The US Government has done it again. After previously losing to Subramaniam A/L Letchimanan in the Court of Appeal on February 3, 2021 and the Federal court on 20 June 2022, where the Federal Court ruled in favour of Subramaniam by dismissing the US Government’s appeal and remitted the case to the Industrial Court.

On April 27 this year, the Industrial Court Chairman YA Tuan Amrik Singh in a 62 page judgment concluded that sovereign immunity does not extend to this matter and then proceeded to decide that Subramaniam’s dismissal was without just cause or excuse and ordered that the US Embassy of to pay Subramaniam the Claimant a sum of RM66,000 within 30 days from the date of the Award.

Just when Subramaniam was waiting for the appeal dateline to expire on August 15th. the US Government had filed an application for judicial review on 9.8.2023 at Kuala Lumpur High Court against the award given by the Industrial Court. The leave application is fixed for hearing on 3.10.2023 before YA Dato’ Amarjeet Singh a/l Serjit Singh.

It seems that the US Government is running circles and frustrating efforts by a security guard to get redress over his unlawful dismissal case. This case can be easily disposed off by paying the claimant what is due. Yet it seems that the US Government prefer to spend much more money in legal fees rather than resolving a long overdue case. It seems arrogance and foolishness has prevailed over wisdom and justice.

Subramanian and PSM will continue to fight on along with our legal team of Ragunath Kesavan and Tai Yong Fung. The same fight continues in another turf yet again.

BACKGROUND

Subramaniam, a security guard who had worked for 10 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. 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 then 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 and on 20 June 2022, 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.

The Industrial court then heard the case on 16 and 17 February 2023 and YA Amrik ruled on 27 April 2023 ruling, said since Subramaniam had worked for 9 years and 6 months and was not employed for 3 years after his dismissal. The court ruled that he should be paid Backwages RM2,000.00 x 24 months = RM48,000.00 and Compensation In Lieu of Reinstatement ie one month salary for every completed year of service RM2,000.00 x 9 months amounting to RM18,000.00 and in total RM66,000.00

S.Arutchelvan
PSM Deputy Chairperson

24 August 2023