-
cutting measures to sustain its cash flow at least until the end of 2021 where
possible recovery was anticipated to begin. As a last resort effort, the Company
looked into conducting a retrenchment exercise whereby the Company’s
Human Resource Department began strategizing on the retrenchment exercise
to be undertaken. The Claimant was at all material times involved in this
exercise and was copied the initial draft slides that were supposed to be used
to advise the Company’s management on the intended retrenchment exercise.
[Refer:
i. Pages 32 to 61 (specifically pp 41 and 44) of COB-1 (Presentation
Slides on the COVID-19 Impact Update dated 22 May 2020);
ii. Pages 10 to 20 of COB-1 (Slides for Retrenchment Benefits and
Information dated 23 April 2023); and
iii. Page 9 of COB-1 (Email Correspondence titled Retrenchment Benefits
& Info (step by step-HR) and its attachment sent by Yap Mei Fong to
Lee Chui Hiong and copied to the Claimant)]
[14] Subsequently, sometime in April 2020, the Claimant’s superior, Senior
Human Resource Manager, Ms Yap Mei Fong, finalized the slides and had
then proceeded to advise the management of the Company on the intended
retrenchment exercise. [Refer: pp 21 to 31 of COB-1 (Finalized Slides on
Retrenchment Benefits and Information dated 23 April 2020).
 Eva Khasirah Abdul Rahman
736 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

[15] The retrenchment exercise includes that involving the claimant; in which
respect, the company maintains was done bona fide and in the circumstances,
with just cause or excuse. The company prays for the claimant’s case be
dismissed.

Claimant’s Submission

[16] The Claimant primarily disputes the ground of her dismissal ie redundancy.
According to the Claimant, the Company’s witnesses did not show any
evidence as to how the Claimant was selected in the retrenchment exercise.
The Claimant maintains that she has a good track record and her retrenchment
is not bona. The Claimant avers that it was a premediated attempt to get rid of
the Claimant under the guise of redundancy.

[17] The Claimant submitted that the Company had failed to give any
notification prior to her dismissal. She contends that the retrenchment is
unjustified wherein her job is still in existence and as such the actions of the
Company has caused trauma and has damaged her livelihood.

[18] The Claimant also pleads that in the purported retrenchment exercise,
the Company had failed to comply with the prerequisite legal process amongst
others the Code of Conduct for Industrial Harmony. The Code of Conduct
has laid down the principles and guide lines for compliance by employers on
the fair labour practices when retrenchment was necessary. That amongst the
salient principles in the Code, when considering retrenchment it is inter alia
pertinent that the employer should apply the principle of “last in ~ first out”,
offering or retaining employee by retraining for alternate job position etc. The
Company is also inter alia required to protract the retrenchment by applying
various methods; but had failed to exercise such as cost cutting exercises as
in allowances, reduction of employee benefits or other cost cutting that was
appropriate and negotiable with the employees, voluntary separation scheme
etc.

[19] The Claimant claimed that the Company was obliged to offer her an
alternate job/functions, retrain for other skills etc but this was not done.
Further, the Company had chosen to speed up the retrenchment without any
urgency. The Claimant submits that she was on maternity leave from 5 May
2020 and had delivered her second child through caesarean section on 5 May
2020. Following the surgery, she was recuperating from the surgery and was
under emotional stress when she received a call (on 1 June 2020) from the
Company’s CEO and from her superior (COWS-1) informing the Claimant
that she was being retrenched and that she is required to come to the office to
collect the termination letter and to return the Company’s properties that were
in the Claimant’s possession.

[20] The Claimant had protested her termination by signing off the termination
letter with a notation “under protest” signifying that she was not accepting the
termination and would challenge the basis for the termination. The Claimant
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 737
v. Airfoil Services Sdn Bhd

was on maternity leave until 17 July 2020 but the Company had chosen to
affect the termination on 1 June 2020 in a most hurried and inhumane manner
devoid of respect for dignity and compassion which under those circumstances
had left the Claimant helpless and worthless.

Company Breached The Code Of Conduct By Creating Two New Positions

And Defying “Last In First Out “LIFO”

[21] It is contended that in the said retrenchment exercise, only involved two
managerial employees (the Claimant from HR and another from EHS) in
Job level 9. Prior to the retrenchment exercise, the headcount in Company’s
management and executive personnel (from Job level 11 to Job level 6) were 27
headcount. After the retrenchment exercise, the Company had maintained 25
headcounts respectively. (Please see COB-2). Hence, all others in the positions
in Job level 11 to Job level 6 were retained on the Company’s payroll. The
Company had also created new positions for 2 managerial employees (one
from Procurement and another from CIP) who were less than 1 year in service.
Those 2 employees were moved from the Job Level 9 to Job level 8.

[22] The Claimant contends that whilst 98% managerial personnel were
retained, the Company claimed to have reduced up to 50% of the production
workload and had reduced 40% manning overall. The Claimant alleges that this
material disparity does not equate to a justifiable and fair retrenchment exercise
but give much room for debate and leans towards illegality, unfair labour
practice, selective discrimination, victimization and bad faith. Furthermore
the Company did not attempt to renegotiate a revised salary package and/or
position with revised job scope. The Claimant also claimed that the Company
could have considered, as in its planned strategy, to offer a retraining for job
skills in other departments.

[23] The Claimant pleads that all her core job functions had never ceased to
exist or diminished to the point that her job functions no longer exist. Therefore
her legitimate right for her job and livelihood is the basis for her representations
for reinstatement under s 20 of the IR Act 1967. She claims her dismissal on
the pretext of retrenchment was tainted with mala fide, made in bad faith, was
unlawful and without just cause or excuse.

Company’s Case

[24] As the MCO ventured into its third extension from 29 April 2020 to 12
May 2020, the Claimant commenced her maternity leave from 5 May 2020
to 17 July 2020. On 13 May 2020, the MCO ended, and the Conditional
Movement Control Order (”CMCO”) came into effect. Nonetheless, since the
Company was able to be fully operational again, an emergency meeting was
held between the Company’s top management and the heads of department
(HOD) and Section Managers, to brief them on the Company’s plans to carry
out a retrenchment exercise. Since the Claimant was still on maternity leave,
the Claimant’s superior had attempted to contact the Claimant on 14 May
 Eva Khasirah Abdul Rahman
738 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

2020 to update her on the emergency meeting. After several attempts, due to
the Claimant being unwell, it was only on 20 May 2020 that the Claimant’s
superior managed to call the Claimant and inform her about the emergency
meeting that took place on 13 May 2020.

[25] On 22 May 2020 and due to social distancing requirements, several

rounds of meetings were held in turn with groups of employees where they
were fully briefed and informed on the COVID-19 situation and its impact
on the Company’s business. The Company had also briefed its employees
on all previous cost cutting measures taken which were insufficient and that
there was no other alternative but to resort to conduct a retrenchment exercise
to secure the Company’s future commercial viability. No names have been
disclosed yet at this point. [Refer: pp 32 to 61 of COB-1 (Presentation Slides on
the COVID-19 Impact Update dated 22 May 2020)].

[26] As part of the selection process, the Company had to decide whether
the Claimant’s position as Section Manager — Human Resource was still
necessary or whether it was redundant and/or surplus to its requirements. This
was notwithstanding the fact that the Claimant was on maternity leave since 5
May 2020. In view of the fact that the Claimant’s superior was able to perform
the functions of the Claimant as Section Manager — Human Resource and
it was sufficient for the HOD to manage all remaining 7 employees within
the Human Resource Department, the Company took the view that the
Claimant’s position was redundant and surplus to its requirements. Moreover,
the Claimant was the only Section Manager within the Human Resource
Department while the other position of Section Manager — Training (also
within the Human Resource Department) was vacant even prior to the MCO.
Nonetheless, the Company had also determined that the position of Section
Manager — Training, even if filled, would have been declared redundant as
part of the same retrenchment exercise.

