Chief Judge of Malaya Azahar Mohamed said only the doctrine of “restrictive immunity” is applicable to foreign governments or their diplomatic missions here in relation to the dismissal of their employees.
“It is clear that whether this restrictive doctrine of sovereign immunity applies in the present case would to a great extent depend on the determination and findings of facts of the precise nature, duties as well as job scope of L Subramaniam (the second respondent),” he said.
Azahar said the proper forum to decide on this, as well as on the dismissal of Subramaniam, should be the Industrial Court.
“It can only be decided upon proper and complete consideration of both oral and documentary evidence by the Industrial Court.
“The relevant evidence can only be more appropriately given at the Industrial Court, where the matter can be heard and the parties may cross-examine each other on the true nature of Subramaniam’s employment and the act of dismissal,” he said in a judgment dismissing the US government’s appeal.
Judges Zabariah Mohd Yusof and Hasnah Mohammed Hashim were also on the panel to hear the appeal.
Azahar said the designation of Subramaniam’s job as a security guard at the embassy alone was not sufficient.
He said the appellant (US government) ought to also lead evidence as to whether what Subramaniam performed had anything to do with functions related to the exercise of sovereignty of the US government.
“Whether that is true or otherwise is a matter eminently within the purview and scope of the Industrial Court’s jurisdiction as it is a mixed question of fact and law,” he added.
On Feb 3 last year, the Court of Appeal ordered the Industrial Court to hear Subramaniam’s unlawful dismissal.
A three-member Court of Appeal bench, chaired by Kamaludin Md Said, in allowing an appeal by Subramaniam and the human resources minister, said it was for the tribunal to determine whether the foreign mission had absolute immunity from local laws.
The embassy sacked Subramaniam in 2008. In April 2019, then human resources minister M Kula Segaran referred the matter to the Industrial Court to arbitrate the dispute.
However, the embassy went to the High Court to determine the immunity issue while the case was before Industrial Court chairman Gulam Muhiaddeen Abdul Aziz.
Subramaniam, 53, who served the embassy for 21 years, is seeking reinstatement or compensation as a substitute for returning to work. He was earning RM2,000 a month at the time of the dismissal.
Ragunath Kesavan represented Subramaniam while senior federal counsel Liew Horng Bin appeared for the minister and the Industrial Court.
Lim Heng Seng represented the US government.