Industrial Court jurisdiction – Employee dismissed from employment as guard at United States Embassy – Permanent employee – Minister referred employee’s representation to Industrial Court – Whether embassy immune from jurisdiction of Industrial Court – Whether Minister erred in referring representation to Industrial Court – section 20 Industrial Relations Act 1967

The United States of America v Menteri Sumber Manusia Malaysia & Ors
[2020] 7 CLJ 210, High Court

see the grounds of judgment here

Facts The third respondent commenced employment at the applicant’s embassy in Kuala Lumpur as a guard pursuant to an employment contract which was supplemented by a document titled ‘Condition of Employment’ (Guard Services Only) signed by the third respondent. Failure to report for duty was stated as a ground for dismissal in the Condition of Employment. After failing to report for duty for the third time and after being given written warning for the failure, the third respondent was dismissed from his employment. Dissatisfied, the third respondent filed a representation to the Director General of Industrial Relations (DGIR) claiming his dismissal was without just cause and excuse and sought reinstatement to his former position. The conciliation meeting between the applicant’s embassy and the third respondent was unsuccessful. Subsequently, the Minister decided to refer the third respondent’s representation to the Industrial Court for adjudication under section 20[1] of the Industrial Relations Act 1967 (IRA). Hence, the present judicial review application by the applicant challenging the decision of the Minister.

Issue The main issue in this case was whether the applicant and its embassy were immune from the jurisdiction of the Industrial Court with regards to the third respondent’s reinstatement claim on the principle of sovereign immunity?

Held The High Court held that the dismissal of the third respondent by the applicant was in the exercise of its sovereign authority, and as such, the doctrine of sovereign immunity was applicable. The issue of sovereign jurisdiction could be resolved at the Minister’s level as wide discretionary power has been given to the Minister pursuant to section 20(3) of the IRA. Consequently, the Industrial Court had no jurisdiction to hear the third respondent’s representation and the Minister had committed an error of law in referring the representation to the Industrial Court. The representation was frivolous and vexatious and there was no serious question of fact or law to be tried.

ZUL RAFIQUE & partners
{14 August 2020}

[1] Representations on dismissals