[27] Accordingly, on 1 June 2020, the Company had given the Claimant
notice that her position in the Company was redundant and a surplus to the
Company’s requirements. It is emphasized that the Company had made a total
payment of RM107,948.11 in retrenchment benefits to the Claimant. [Refer:
pp 62 to 64 of COB-1 (Retrenchment Notice and Retrenchment Benefit Details
dated 1 June 2020)].

[28] Other than the Claimant, as part of the same retrenchment exercise, the
Company had also retrenched a total of 203 employees from the Company’s
original workforce total of 570 employees. This includes a total of 5 employees,
7 including the Claimant, out of the original 13 employees within the Human
Resource Department. The Company is of the position that it had treated the
Claimant fairly in the sense that the Claimant was able to build up her career in
the Company by her attaining promotions and salary increments in the course
of her employment.
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 739
v. Airfoil Services Sdn Bhd

Pleadings, Witnesses’ Statements, Bundles Of Documents And Other Cause

Papers

[29] The cause papers filed by the Company and the Claimant in respect of this
matter are as follows:

(a) The Claimant’s Statement of Case dated 16 February 2021

(”Claimant’s Statement of Case”).

(b) The Company’s Amended Statement In Reply dated 23 March

2022 (”Company’s Amended Statement In Reply”).

(c) The Claimant’s Rejoinder dated 16 March 2021 (”Claimant’s

Rejoinder”).

[30] The Witnesses who gave evidence on behalf of the Company during the
trial are as follows:

(a) Yap Mei Fong — Senior Human Resource Manager (COW 1) of

the Company, whose Witness Statement was marked as COWS-1.

(b) Lee Chui Hiong — Chief Financial Officer (COW 2) of the

Company, whose Witness Statement was marked as COWS-2.

(c) The Claimant gave evidence as the sole witness for her case. Her
Witness Statement was marked as CLWS-1.

[31] The documents and/or exhibits that were adduced by the Company and
the Claimant respectively are as follows:

(a) The Company Bundle of Documents — marked as COB-1.

(b) The Company’s Loose Documents — marked as COB-2.

(c) The Company’s Financial Statements For The Year Ended 31

December 2019 — marked as COB-3.

(d) The Company’s Financial Statements For The Year Ended 31

December 2020 — marked as COB-4.

(e) The Company’s Financial Statements For The Year Ended 31

December 2021 — marked as COB-5.

(f) The Company’s Loose Documents — marked as COB-6.

(g) The Claimant’s Bundle of Documents — marked as CLB-1.

(h) The Claimant’s Supplementary Bundle of Documents — marked

as CLB-2.

(i) The Claimant’s Job Application — marked as CLB-3.

 Eva Khasirah Abdul Rahman
740 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

[32] The case was heard on 21 September 2022, 14 March 2023, 16 March
2023 and 21 March 2023. Upon the completion of evidence by both parties,
this Court had directed the filings of the Written Submissions which were duly
complied with by the claimant and the company.

Role Of Industrial Court

[33] The role of the Industrial Court has been lucidly explained by His Lordship
Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in a Federal
Court Case of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 MLRA 415 at p
136 as follows:
“Where representations are made and are referred to the Industrial Court for
enquiry, it is the duty of the Court to determine whether the termination or
dismissal is with or without just cause or excuse. If the employer chooses to
give a reason or excuse for the action taken by him, the duty of the Industrial
Court will be to enquire whether that reason or excuse has or has not been
made out. If it finds as a fact that it has not been proven, then the inevitable
conclusion must be that the termination or dismissal was without just cause
or excuse. The proper enquiry of the Court is the reason advanced by the
employer, and that Court or the High Court cannot go into another reason not
relied on by the employer, or find one for him.”

Burden Of Proof

[34] The burden of proving that the employee is guilty of the allegation of
misconduct or redundancy as the case may be and establishing the reasons
for dismissal rests squarely upon the employer. This was aptly stated by the
Industrial Court Chairman in Stamford Executive Centre v. Dharsini Ganesan
[1985] 2 MELR 245 as follows:
“16. It may further be emphasised here that in a dismissal case the employer
must produce convincing evidence that the workman committed the offence
or offences the workman is alleged to have committed for which he has been
dismissed. The burden of proof lies on the employer. He must prove the
workman guilty, and it is not the workman who must prove himself not guilty.
This is so basic a principle of industrial jurisprudence that no employer is
expected to come to this Court in ignorance of it.”

Standard Of Proof

[35] The standard of proof applicable to dismissal cases is the civil standard
of proof on a balance of probabilities as decided by the Court of Appeal in
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1
MELR 4; [2002] 1 MLRA 188 as follows:
“Thus, we can see that the preponderant view is that the Industrial Court, when
hearing a claim of unjust dismissal, even where the ground is oneof dishonest
act, including “theft”, is not required to be satisfied beyond reasonable doubt
that the employee has “committed the offence”, as in a criminal prosecution...
In our view the passage quoted from Administrative Law by H W R Wade &
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 741
v. Airfoil Services Sdn Bhd

C F Forsyth offers the clearest statement on the standard of proof required,

that is the civil standard based on balance of probabilities, which is flexible,
so that the degree of probability required is proportionate to the nature and
gravity of the issue.”

Law On Redundancy And Retrenchment

[36] The right to organize a business or a Company’s structure is a managerial

prerogative as has been firmly established in William Jacks & Co (M) Bhd v. S.
Balasingam [1996] 1 MELR 312; [1996] 2 MLRA 678 wherein the Court of
Appeal had defined “retrenchment” as follows:
“...Retrenchment has been defined as the discharge of surplus labour or staff
by an employer for any reason whatsoever otherwise than as a punishment
inflicted by way of disciplinary action. Whether the retrenchment exercises in
a particular case is bona fide or otherwise, is a question of fact and of degree
depending for its resolution upon the peculiar facts and circumstances of each
case. It is well-settled that an employer is entitled to organise his business in
the manner he considers best. So long as that managerial power is exercised
bona fide, the decision is immune from examination even by the Industrial
Court. However, the Industrial Court is empowered, and indeed duty-bound,
to investigate the facts and circumstances of a particular case to determine
whether that exercise of power was in fact bona fide.”

[37] In Malaysian industrial jurisprudence, the concept of redundancy as

propounded by Dr Dunston Ayudurai in Industrial Relations in Malaysia: Law
and Practice (3rd edition) is of utmost persuasive source for the Courts and
was quoted with approval in numerous decisions by the Industrial Court; inter
alia in Prabakaran E Tharrumah v. JLW Management Services Sdn Bhd [2018]
MELRU 52; Tham Chee Ark & Anor v. Santomas Sdn Bhd [2015] MELRU 1165;
Vithylingam Letchumanan v. Ice Room Food & Beverage Management Sdn Bhd [2015]
MELRU 1269.

[38] The learned author had further in his book referred to above, written on
redundancy as follows:
“Redundancy refers to a surplus of labour and is normally the result of
reorganisation of the business of an employer, and its usual consequence is
retrenchment, ie the termination by the employer of those employees found
to be surplus to his requirements after the reorganisation. Thus, there must
first be redundancy or surplus of labour before there can be retrenchment or
termination of the surplus.”

