The principle of restrictive doctrine of sovereignty in an employment dispute.

The United States of America v Menteri Sumber Manusia & Ors [2022] MLJU 1258 – FEDERAL COURT [Civil Appeal No: 01(f)-18-10/2021(W)]

• The United States of America (the ‘USA) is a sovereign state which has established a diplomatic mission, the Embassy of the United States of America in Kuala Lumpur.

• Subramaniam a/l Letchimanan (the ‘Mr.Subra), a Malaysian, was employed as a security guard at the Embassy.

• The dispute in the present case arose when Mr. Subra was dismissed from his employment by USA via a phone call from an official of the Embassy with no reasons given.

• Feeling aggrieved, the Mr. Subra filed a representation under section 20(1) of the Industrial Relations Act 1967 (“IRA 1967”) claiming his dismissal by the Embassy was wrongful.

• The Minister of Human Resources then referred the matter to the Industrial Court for adjudication.

• Before Mr. Subra could proceed to file his claim at the Industrial Court, USA filed an ex-parte application to the High Court for leave to commence judicial review proceedings seeking amongst others that a declaration be made that USA and the Embassy were immune from the jurisdiction of the Industrial Court.

• The High Court held that the Industrial Court had no jurisdiction to hear Mr. Subra’s claim and was of the view that USA was immune from the jurisdiction of the Industrial Court. This was because the Mr. Subra’s duty as a security guard is integral to the sovereign activity of its sovereign authority and as such the doctrine is applicable.

• Subsequently, an appeal was filed and the Court of Appeal allowed and set aside the High Court’s decision. Hence, this appeal before the Federal Court by USA.

• The Court held that the Minister has a wide and unfettered discretion under Section 20(3) of the IRA to refer representation to the Industrial Court, provided that he has acted bona fide and has not taken into account extraneous or irrelevant matters.

• The applicability of restrictive doctrine of sovereign immunity depends on the finding of facts of the precise nature, duties as well as job scope of Mr. Subra.

• Hence, the Federal Court held that the proper forum to decide on the issue of the nature of his job and dismissal should be the Industrial Court, after complete consideration of both oral and documentary evidence.

• Further, the Federal Court was of the view that precedent cases in other jurisdictions involving Employment Tribunals showed that, the Industrial Court has the duty of fact-finding to determine the applicability of the restrictive doctrine of sovereign immunity.

• In conclusion, the Federal Court held that the appropriate and only forum to determine whether USA and the Embassy were immune being sued was the Industrial Court. Hence, the appeal was dismissed.