AFTER a hard-fought 15 years of court battles, former security guard Subramaniam Letchimanan had won his case of unlawful dismissal against the US Embassy in Kuala Lumpur in 2008.
“PSM is happy the US government lost the case and it gives hopes to workers that embassies cannot abuse workers’ rights and hide behind Immunity,” commented an elated Parti Sosialis Malaysia (PSM) deputy chairman S. Arutchelvan.
Having concluded that Subramaniam’s dismissal was without just cause or excuse, Industrial Court chairman Amrik Singh had in his 62-page judgment dated April 27 ordered the US Embassy to pay claimant Subramaniam RM66,000 within 30 days from the date of the award.
“In conclusion, based on the circumstances of the present case in its entirety and the evidence adduced by both parties in totality in the proceedings and upon hearing the testimonies of the witnesses and perusing the written submissions and their respective 60 supporting authorities, the Court is of the considered view that US Embassy had dismissed the claimant without just cause or excuse,” justified Amrik.
To re-cap, Subramaniam, now 54, who had worked for 10 years in the US Embassy was sacked on April 4, 2008 without any explanation, show-cause letter nor domestic inquiry.
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, the then Human Resource Minister M. Kulasekaran 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 US 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 US Embassy enjoys legal immunity from criminal and civil lawsuits when conducting its official duty.
In addition, the US 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 US 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 US 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 June 20, the Federal Court ruled in favour of Subramaniam by dismissing the US’s Government’s appeal and remitted the case to the Industrial Court.
The Industrial court then heard the case on Feb 16 and 17 this year with the US Government having produced two witnesses Christopher George Pixley and Eugene Kim while Subramaniam took the stand as the claimant.
In his April 27 ruling, Amrik observed that Subramaniam had worked for nine years and six months and has been unemployed for three years after his dismissal.
As such, the court ruled that he should be paid RM48,000 in backwages (RM2,000.00 x 24 months) and compensation in lieu of reinstatement of one month salary for every completed year of service which amounted to RM18,000 (RM2,000.00 x 9 months) which altogether totalled RM66,000.
Subramaniam was represented by lawyers led by Ragunath Kesavan and assisted by Tai Yong Fung, Joshua Tan and Hooisheue Khoo who took up the case from its outset on a pro bono basis
The US Government was represented by Amardeep Singh and Summer Chong. “We hope the US Government will put a closure to this and will not appeal. It has already taken us 15 years,” added PSM’s Arutchelvan. – May 2, 2023
