Lee Swee Seng JCA:
[1] These combined appeals raise the intriguing question as to whether the principle of restrictive immunity applies in the context of the dismissal of a workman, engaged as a security guard, in a reference by the Minister to the Industrial Court under s 20 of the Industrial Relations Act 1967 ("IRA") where the employer is a sovereign state in The United States of America ("The USA").
[2] The USA had made the challenge by way of a Judicial Review application to the High Court arguing that state immunity applied and that the Minister of Human Resource ("Minister") was wrong in law to have referred the dispute to the Industrial Court. At the High Court the Minister was the 1st respondent, the Industrial Court the 2nd respondent and the workman the 3rd respondent.
[3] The USA had prayed for a certiorari to quash the reference by the Minister and a prohibition against the Industrial Court from adjudicating the Minister's reference. There was also a prayer for a declaration that the workman and The USA and its Embassy are immune from the jurisdiction of the Industrial Court.
[4] The High Court agreed with The USA and granted the reliefs as prayed and ordered costs of RM6,000.00 each to be paid by the workman and the Minister.
[5] Both the workman, Subramaniam Letchimanan and the Minister had appealed to this court and both appeals were heard together.
[6] The appellants shall be referred to as the "workman" or the Minister as the case may be and The USA as the respondent for all practical purposes though the workman is also 3rd respondent in the Minister's appeal to this court and the sole respondent in the workman's appeal.
Background Facts
[7] The workman, a Malaysian, had been working as a security guard for The USA Embassy since 20 September 1998. For all intents and purposes the respondent accepted the fact that The USA is the employer here, taking the stand that the Embassy is not a legal entity as such. On that fateful day on 4 April 2008 he received a phone call from an official of the Embassy that his employment had been terminated. No reasons were given.