[39] In Firex Sdn Bhd v. Cik Ng Shoo Waa [1990] 1 MELR 327 Learned Chairman
Steve LK Shim (as His Lordship then was) observed as follows:

“... It is well established that it is for management to decide the strength of

its staff which it considers necessary for efficiency in its undertaking. The
Court will not intervene unless it is shown that the decision was capricious
or without reason or was mala fide or was actuated by victimization or unfair
labour practice. These principles have been consistently applied by the
 Eva Khasirah Abdul Rahman
742 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

Industrial Court in numerous cases ... the employer has a right to determine
the volume of his labour force consistent with his business and organisation
and if the implementation of a reorganising scheme adopted for reasons of
economy and better management of the business, the services of some of the
employees become excess of the requirement of the business, the employer is
entitled to discharge such excess.”

[40] Industrial Court has further developed its jurisprudence on the law of
retrenchment or redundancy. In the case of Arkitek Akiprima Sdn Bhd v. Liang
Slew Fatt & Anor [2002] 1 MELR 46 it was held by the Industrial Court that the
following matters need to be considered when retrenching an employee on the
ground of redundancy:

“Basing on the settled principles pertaining to retrenchment, therefore

the issues before the Court is whether there existed circumstances which
justified the retrenchment exercise taken by the Company and whether
the Company has acted bone fide in retrenching the claimants. The need
to have these issues taken into consideration has been propounded by
Soonavala in “The Supreme Court on Industrial Law” Vol. II, second
edition. In the said book, the author at p 424 wrote as follows:

Therefore, when a Company gives notice of retrenchment to its

workman and the dispute arising therefrom is referred for adjudication
to a tribunal, the only questions for its decisions are:

a) Whether the retrenchment was justified by the circumstances ofthe

case,

b) Whether the grounds for the retrenchment given by employer are

true, that is, whether there had in fact occurred a reduction in the
business of the Company due to circumstances such as scarcity of
raw material on the availability of which the running of the factory
depends or stoppage of work under the orders of the Government,
or changes in economy, which made it impossible to continue the
business except at a loss or on meagre profits; and

c) Whether the order of retrenchment was motivated by bad faithand

a desire to victimise or harass the workman whom for someulterior
reasons the employer wanted to discharge or dismiss”.

[Emphasis Added]

[41] In Woo Vain Chan v. Malayawata Steel Bhd (now known as Ann Joo Steel Bhd)
[2013] MELRU 007, Learned Industrial Court Chairman Tay Lee Ly referred
to and quoted with approval, Soonavala’s, “The Supreme Court on Industrial
Law”, 2nd edn at p 424, the learned author DS Chopra laid down three issues
to be decided by the Court on whether a case of retrenchment had been made
out and whether the Company had acted bona fide, which can be summarised
as follows:
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 743
v. Airfoil Services Sdn Bhd

(a) whether the retrenchment was justified by the circumstances of the case;

(b) whether the grounds for the retrenchment given by the employer were
true, namely that is whether there had in fact occurred reduction in the
business of the Company; and

(c) whether the order of retrenchment was motivated by bad faith and a
desire to victimise or harass the workman or for some ulterior reasons the
employer had wanted to discharge or dismiss the employee.”

[42] It is important to note that the Industrial Court’s decision in Woo Vain
Chan (Supra) was upheld by the Court of Appeal. It was decided in Woo Vain
Chan v. Malayawata Steel Bhd [2016] 3 MELR 531; [2016] 4 MLRA 79 by the
Court of Appeal as follows:

“It is essential that it is the job functions and duties that are affected
and not merely the job title or designation. If the same or essentially
same work is found to be carried out under a different name or
manner, there is no redundancy...” (See “the Law on Dismissal”
by Nallini Pathmanathan, Siva Kumar Kanagasabi and Selvamalar
Alagaratnam).

[43] In this case, the respondent therefore had the burden to prove on the
balance of probabilities that the case for redundancy was made out so as to
justify the dismissal of the appellant from its employment. Otherwise, it would
tantamount to unfair labour practice, thereby rendering the dismissal invalid
without lawful excuse.

[44] The burden is on the employer to come to the Court with concrete proof
to establish that the employee is actually redundant, that he is discharged as
surplus to the Company’s requirement. There must be actual redundancy
before a dismissal premised on the ground of redundancy could be grounded.
Merely by showing that the Company was undergoing restructuring exercise
will not suffice. In order to bite it must be further exhibited through evidence
that the exercise had impacted on the job function in such a manner that “it
was reduced to such an extent that he was considered redundant”.

[45] In other words, the exercise had rendered the employee a surplus to the
manpower requirement of the Company. If such a situation is successfully
borne out by the evidence as led before the Court, then an employee so affected
could be validly retrenched or his services terminated on that ground. (See the
case of Bayer (M) Sdn Bhd v. Ng Hong Pau [1999] 1 MELR 7; [1999] 1 MLRA
453). In determining dismissal based on redundancy, the Court is entitled to
look at the bona fide of the said move by the Company.

[46] In Ipoh City & Country Club Berhad v. Mohd Khurshaid Ramjan Din [2006] 2
MELR 384 the Industrial Court held as follows:
“The facts of this case show a classic example of the Company using the
excuse of a purported redundancy to dismiss the Claimant with impunity.
 Eva Khasirah Abdul Rahman
744 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

The Company cannot use the excuse of outsourcing its security services by
way of reorganisation to render the Claimant’s services redundant. This was
inequitable and doing a disservice to the Claimant and the other security
guards whose means of livelihood were snuffed out suddenly and without any
warning or indication. Nonetheless based on the circumstances of the case,
I have to find that the method the Company had used to cut costs as testified
by COW1 (”It was cheaper to engage the new security guards. Costs were cut
by 20 to 30%”) was unconscionable by its act of terminating the employment
of the entire in-house security force and to thus conclude that the Claimant’s
retrenchment was not bona fide. There was no proof of any real redundancy
on which the dismissal was grounded. The same security services were still
required by the Company but under the guise of outsourcing at the expense
of the Claimant’s employment.”

[47] Insofar as the Code of Conduct for Industrial Harmony 1975 is

concerned, guidance is found in Gurbux Singh Prabha Singh v. J Whyte & Co
(M) Sdn Bhd [1981] 1 MELR 478 wherein it was held that in the exercise of
that power to terminate the services of redundant employees, the management
must, when selecting employees to be retrenched not only act reasonably but
also observe any customary arrangement or code of conduct. The code of
conduct referred to in this case is the Code of Conduct for Industrial Harmony
1975. This code was endorsed in February 1975 by the Malayan Council
for Employer Organisations (representing employers) and Malaysian Trades
Union Congress representing employees and was witnessed by the Minister
of Human Resources. The purpose of the Code is to promote sound industrial
relations practice in Malaysia and to lay down principles and guidelines to
employers and employees on the practice of industrial relations for achieving
greater industrial harmony.

