LETTER | Open letter to US president Joe Biden

LETTER | Firstly Mr President, let me congratulate you on your election as the 46th president of the United States. 

Among one of the first things you did upon becoming president was to raise the minimum wage and you have also said that no one should work 40 hours a week and live in poverty. Because of these gestures, we have decided to write a letter to you in the hope that you will intervene to ensure justice for a worker.

Mr President - let me take you back to April 2, 2008, a rainy day more than twelve years ago. Subramanian Letchimanan, a security guard who had been working in the US Embassy for more than 20 years, was not feeling well. He was wet from the rain and went to a clinic.

In spite of the heavy rain, he presented himself at the US Embassy in Jalan Tun Razak, Kuala Lumpur to pass his medical certificate (MC) which the doctor had given him for April 2 and 3, 2008. He passed the MC to a supervisor who logged it into the logbook and told him to take care and go home. 

On April 4, Subramaniam received a shocking telephone call from his supervisor. He was told that he had been terminated and was instructed to return all work-related equipment to the embassy.

Subramaniam filed a claim for wrongful dismissal, which he initially lost but won at the Court of Appeal; yet, till today, he has not got justice.

Mr President, I know you are busy with domestic issues especially when this case is 15,328km away from the United States. But I need to highlight how petty and arrogant the US government has been in dealing with a simple case of unlawful dismissal.

Mr President, recently, we were appalled to learn that the US government wanted to challenge the landmark decision by our Court of Appeal dated Feb 3, 2021, and take this case to the Federal Court. This is yet the latest attempt by the US government to frustrate Subramaniam’s attempt to get a day in court to discuss his dismissal which has never been heard yet in any domestic inquiry or in any court to date.

The Malaysian Court of Appeal in February ruled that the nature of employment is a question of fact that can only be decided by the Industrial Court and referred the matter to the Industrial Court to decide whether Subramaniam was dismissed with or without just cause.

Mr President, Subramaniam is a normal security guard who worked 20 years in the US Embassy and was sacked without any explanation, without any show-cause letter, without any Domestic Inquiry which grossly violates every basic labour ethics and due process. This was a blatant case of unlawful dismissal without due process.

I am sure, Mr President, even you would not be tolerant of such abuse of the process of law and would understand that every case of dismissal needs to go through an appeal process and inquiry. Here, Subramaniam was denied that basic right.

Let me expose how determined the US government is to deny a person a day to be heard in court

1. Initially, the US Embassy refused to entertain the case, saying that they are protected and have immunity. Only after the intervention of the Prime Minister’s Department’s Public Complaint Bureau and Foreign Affairs was a meeting held on Jan 23, 2014, at Wisma Putra.

At the meeting, the US Embassy said that all their documents had been sent to Washington and that they couldn’t proceed. We then provided them with some relevant documents because we were under the impression that the US Embassy would give us a fair hearing since this worker had worked for them for 20 years.

They then finally met us on Oct 17, 2014, just to say they had followed all procedures and the sacking was proper. It seemed that their intention was not to find an amicable solution but to keep frustrating this process.

2. After persistent efforts by Subramaniam in seeking justice, finally on July 12, 2018, our then human resources minister referred the matter to the Industrial Court in accordance with Section 20(3) of the Industrial Relations Act 1967 dated 22 April 2019.

Then the US disputed the notice by the Industrial Court as well as claimed the letter sent to the US Embassy was defective. The Embassy argued that under Article 22 of the Vienna Convention on Diplomatic Relations, the notice should be served directly to the Embassy but must be served through diplomatic channels.

The embassy also claimed that the notice must be directed to the US government. Based on this technicality, the US considered the service defective and stated that they would not file a response or appear at the hearing and would not recognise the validity of any judgement that might be rendered.

3. After the Industrial Court agreed to hear this matter, the US government made an application for judicial review to challenge the decision of the then human resources minister, naming him as the first respondent, the Industrial Court as the second respondent and Subramanian as the third respondent. 

The US government was seeking a certiorari order to quash the minister’s order to refer the case to the Industrial Court under Section 20 for wrongful dismissal. The pretext was that the US Embassy was immune and applying for a declaration that they have immunity and cannot be taken to court.

4. Now Mr President, after the US lost in the Court of Appeal, it is now seeking to fight the matter at the Federal Court. Mr President, this is not even a high-profile case like slain journalist Jamal Khashoggi’s case. This is a case of a security guard earning a low wage and your government wants to fight him right up to the Federal Court!

Mr President, your government has taken every effort to fight the wrongful dismissal case by hiding behind diplomatic immunity under the Vienna Convention 1966 as well as under Article 31 Act 636 where the US Embassy has legal immunity from criminal and civil suits when they are conducting official duty.

Our counsel has argued that the case can be heard under Malaysian jurisdiction and the US does not have absolute immunity and cited EU and UK examples that support the position that in such cases the foreign government does not have immunity over local laws.

Mr President, the only right thing to do is for the US government not to further delay this matter and if possible, reinstate Subramaniam or pay whatever is due to him. The least is to allow him a day in court to argue his unlawful dismissal case. Mr President, it is not enough for the US to proclaim that they are the leader of the Free World when workers’ rights are trampled on so unjustly.

I appeal to your conscience, Mr President, to do the right thing and ensure that justice is done.

S ARUTCHELVAN is deputy chairperson of Parti Sosialis Malaysia (PSM).