Human Rights Defenders: An appeal to the Court of Appeal dated 16/6/2011 to join 31 workers as parties have been filed

Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez(Case No: 22 NCVC – 173 – 2011) is before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex 

An appeal to the Court of Appeal dated 16/6/2011 have been filed with regard the High Court’s decision on 10/6/2011 to dismiss the application of Charles Hector to join the said 31 Burmese migrant workers as parties in the suit. 

The victims are these 31 workers. The source of information is the 31 workers. The subject matter of all the said blog postings is what happened to these 31 workers. The issues before the court are about these workers’ rights – Employer’s duties and obligation to workers? Even if not employer, Asahi Kosei’s obligations and duties towards these 31 workers that worked for them? Given the fact that they are all migrant workers, so easily can their work passes be cancelled, and they risk being send off to Burma before the complaints and claims to rights is heard and disposed off. As it is working in Asahi Kosei now is only 26 of the 31 workers.

Charles Hector have filed an application for a stay of proceedings in the High Court until after the appeal to the Court of Appeal is heard and disposed off. The Judge, on 20/6/2011, a date fixed for case management has now fixed the hearing date for this stay application on 24/6/2011(Friday) at 9.00am.

Important Past Dates

14/2/2011 –  Charles Hector receives company’s lawyers letter of demand.

14/2/2011 – Company filed court action, and applies for an ex-parte interlocutory injunction

17/2/2011 – Hearing of application & Court grants ex-parte order

21/2/2011 – Charles Hector receives order & court documents (becomes aware for the first time that Company had filed suit and applied for an order)

4/3/2011 – 1^st hearing date of Company’s inter-parte application for an interlocutory injunction.

1^st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011

21/3/2011 – 2^nd hearing date for both applications

30/3/2011 – 3^rd hearing date for both applications

11/4/2011 – Court allows company’s application for interlocutory injunctions until end of trial, but narrowed it to just the said 31 named migrant workers, and prohibiting Charles Hector from communicating vide blog (http://charleshector.blogspot.com/) and twitting, and dismissed Charles Hector’s application to set aside judgment of 17/2/2011, ordering cost to be cost in the cost for the said 2 applications, and also with regard the order of 17/2/2011.

25/5/2011 – Hearing of Charles Hector’s application to join the 31 workers as parties in the suit

10/6/2011 – Court dismisses Charles Hector’s application to join the 31

16/6/2011 – Charles Hector appeals to the Court of Appeal with regard 10/6 decision

20/6/2011 – Charles Hector files stay of proceeding pending appeal application

Next date: 24/6/2011(Hearing date for stay pending appeal application)

[Trial dates that were fixed – 28 and 29 June 2011)

Charles Hector, Human Rights Defender, Activist, Lawyer & Blogger is being sued by the company for defamation for raising information of human rights and worker rights violations of workers working in the said company on his Blog. Information circulated came from the 31 migrant workers from Burma. Before any posting, an email was sent to Asahi Kosei for their response, which contained also these words, “If there are anything that you would like to correct, kindly revert to me immediately. …An urgent response would be appreciated. Failing to hear from you, I would take it that the allegations of the workers are true.”. The company did not respond, and subsequently commenced a legal suit 6 days later.

The company’s main argument is that these are not their workers, but are workers supplied by an ‘outsourcing agent’. The company says that these workers are not on their ‘direct payroll’ …salaries are paid to the agent, hence they are not responsible for these workers, and for what happened. The company claims no knowledge of any termination or attempted deportation….or any ‘new agreement’.

Charles Hector is also of the opinion that once the workers are supplied to the company, then an employment relationship arises…between the workers and the company…A company must be responsible for all workers that work in their factory.

Sadly, on 10/6/2011, at about 3.30am, Simon Fernandez (a.k.a. C.S. Fernandez), the father of Charles Hector Fernandez suddenly passed away. Deepest condolence to Charles Hector & family