Issues

[48] Guided by the above authorities and precedents, this Court is of the view
that the only questions for consideration in this case are:

a. Whether the retrenchment was justified by the circumstances of

the case;

b. Whether the grounds for the retrenchment given by employer are

true, that is, whether there had in fact occurred a reduction in the
business of the Company due to circumstances such as scarcity
of raw material on the availability of which the running of the
factory depends or stoppage of work under the orders of the
Government, or changes in economy, which made it impossible
to continue the business except at a loss or on meagre profits; and

c. Whether the Company has acted bone fide in retrenching the

Claimant the order of retrenchment was motivated by bad faith
and a desire to victimize or harass the workman whom for some
ulterior reasons the employer wanted to discharge or dismiss.
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 745
v. Airfoil Services Sdn Bhd

Court’s Evaluation And Decision

Whether The Retrenchment Exercise Justified

[49] In this Court’s considered views, both witnesses for the company, COW1
and COW2 had testified in detailed multiple circumstances which ultimately
led the Company to make the dire decision to carry out the retrenchment
exercise. The contributing circumstances could be identified as follows:

1) Company’s Nature Of Business & Customer Base

[50] It is undisputed that the Company’s nature of business depended on

the global airline and aviation industry as the Company is in the business
of maintaining and repairing Airfoils for HPC and LPT, which are major
components in aircraft engines. The Company services all major civil aircraft
engine types and currently, only services global customers. [Refer: i. Q&A 7 of
COWS-1 (Witness Statement — Yap Mei Fong); and ii. Q&A 5 of COWS-2
(Witness Statement — Lee Chui Hiong)].

[51] The Company’s main customers are their shareholders (ie. MTU and
LHT), both of which are located in Germany. Other main worldwide customers
of the Company are Aero Norway from Norway, MTU Zhu Hai from China,
American Airlines from the United States of America, Turbine Services &
Solutions Aerospace from Abu Dhabi, Jalux from Japan, and many more.
[Refer: Q&A 8 of COWS-1 (Witness Statement — Yap Mei Fong)]

2) Covid-19 And Its Impact

[52] It is generally acceptable that although the Covid-19 pandemic had not
hit the Malaysian shores until early 2020, for the Company, the impact of the
pandemic was felt as early as late 2019 with the Covid-19 outbreak starting
in Wuhan, China. With this outbreak, the world began grappling to contain
the spread of the virus and nations began clamping down on air travel which
gradually escalated the closure of international borders. Suddenly, airlines and
aircrafts were virtually grounded outside the United States and Asia domestic
markets.

[53] By April 2020, worldwide flights were down by 80% with a corresponding
drop in passenger revenue of approximately USD314 billion. [Refer: i. Q&A 9
of COWS-1 (Witness Statement — Yap Mei Fong); ii. Q&A 8(a) of COWS-2
(Witness Statement — Lee Chui Hiong); and iii. Pages 35 and 36 of COB-1
(Presentation Slides on the COVID-19 Impact Update dated 22 May 2020)].
With the grounding of a significant number of flights worldwide, this meant
that none of those aircrafts would require servicing, for, what was known then,
an indefinite period of time. Aircraft components which did require servicing,
could not be flown out to the Company for servicing or repair as airlines
rushed to conserve cash flow due to the uncertainty of the situation caused by
the grounding.
 Eva Khasirah Abdul Rahman
746 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

[54] The situation reflected a significant reduction in the volume of business

and work to be done by the Company and this impacted the Company’s revenue
and cash flow. [Refer: i. Q&A 9 of COWS-1 (Witness Statement — Yap Mei
Fong); and ii. Q&A 8(b) of COWS-2 (Witness Statement — Lee Chui Hiong)].
It is pertinent to note that by the beginning of January 2020, many airlines
were burning cash with a median airline having only enough cash to stay alive
for 2 months. Many of the Company’s customers were severely cash strapped
and the Company did not know at the time if their customers’ situations would
recover, and if so, how long it would take to recover.

[55] This Court accepts that in the circumstances, it became imperative for the
Company to brace and prepare itself for the challenging times ahead to sustain
itself and remain viable by the end of this situation. [Refer: Q&A 10 of COWS-
1 (Witness Statement — Yap Mei Fong)]. At the time, the Company’s forecast
for workload for the entire 2020 was 234,000 parts as compared to 531,000
parts in the previous year of 2019. Additionally, the Company forecasted that
the workload would have a slow recovery in 2021 for about 312,000 parts.
[Refer: i. Q&A 8(c) of COWS-2 (Witness Statement — Lee Chui Hiong); and
ii. Page 42 of COB-1 (Presentation Slides on the COVID-19 Impact Update
dated 22 May 2020)]

3) Cost-Cutting Measures Taken Had Minimal Impact

[56] In order to brave the situation, HR Department had therefore begun

developing cost-cutting strategies to minimize the risk to the Company and
to sustain the Company’s cash flow to ensure its survival. MCO came on 18
March 2020 with the predicament that industries; including the Company was
not allowed to operate until 9 April 2020 where even then, it was only allowed
to operate at 50% capacity. Nevertheless, cost-cutting strategies were discussed
by the Human Resource Department and subsequently the Company’s
management finalized the cost-cutting measures to be taken in March 2020
and April 2020 to maintain and secure the Company’s short-term and future
cash flow. [Refer: i. Q&A 10 to 13 of COWS-1 (Witness Statement — Yap
Mei Fong); ii. Q&A 8(d) of COWS-2 (Witness Statement — Lee Chui Hiong);
iii. Pages 3 to 7 of COB-1 (Email Correspondence for HR Strategies during
Downturn and the Slides); and iv. Page 43 of COB-1 (Presentation Slides on
the COVID-19 Impact Update dated 22 May 2020)].

4) Evidence Of COW-2

[57] During cross-examination, COW 2 had clarified that due to the Covid-19
situation, the Company was only able to forecast up to year 2021 for “short-
term”. Despite the measures implemented for cost-cutting which included,
inter alia, freezing the recruitment of new employees, delaying bonus payments
which were supposed to be paid in April 2020, freezing quarterly KPI bonus,
reducing inventory level, freezing overtime, reducing training and travelling,
freezing and delaying new investments to 2021, freezing all company events,
and temporarily freezing certain employee welfares like milk distribution,
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 747
v. Airfoil Services Sdn Bhd

newspaper subscription and fruit baskets for hospitalized employees, the

Company’s forecast for the rest of 2020 was still very bleak.

[Refer: i. Q&A 13 of COWS-1 (Witness Statement — Yap Mei Fong);

ii. Q&A 8(d) of COWS-2 (Witness Statement — Lee Chui Hiong);

iii. Pages 3 to 7 of COB-1 (Email Correspondence for HR Strategies

during Downturn and the Slides; and

iv. Page 43 and 44 of COB-1 (Presentation Slides on the COVID-19

Impact Update dated 22 May 2020)].

[58] COW 2 was cross examined on why the Company did not carry out some
cost cutting measures like pay reduction across the board. In her explanation,
COW 2 had given evidence as follows: “COW 2: So we looked into a lot
of aspect, we also looked into that. As I mentioned, if you looked into the
document, the COB 1, p 42 and also, in p 44, 45, we have to come out with
the forecast on the cash flow and we know that if we are doing nothing, our
cash would go into negative. The Company would not be survived. Company
would be closed down and that means we have to retrench all the 500 people or
600 people have no work. So we look into it and we look into like, what would
be the best impacting the cash flow that can make the Company survive and
if we were just reducing the salary by 5%, 10%, the impact is so small, but it
would it just drag the Company into even more worse situations because, by
looking on the workload in COB-1 in the month, there is no really workload
I have in the shop. I would have 600 people sitting in the shop, doing nothing,
but by deducting 5%, that just cost me even more costs on that. So that’s why
we have evaluate that and this option is not the best option so we have said
No I think is, then we go for the retrenchment and also on top of that, if you
look on the document that we show here, we have retrenched around 200, I
can’t remember the exact number, 200 of the people. In fact, if you follow the
presentation I have- we have put in here, p 42, we have to retrench more than
that and we have already take into consideration not to retrench so many and
we keep more manpower than we required.”

