Can an Embassy rely on Sovereign Immunity in dismissing an employee unlawfully?

SUBRAMANIAM A/L LETCHIMINAN v THE UNITED STATES OF AMERICA AND ANOTHER APPEAL [2021] MLJU 805

• Letchimanan (“the Workman”) had been working as a security guard for the USA Embassy (“the Embassy”) since 1998.

• On 4.4.2008, the Workman received a phone call from an official of the Embassy that his employment had been terminated. No reasons were given.

• The workman thought that he should at least be informed of the reasons for being sacked and so he wrote to the Embassy but was disappointed to receive no reply.

• The Workman felt aggrieved that after serving for more than 10 years he was terminated without notice and with no reasons given.

• The Workman thought he should lodge a police report to show his seriousness in pursuing justice and to accurately put on record what had happened to him.

• He also filed a representation under section 20(1) of the Industrial Relations Act (“IRA”) with the Director General of Industrial Relations (“DGIR”) at the Kuala Lumpur Industrial Relations Department.

• There was no progress on this issue until 10 years later, a letter from the DGIR office calling for a conciliation meeting on 28.9.2018.

• The Embassy was present through its representative and the Workman was also present at the Kuala Lumpur Industrial Relations Department. However, no settlement was reached.

• The Embassy sent a representation to the DGIR stating that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court.

• The Minister of Human Resources (“the Minister”) was subsequently informed by the DGIR that there was no resolution of the dispute between the workman and the Embassy.

• After considering the representation of the parties, the Minister decided to refer the matter to the Industrial Court (“the Reference”). The Reference was made on 22.4.2019.

• This prompted the Embassy to challenge by way of a Judicial Review application to the High Court arguing that state immunity applied and that the Minister was wrong in law to have referred the dispute to the Industrial Court.

• The High Court agreed with the Embassy and quashed the reference by the Minister and a prohibition against the Industrial Court from adjudicating the Minister’s reference.

• Both the Workman and the Minister had appealed to the Court of Appeal.

• The Court of Appeal stated that the High Court Judge had erred in his decision to allow the Judicial Review application and to quash the Minister’s decision to refer the dispute to the Industrial Court.

• The issue of whether the dismissal of the workman as a security guard involved the question of the exercise of a sovereign act that attracts restrictive immunity or otherwise would depend on findings of fact with respect to the nature of his job. That exercise is best undertaken by the Industrial Court.

• The Industrial Court could now proceed to hear the dispute.