20 June 2022
This morning, the Federal Court ruled in favour of Subramaniam A/L Letchimanan by dismissing the United States Government’s appeal and remitted the case to the Industrial Court.
This is a significant and enormous victory for Subramaniam, who took on the U.S. Government
for unlawfully dismissing him 14 years ago, in 2008. The judgement is also a relief, particularly to all Malaysian citizens – as it is now apparent that the Industrial Court and Malaysian Court System have the jurisdiction to hear their matters if they are dismissed by foreign embassies.
The decision was delivered through a virtual hearing this morning by Chief Judge Tan Sri Dato’ Sri Azahar bin Mohamed of Malaya, and Federal Court judges Dato’ Zabariah binti Mohd. Yusof and Dato’ Sri Hasnah binti Dato’ Mohammed Hashim. Subramaniam was represented by pro-bono activist lawyers Ragunath Kesavan, Tai Yong Fung and Joshua Tan, while the U.S. Government was represented by Lim Heng Seng, Amardeep Singh Toor and Chong Yue Han. Additionally, Liew Horng Bin represented the Minister of Human Resources.
During the hearing on March 28, 2022, Ragunath Kesavan argued that the Court of Appeal had rightly held, inter alia, that the Industrial Court is the proper forum to decide on Subramaniam’s dismissal, and the applicability of the restrictive doctrine of sovereign immunity can only be determined after a fact-finding process done by the Industrial Court.
On the other hand, the U.S. Government argued that the issue of disciplinary conduct of an embassy staff is an internal matter and that it represents the prerogative of a sovereign state – therefore, they are immune, and the Industrial Court has no jurisdiction to hear the matter.
However, today the apex court had put this question to rest and ruled that the Industrial Court is, in fact, the appropriate and proper forum to ascertain the question of restrictive doctrine of sovereign immunity. This decision means that the embassies who had previously dismissed their workers arbitrarily or summarily whilst hiding behind the doctrine of sovereign immunity, will now be unable to do so.
Background – Long tiring battle
Subramaniam, a security guard who had worked for 20 years in the U.S. Embassy was sacked on April 4, 2008, without any explanation, show-cause letter and domestic inquiry. This is a blatant case of dismissal without due process. He filed a case in accordance with the Malaysian law and made a representation for unlawful dismissal under Section 20 of the Industrial Relations Act 1967. In spite of that, the case was still delayed for 11 years.
After persistent effort by Subramaniam and PSM in seeking justice, Human Resource Minister YB Kulasekaran had finally referred the matter to the Industrial Court pursuant to Section 20(3) of the Industrial Relations Act 1967 on July 12, 2018. The case was then heard before Yang Arif Tuan Gulam Muhiaddeen at the KL Industrial Court on May 24, 2019.
The U.S. Government eventually made all efforts to defend the dismissal by hiding behind diplomatic immunity under the Vienna Convention 1966 as well as Article 31 of the Diplomatic Privileges (Vienna Convention) Act 1966, on the basis that the U.S. Embassy enjoys legal immunity from criminal and civil lawsuits when conducting its official duty.
In addition, the U.S. Government proceeded to file an application for judicial review in the KL High Court to seek an order that was intended to quash the Minister’s reference.
On January 8, 2020, the High Court ruled that the U.S. Government possesses immunity and briefly succeeded in quashing the Minister’s reference. However, this decision was overturned by the Court of Appeal on February 3, 2021, where it was held that the question of immunity can only be decided by the Industrial Court after deliberating the nature and job scope of an employee.
Thereafter the U.S. Government appealed to the Federal Court and obtained leave on September 30, 2021. Accordingly, the Federal Court heard the matter on March 28, 2022, although initially reserving its decision on the matter until today.
Now, after 14 years – Subramaniam, an ordinary security guard, has managed to successfully go against the most powerful country in the world by effectively taking them to court and winning the case. However – his ultimate victory will only arrive after the Industrial Court hears this case and rules on it, by reason of the U.S. Government that was evidently not keen on a settlement, as they attempted every avenue of possibility to derail the court process.
PSM would like to take this opportunity to thank our lawyers, which included Ragunath Kesavan and his team who handled this case on a pro-bono basis. Their motivation was parallel to ours in seeking justice and through the belief that no worker should be dismissed unlawfully, irrespective of who the employer is.
Parti Sosialis Malaysia