[Refer: i. CRT Recording on 14 March 2023 (Day 2) at [Link] —

[Link];

ii. Pages 42, 44 and 45 of COB-1 (Presentation Slides on the

COVID- 19 Impact Update dated 22 May 2020)]

[59] This Court had considered and accepts COW 2’s evidence in the aforesaid
that the Company was in a dire situation where the number of employees
superseded the workload available in the Company. Given that, even after
considering some cost cutting measures like pay reduction, the Company
found that such cost-cutting measure had minimal impact on the Company’s
circumstances.
 Eva Khasirah Abdul Rahman
748 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

5) Customer Warranty Claim And Payment Due To Be Paid By The Company

[60] In her submission, the claimant contended that the company was in
the luxury of having funds that came about from substantial loans in 2020
and disputed the needs for retrenchments. The company explained that albeit
having the cost cutting measures in place, the Company forecasted that its cash
flow position would go into the negative by around March 2021 if no further
steps were taken to protect the Company’ position. To make things worse, the
Company was at that material point time facing a warranty claim to the tune
of RM100 million to be paid out as a result of faulty parts delivered in 2018.

[Refer: i.Q&A 14 of COWS-1 (Witness Statement — Yap Mei Fong);

ii.Q&A 8(d) of COWS-2 (Witness Statement — Lee Chui Hiong);

and

[Link] 44 of COB-1 (Presentation Slides on the COVID-19 Impact

Update dated 22 May 2020)]

[61] During cross-examination, COW 2 had even explained further on the

payment due for the warranty claim in the year 2020:

Munjit: If you look at your case, you were telling us during your first
time on your evidence that if you look at the loan at COB 6, right? You
look at year 2020, alright, then you have got loan of RM10 million in
January, February, going straight up to December. Alright, and then
you also have cash in hand alright? What was the necessity to have
such a high loan when you already retrenched employees?

COW2: Okay, first we have warranty claim from customer which

was in process that we have not settled with the customer so we
would need to reserve the cash because that is — you can find in
the audited account the provision of warranty claims if you look on
the in year 2020, in p 39. In year 2020, we have a warranty. If you
look at the last one, number 12, trade and other payables, non-trade,
provisions for claims RM44.7 million. So, these are the warranty
claims we have with the customer. So we need to withdraw the loan
because at that point, as I mentioned, because of the pandemic, all
the banker as well is very cautious. And we have a certain time to
withdraw the loan. So that’s why we make the decision, on the safe
side we need to withdraw the loan and we still at the point also it
was expected that the claim with the customer should be settled by
the end of 2020. So we would need the cash. So that is the reason
why we are withdrawing the bank loan and if you would look on the
COB-1, just now you have mentioned that these are not in page- in
p 44. And these are the forecasted cash in hand because if we have
to pay the customer warranty still, without taking any actions, we
will be then burning cash on every month and down to negative
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 749
v. Airfoil Services Sdn Bhd

in 2021. Okay and in p 45, we are showing here even though we

taking the actions in March and April, that is the action that I have
mentioned earlier, restricted, no overtime, no working on the day
off, we stopped the recruitment of the new employees, even though
with all that actions, we are still not really seeing the impact because
it is too minimum and it was still giving us the cash problem at the
end of 2021 and that is why we need to take more drastic actions,
which is coming to retrenchment.

[Refer: i. CRT Recording on 16 March 2023 (Day 3) at [Link] —

[Link];

ii. Page 39 of COB-4 (Company’s Financial Statements for

the Year ended 31 December 2020); and

iii. Pages 44 and 45 of COB-1 (Presentation Slides on the

COVID-19 Impact Update dated 22 May 2020)]

6) Workforce Needed v Forecasted Workload

[62] The company has shown that it is imperative to sustain its cash flow at
least until the end of 2021 when recovery was expected. As such, in late April
2020, the Company began looking into its manpower requirements in an effort
to streamline its requirements. As such, the Company began looking into
conducting a retrenchment exercise in an effort to streamline its workforce in
anticipation of the low workload.

[Refer: i. Q&A 15 of COWS-1 (Witness Statement — Yap Mei Fong);

ii. Q&A 8(e) of COWS-2 (Witness Statement — Lee Chui Hiong);

and

iii. Page 45 of COB-1 (Presentation Slides on the COVID-19 Impact

Update dated 22 May 2020)]

[63] Despite the forecast given at the time, COW 2 testified that the Company’s
actual cash position by the end of December 2021 was not as good as forecasted.
It was RM30 million. By that time, the Company had already paid out RM55
million on the warranty claim mentioned earlier, with another RM45 million
still pending. If that RM45 million had to be paid out in December 2021, then
the Company would have been forced to seek for financial support through
external loans to meet its contractual obligations. [Refer: Q&A 8(e) of COWS-
2 (Witness Statement — Lee Chui Hiong)]

Claimant Was Involved And Made Aware In The Retrenchment Exercise

[64] It is pertinent to note that the Claimant was involved in the discussions
on the proposed retrenchment exercise and the preparation of the information
slides for the proposed retrenchment exercise which was subsequently sent by
 Eva Khasirah Abdul Rahman
750 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

COW 1 to COW 2 for consideration. The information was subsequently used

to advise the Company’s senior management on the proposed retrenchment
exercise.
[Refer: i. Q&A 16 & 17 of COWS-1 (Witness Statement — Yap Mei
Fong);
ii. Page 9 of COB-1 (Email Correspondence for Retrenchment
Benefits & Info (Step by Step-HR);
iii. Pages 10 to 20 of COB-1 (Slides on Retrenchment Benefits and
Information)]
[65] Pages 48 to 50 of COB1 explains the target numbers which the Company
wanted to achieve in streamlining its workforce. Given the forecast of a reduced
workload throughout the years 2020 and 2021, the Company determined that
there was a surplus of employees and that the Company needed only 125
employees out of 458 employees as part of their Direct Workforce (employees
who are directly involved in production ie, the servicing and repairing of the
parts) for the remaining months of 2020. At the time, this meant that the
Company had a surplus of 333 employees in its Direct Workforce.
[Refer: i. Q&A 8(f) of COWS-2 (Witness Statement — Lee Chui Hiong);
and
ii. Pages 48 to 49 of COB-1 (Presentation Slides on the COVID-19
Impact Update dated 22 May 2020)]
[66] As for the Indirect Workforce (administration and support staff), the
target number to be reduced was 33 employees (ie from 119 employees to
86 employees). The Claimant was considered to be part of the Company’s
Indirect Workforce.
[Refer: i. Q&A 8(f) of COWS-2 (Witness Statement — Lee Chui Hiong);
and
ii. Page 50 of COB-1 (Presentation Slides on the COVID-19 Impact
Update dated 22 May 2020)]
[67] For those chosen for the retrenchment exercise, the Company had detailed
the compensation package that will be paid to those who are selected. They also
detailed the support that will be provided by the Company to those selected for
retrenchment. The information contained in this part of the presentation was
with the involvement of the Claimant and was provided by the HR Department
to those affected employees.
[Refer: i. Q&A 8(g) of COWS-2 (Witness Statement — Lee Chui Hiong);
and
ii. Page 51 to 61 of COB-1 (Presentation Slides on the COVID-19
Impact Update dated 22 May 2020)]
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 751
v. Airfoil Services Sdn Bhd

