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
As you are aware, an appeal has been filed at the Court of Appeal with regard the dismissal of the Charles Hector’s application by the High Court Judge to join the 31 affected Burmese migrant Workers. This application was dismissed on 10/6/2011, and the appeal to the Court of Appeal was filed on 16/6/2011.
Thereafter, an application was made to the High Court to stay proceedings at the High Court until after the appeal was heard and disposed off by the Court of Appeal. This application was also dismissed by the High Court on 27/6/2011.
The trial then was supposed to commence on 28 and 29 June 2011, but the court allowed an application for adjournment by Charles Hector, and fixed the trial for 24, 25 and 26 August 2011.
We had hoped the Court of Appeal would have been able to deal with the appeal by then. Delay was also caused by the High Court in not furnishing the Grounds of Decision and the Notes of Evidence, which were material documents needed to be included in the Record of Appeal, before the Appeal was heard. At the end of July, finally these documents were available, and the Court of Appeal fixed 9/8/2011, as a case management date to fix the hearing date of the appeal.
Mr Francis Pereira attended this appointment before the Registrar of the Court of Appeal, with several dates before the trial suitable for both parties, but unfortunately the Court of Appeal fixed the hearing date of the appeal on 5/10/2011.
Given the fact that the trial dates are fixed for 24, 25 and 26 August, it has now forced us to make an urgent application to the Court of Appeal for an order staying the trial at the High Court until after the appeal is heard and disposed off. We had hoped to avoid this application, but now there is no choice. The lawyers of Charles Hector are now rushing to file this application in court, and hope for a quick hearing date before the 24/8/2011.
It is important for these workers, after being joined as parties, would also have the right put in claims who is the real employer, and the obligations that Asahi Kosei has towards these workers against Asahi Kosei. One of the key issues that the court will have decide on is the question of.
The Appeal at the Court of Appeal in Putrajaya, had been given the following number, Civil Appeal No B-02 (NCVC) 1709-2011
Charles Hector was represented by lawyers Francis Pereira, who also mentioned on behalf of Asahi Kosei’s lawyers at the appointment before the Registrar on 9/8/2011.
Notes :-
Appreciation for the solidarity and presence of civil society representatives and a representative of the Danish embassy, who also came on behalf of the European Union on 27/6/2011.
Appreciation also to the potential witnesses, who had made time and were ready to be in court as potential witnesses for Charles Hector on 28 and 29 June. Sorry for all inconvenience caused.
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 – 1st hearing date of Company’s inter-parte application for an interlocutory injunction.
1st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011
21/3/2011 – 2nd hearing date for both applications
30/3/2011 – 3rd 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 [Civil Appeal No B-02 (NCVC) 1709-2011]
20/6/2011 – Charles Hector files stay of proceeding pending appeal application
24/6/2011 – Court hears the application for stay of proceedings
27/6/2011 – Court dismisses stay application – but then grants adjournment of full trial. New trial dates fixed on 24, 25 & 26 August.
9/8/2011 - Court of Appeal fixes the hearing date of Civil Appeal No B-02 (NCVC) 1709-2011 on 5/10/2011.
Next date: Trial dates are now fixed for – 24, 25 and 26 August 2011)
Charles Hector, Human Rights Defender, Activist, Lawyer & Blogger is being sued by the company for defamation for highlighting information of human rights and worker rights violations of workers working in Asahi Kosei’s factory on his Blog. Information 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…and A company must be responsible for all workers that work in their factory.
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