[68] In the aforesaid, this Court is satisfied that the Company has discharged
its burden of showing that there was a genuine redundancy situation which
justified the implementation of a retrenchment exercise.
Whether The Retrenching Bona Fide
[69] The Claimant contended that she had been unfairly dismissed based on
several grounds:
i. That her position was not redundant as her functions were still in
existence;
ii. That she had been singled out to be retrenched as a Section
Manager — Human Resource (during her maternity period);
iii. That she could have been retrained to be a Section Manager —
Training in the Human Resource Department; and
iv. That 2 expatriates with high salary had been retained by the
Company.
Whether The Claimant’s Position Was Not Redundant As Her Functions
Were Still In Existence
[70] COW-1 testified that as the Section Manager — Human Resource,
the Claimant’s daily functions comprised of managing the payroll for the
management staff, supervising general administrative matters, drafting letters
and managing employee disciplinary matters and employees’ welfare. Payroll
for non- managerial staff were managed and handled by the executives in the
HR Department. [Refer: Q&A 23 of COWS-1 (Witness Statement — Yap Mei
Fong)].
[71] COW-1 also gave evidence to state that the Claimant’s work was usually
routed to COW 1 for review and approval. During cross-examination, COW 1
clearly stated that the Claimant’s major function of handling payroll still exists.
However, COW-1 herself could perform the functions. This Court is satisfied
that this is in view of the practice pre retrenchment that COW-1 would usually
review and approve the claimant’s major functions. [Refer: CRT Recording on
21 September 2022 (Day 1) at [Link] — [Link]
[72] COW-1 further testified that the Claimant’s other functions like employee
relations was handled by the Human Resource Department team and herself.
Functions, like recruitment and and handling of disciplinary cases, were not
active at the time. [Refer: CRT Recording on 21 September 2022 (Day 1) at
[Link] — [Link].
[73] In the case of Tuan Syed Hashim Tuan Long v. Esso Production Malaysia Inc
[1997] 5 MLRH 654 the High Court emphasized that it was the Company’s
prerogative to reorganize in order to achieve maximum efficiency and
effectiveness, thus avoiding any kind of duplicity of work.
 Eva Khasirah Abdul Rahman
752 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

[74] And in the the case of Shahirman Sahalan & Ors v. Natseven TV Sdn Bhd & Ors
[2010] 1 MLRH 862 the High Court had also affirmed that redundancy could
arise even when a business achieves the same output with fewer employees. It
was held:
[29] In Harvey on Industrial Disputes illustrated the basic types of
redundancy as follows:

“The simplest type of redundancy situation arises where the business

requires fewer employees of whatever kind. It may be that there is
a recession, and the business needs fewer employees because it is
operating with a reduced output. But that need not be so. There can
just as well be a redundancy situation where the business achieves
the same or even an increased output with fewer employees. That
can come about through mechanization or computerization or just
by increased efficiency.”

[75] The author cited the cases of Sutton v. Revlon Overseas Corp Ltd [1973] IRLR
173; Carry All Motors v. Peninngton [1980] IRLR 455; [1980] ICR 806
[30] The above principle was applied by the High Court in Stephen Bong v.
FCB [1999] 5 MLRH 107, wherein a broader approach of redundancy was
adopted. In that case, the High Court acknowledged that redundancy may
arise where the business requires fewer persons and made it clear that it does
not necessarily mean that the job or work no longer exists”.

[76] Guided by the above authority, the Claimant’s major work functions
could be carried out by mainly, the Claimant’s superior who was COW-1. The
claimant’s work functions were justifiably shown to have become redundant
albeit the same were now performed by her superior, COW-1 — for the sake
of efficiency in the output, in order to reduce expenses incurred in the payroll
overhead.

Whether The Claimant Had Been Singled Out To Be Retrenched As A

Section Manager — Human Resource (During Her Maternity Period)

[77] In effort to streamline its workforce the Company had to retrench a

total of 203 employees. This meant that apart from the Claimant, 202 other
employees were also identified to be a surplus and redundant. In the Human
Resource Department itself, apart from the Claimant who was part of the
middle management, the Company also retrenched two (2) others who were
identified by COW 1 and the Claimant herself. Additionally, the Company
submits that there was another Section Manager in the Environment, Safety
and Health that was retrenched under this retrenchment exercise. [Refer: COB-
2 (Before and After Retrenchment Headcount)].

[78] During cross-examination, when referred to page 10 of CLB-2 and asked

on why the Claimant was not granted an opportunity like the others to be
repositioned in the Company, COW 1 gave evidence that the other Section
Managers repositioned in the Company are based on the need of the company.
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 753
v. Airfoil Services Sdn Bhd

i. Ng Lea Yeong who was Section Manager — Customer Support —

Was Repositioned to Section Manager — Commercial & Material
and had to handle 2 sections. COW-2 testified that Customer
Support and Procurement Department was consolidated. With
two (2) Section Managers, one (1) was maintained and another
(1) was downgraded. The consolidated department was later
known as the Commercial & Material Department, while the
Section Managers referred to here are Ng Lea Yeong and Wong
Mun Siong. [Refer: CRT Recording on 14 March 2023 (Day 2) at
[Link] — [Link]).

ii. Wong Mun Siong who was Section Manager — Procurement

— Was repositioned because the Company no longer needed
a Section Manager — Procurement. — Repositioned to Senior
Procurement Executive. COW-2 testified that he was retained
due to the skill the Company requires for procurement matters.
[Refer: CRT Recording on 14 March 2023 (Day 2) at [Link] —
[Link]).

iii. Mardziah Binti Shuib who was Section Manager — CIP —

Similar to Wong Mun Siong — Repositioned to Senior Industrial
Engineer — COW-2 testified that she was retained due to the skill
and expertise she possesses to handle work in the workshop for
the Company. [Refer: CRT Recording on 14 March 2023 (Day 2)
at [Link] — [Link]) [Refer: CRT Recording on 21 September
2022 (Day 1) at [Link] — [Link]

[79] In respect of the Claimant’s position, COW-2 had very clearly established
during cross examination that because there was a Head of Department and a
Section Manager in the Human Resource Department, the position of Section
Manager was redundant because the Head of Department could take over the
tasks of the Section Manager. [Refer: CRT Recording on 14 March 2023 (Day
2) at [Link] — [Link].

[80] COW-2 was further cross-examined as to why the Claimant could not take
over the executive role when the Head of Department took over the Claimant’s
role. It was evidenced that where lowering her position is concerned, the
Company already had 2 other executives in the Human Resource department
carrying out their specific functions required for the Company and there was
no need for another employee at the executive level.

[81] This Court takes cognizance that her retrenchment came at the time when
she was on maternity leave which can be considered at the most unexpected
time. As much as this Court is sympathetic with the predicament faced by the
claimant, this Court nevertheless found nothing to interfere in the company’s
decision to having concluded that she was selected for retrenchment prior to
her taking maternity leave. This is after all, the retrenchment exercise itself was
 Eva Khasirah Abdul Rahman
754 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

never alien to the claimant as she was involved and had a role pertaining the
same.

[82] It is important to note that the Claimant was not retrenched empty
handed. She was paid retrenchment benefits, notice in lieu and others like leave
encashment, 2019 performance bonus (final portion), and “Maternity (2 June
— 17 July 2020)”, total amounting to RM107,948.11. [Refer: pp 62 to 64 of
COB-1 (Retrenchment Notice and Retrenchment Benefit Details dated 1 June
2020)]. As such, this Court is satisfied that the Claimant was never intended to
be singled out in particular for the retrenchment exercise as everyone’s position
in the Company was subjected to evaluation based on the Company’s needs.

[83] During cross-examination, COW-1 had established that the Section

Manager — Training position was left vacant and that the Company had
not rehired anyone else because recruitment was frozen. Furthermore, the
Section Manager — Training position was a position that required technical
knowledge and production technical skill and knowledge. While the training
entails of both soft and technical skills, the Company was focused on technical
skills for the role as the Company was in a highly regulated aviation industry.
However, during the retrenchment exercise, no training was required. Apart
from this, COW-1 had also established post retrenchment exercise, the Section
Manager — Training position still does not exist. [Refer: CRT Recording on 21
September 2022 (Day 1) at [Link] — [Link]

[84] The 2 expatriates retained in reference to the above are named Matthew
Hewitt and Luah Kok Hai. Both these individuals are from the Engineering
Department of the Company. As given evidence by COW-1, both these
individuals are technically skilled employees that possessed the expertise
essential to the Company’ business. Luah Kok Hai was a Technical Advisor that
resigned in September 2020 while Matthew Hewitt was a Senior Engineering
Manager that resigned subsequently in March 2022. [Refer: Q&A 28 and 29 of
COWS- 1(Witness Statement — Yap Mei Fong)]

[85] Therefore, given the nature of the Company’s business and given the
circumstances in the Company was in, the Company was entitled to retain
the employees to carry out the critical functions of the Company’s business.
Therefore, the Company had acted bona fide when retrenching the Claimant.
The Company accordingly has successfully discharged its burden of proof
in proving that the Claimant’s retrenchment was pursuant to a genuine
redundancy situation and that the Company has acted fairly and properly in
retrenching the Claimant.

To What Extent “Last In First Out” (LIFO) Applies In Redundancy

[86] This Court is mindful of Gurbux Singh Prabha Singh v. J Whyte & Co (M)
Sdn Bhd [1981] 1 MELR 478 (supra) which held that in the exercise of that
power to terminate the services of redundant employees, the management
must, when selecting employees to be retrenched must not only act reasonably
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 755
v. Airfoil Services Sdn Bhd

but also observe any customary arrangement or code of conduct ie the Code of
Conduct for Industrial Harmony 1975.

[87] Nevertheless, another school of thought is of the opinion that the Code of
Conduct was; with the greatest of respect, a mere guidance and does not have
the force of law. The Claimant in her Submissions did not state that payments
were made to her, which included lay off benefits, which the Claimant accepted
without protest. This Court found that this is a valid exception to the strict
application to the Code of Conduct. This Court found support in the case of:

[89] The Company had argued that the Code of Conduct does not
have the force of law and non-compliance with it cannot be fatal. The
case of Senjuang Sdn Bhd v. Munsiah Mad Nor [2015] MELRU 101 was
cited for the proposition that the Code of Conduct does not have any
legal sanction. The Chairman in that case relied on the case of Penang
& S Prai Textile & Garment Industry Employees’ Union v. Dragon & Phoenix
Bhd Penang & Anor [1989] 2 MELR 687 which stated this of the Code
of Conduct:
“[32]... its acceptance is voluntary. This is so expressed by the Minister
inhis foreword to the Code. There is no legal force or sanction for failing
to accept such code of conduct...”

[90] Further, the Court of Appeal in Equant Integration Services Sdn Bhd
(In Liquidation) v. Wong Wai Hung [2012] MLRAU 591 held that:
“[12] The failure to comply with the Code per se cannot be fatal in a
proper retrenchment exercise. This is because the Code does not have the
force of law.”

[91] While the Code of Conduct may not have the force of law, it is
still the gold standard by which a company’s action may be measured
against to see if the whole exercise of retrenchment had been carried
out bona fide and that every attempt had been made to explore
alternatives before the termination on account of retrenchment.

[92] While the Code of Conduct is not statute law it nevertheless has
some legal sanction as a document that the Industrial Court should
have regard to when making its Award as clearly spelt out on s 30(5A)
of the IRA as follows:
“(5A) In making its award, the Court may take into consideration
any agreement or code relating to employment practices between
organizations representative of employers and workmen respectively
where such agreement or code has been approved by the Minister.”

[88] In the case of Syamaizar Azmi v. Central Sugars Refinery Sdn Bhd [2020]
MELRU 531 the issues inter alia involve challenging times faced by the
Company, reduction in operational costs, right of the Company to reorganize,
the LIFO rule, notice to the Claimant and payments accepted by the Claimant,
 Eva Khasirah Abdul Rahman
756 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

similar to the present case. The Industrial Court Chairman in respect of each
of the said issues stated that:

“The Company, in an effort to reduce its operational costs, had reduced the
headcount and outsourced the remainder work force and led the claimants
positions becoming redundant and subsequently retrenched....The Company
contends that it had the right to exercise managerial prerogative to reorganize
its business in any manner it had thought fit. The Company through COW2
had stated that due to challenging business enviroment and financial
situation that had been faced by it, it had to manage and reduce its
operational costs and had decided to outsource a large part of its security
section. This has not been challenged by the Claimant. Nor had they
adduced any evidence to show that the Company’s exercise in reorganising
was tainted with mala fide motive. The Company had the prerogative to
reorganize its business operations in any manner it had thought best, for
the purposes of its economic viability...It is trite law that the LIFO rule
is not mandatory as it is not a statutory provisions and it can be departed
from by the Company when retrenching employees. On the claimants
contention that they had not been informed or consulted with regards to
the rightsizing exercise and that the Company had not notified or warned
them or made any attempt to inform them about their positions and job
functions being redundant, prior to the meeting, there had not been any
legal obligation on the part of the employer to consult or to give advance
warning to the employee, on the possibility of retrenchment. They had also
taken the retrenchment payments without issue, thus implying that they
had not had any issue with their retrenchment. The evidence has shown
that the Company had been consistent in taking steps to restructure its
business. Thus, the reorganisation exercise that had been undertaken by it
had been a bona fide exercise of its managerial prerogative to run its business
operations as it had deemed fit, in order to successfully continue operations
and it had,had just and proper reasons to terminate the claimants from
employment”.

[Emphasis Added]

[89] The facts of the case cited above has similarity with the instant case. The
Company which operates in the services and maintenance of aircrafts in many
parts of world was adversely and negatively affected and as such, crucial steps
had to be taken for operational and financial sustainability. Steps were taken
to reduce operational costs so as to maintain and secure both operational and
financial sustainability. The Claimant was aware of all steps taken to savior the
company’s financial situation.

[90] The reduction in operational costs was not sufficient to maintain both
financial and operational sustainability, forcing the Company to reorganize its
business further. As such the claimant’s employment together with hundreds
others were terminated by reason of redundancy. The Claimant was paid lay
off benefits and had accepted the payments.
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 757
v. Airfoil Services Sdn Bhd

Whether The Company Suffered From Financial Constraints

[91] This Court is satisfied that the Company was not in a financial position to
sustain its operations without first taking steps to reduce the expenditure and
expenses. As reducing expenses did not suffice in order to maintain the financial
and operational sustainability, the Company had to proceed with restructuring
and reorganization of the Company. In the case of George Kent (M) Sdn Bhd v.
Tan Tai Wai, Mak Kin Kung & Wong Khoon Sang [1988] 3 MELR 502, pertaining
to financial situation, the Court posed a question and stated that:
“Does it mean that a Company is down and out before a retrenchment
exercise can be carried out? The Company’s profits had declined from
Ringgit 6.746 million to Ringgit 2.147 million. There was sufficient cause
for the retrenchment or reorganization”.

[Emphasis Added]

[92] Guided by the above case, this Court is satisfied that the company required
further steps to be taken, as cost cutting measures ie retrenchment of its
employees, including the Claimant. It is clearly unreasonable for the Company
to wait until it becomes insolvent to salvage its financial survivality. This Court
is convinced that by the above reason, the termination of the claimant was bona
fide and done to maintain financial and operational sustainability and not for
any ulterior reason.

[93] In this respect, in the case of Thomas Hans Raab v. Nokia Services And
Network Malaysia Sdn Bhd [2022] 3 MELR 301, it was held as such:
“It is well established that it is for the management to decide the strength of
its staff which it considers necessary for efficiency in its undertaking. The
Courts will not intervene unless it is shown that the decision was capricious
or without reason or was mala fide or was actuated by victimisation or
unfair labour practice. These principles have been consistenly applied by the
Industrial Court in numerous cases...the employer has a right to determine
the volume of his labour force consistent with his business and organisation
and if the implementation of a reorganising scheme adopted for reasons
of economy and better management of the business, the services of some
of the employees become excess of the requirement of the business, the
employer is entitled to discharge such excess”

[Emphasis Added]

[94] Further, in the case of Yusoff Othman v. Felda Engineering Services Sdn Bhd
[2022] MELRU 778 [Award 778 0f 2022], it was held inter alia that:
“It is well established in industrial jurisprudence that an employer is entitled
to close down the whole or part of his business so long as he acts bona fide.
The right to reorganize a business and/or a Company’s restructuring is
managerial prerogative”.

[Emphasis Added]
 Eva Khasirah Abdul Rahman
758 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

[95] In the case of George Kent (M) Sdn Bhd v. Tan Tai Wai, Mak Kin Kung &
Wong Khoon Sang [1988] 3 MELR 502, redundancy and the situation that
prevails has been stated as follows:
“We are in full agreement with the learned author C P Mills on Industrial
Disputes Law in Malaysia, that it is settled law that it is up to the Company
to decide the strength of its staff which it considers necessary for the
efficiency in its undertaking and the Court will not interfere unless it is
shown that the decision was capricious or without reason or was mala fide
or was actuated by victimization or unfair labour practice...”

[Emphasis Added]

[96] Base on the above authorities, the Company’s prerogative to reorganize

and restructure as well as to execute retrenchment exercise for its financial and
operational sustainability at the time the Company was faced with adverse and
negative effects of the Covid-19 pandemic, the Movement Control Order and
the SOP imposed by the Government; is well supported.

Whether Adherence To “LAST IN FIRST OUT” (LIFO) Mandatory

[97] In the case of Prabakaran Tharrumah v. JLW Management Services Sdn Bhd
[2018] MELRU 52 [Award No 52 of 2018], in respect of the LIFO principle
and the Code of Conduct for Industrial Harmany, the Court stated inter alia as
follows:
“..the failure to offer an alternative employment and/or failure to adhere
to the principle of LIFO as provided in the Code of Conduct for Industrial
Harmony does not render the retrenchment of the Claimant mala fide
and it cannot vitiate the fact that there was a genuine redundancy by the
Company. The failure to comply the Code per se cannot be fatal in a proper
retrenchment exercise the LIFO principle is not a mandatory principle or
rule of law LIFO is not an absolute mandatory rule (it is not a statutory
provision) which cannot be departed from by an employer when retrenching
staff. That the employer is not denied the freedom to depart from the LIFO
procedure”

[Emphasis Added]

[98] In view of the above, it is clear that the application LIFO — last in first
out is not mandatory. Further, it is clear that even if LIFO is applicable, it
would be taken into consideration within the same group of employees and
not other categories of employees as the duties and functions of the employees
are different.

[99] In the case of Tham Chee Ark & Mohammad Rafi Abd Halim v. Mahkamah
Perusahaan Pulau Pinang & Santomas Sdn Bhd [2017] 2 MELR 100, in respect of
the Code of Conduct, the Court has stated:

“The Code, however, is a mere guideline and cannot be enforced as if it is a

binding statute, on the appellant. The failure to consult and give early warning
 Eva Khasirah Abdul Rahman
[2024] 1 MELR 759
v. Airfoil Services Sdn Bhd

as required by the Code cannot vitiate the fact that there was a genuine
redundancy in the appellant Company. The failure to comply with the Code
per se cannot be fatal in a proper retrenchment exercise”.

[100] Further, in the Court of Appeal case of Equant Intergration Services Sdn
Bhd (In Liquidation) v. Wong Wai Hung [2012] MLRAU 591, in respect of the
Code of Conduct had stated the following:

“..the failure to comply with the Code per se cannot be fatal in a proper
retrenchment exercise. This is because the Code does not have the force of
law...The Code cannot be applied technically and mechanically. Instead, it
should be taken as a instant case. Failure to adhere to the requirement under
the Code per se cannot vitiate a genuine retrenchment”.

[101] It is clear from the abovementioned cases that the Code of Conduct is
a mere guidance and cannot be treated as a statutory requirement. The Code
of Conduct has no legal effect; failing to comply of which is not a fatality and
does not vitiate any genuine redundancy.

[102] In its entirety, this Court is satisfied that the Company has proven
evidence on the balance of probabilities, bona fide retrenchment which constitute
dismissal with just cause or excuse.

Decision

[103] In the upshot, the termination of the Claimant’s employment by reason

of redundancy is bona fide as the Company was faced with unforeseen and
unprecedented challenges of all times. In the case of Badariah Shahrudin v.
Mudra Resources Sdn Bhd [2022] MELRU 658, the Court in dismissing the
Claimant’s claim and upheld the redundancy as bona fide, stated that:

“...there was a genuine need by the Company to reorganize its business,

the facts and evidence had shown that the Company had been faced with
a genuine situation that had required it to reorganise its business and it had
taken a realistic approach on what had needed to be done, whilst experiencing
the financial crisis...”.

[104] In addition, in the said case in respect of what is redundancy, the Court
had stated that:

“It has been well established that, in Industrial law, the employer has every
right to reorganize its business in any manner for the purpose of economy
or convenience provided he acts bona fide and no arbitrator should interfere
with the bona fide exercise of that right. It is also well settled that it is for the
management to decide the strength of its staff which it considers necessary
for the efficiency in its undertakings. Where the management decides that the
workmen are surplus and that there is, therefore a need for retrenchment, an
arbitration tribunal will not intervene unless it can be shown that the decision
was capricious”.
 Eva Khasirah Abdul Rahman
760 [2024] 1 MELR
v. Airfoil Services Sdn Bhd

[105] In view of the above, the Company has discharged the burden of proof
and has shown and has adduced both oral and documentary evidence to
show that the redundancy was bona fide. In addition, the Company has also
proven the challenging time that the Company was facing, which would take
considerable period of time for recovery.

Conclusion

[106] Based on the facts and circumstances of the present case in its entirety
and the evidence adduced by both parties in the proceedings and upon reading
respective written submissions and hearing the testimonies of the witnesses, it
is the findings of this Court that the Company had successfully proved on the
balance of probabilities that the Claimant’s employment was made redundant
and subsequently retrenched with just cause or excuse. The Company’s actions
in reorganizing and restructuring its business and thus identifying the Claimant
as redundant prior to her retrenchment were made bona fide and not tainted
with victimization against the Claimant in which this Court has no reason to
interfere. The issues (supra) are answered in the affirmative.

[107] Having considered the evidence as produced by both parties in totality,

and bearing in mind the provision in s 30(5) of the Industrial Relations Act
1967 by which virtue this Court shall act according to equity, good conscience
and the substantial merit of the case without regard to technicalities and legal
form, this Court has no hesitation to dismiss this action. The Claimant’s case
is so dismissed.