The restrictive doctrine of sovereign immunity does not automatically preclude claims under the Industrial Relations Act; factual assessments of the employee's duties are essential to determine jurisdiction.

JUDGMENT

Azahar Mohamed CJM:

Introduction

[1] The two related appeals before this Court raise an important issue in relation to the principle of restrictive doctrine of sovereignty immunity in an employment dispute.

[2] In essence, under the restrictive doctrine of sovereign immunity, immunity would not be granted if a sovereign state performs certain private acts or transactions which are commercial in nature. If the dispute brings into question for instance executive or governmental policy of the sovereign state, the Court or tribunal should grant immunity if asked to do so, because it offends the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts or tribunal of another country (see Rahimtoola v. HEH The Nizam of Hyderabad and Others [1958] AC 379 at p 422, The 'I Congreso Del Partido [1981] 2 All ER 1 1064, Commonwealth Of Australia v. Midford (M) Sdn Bhd & Anor, [1990] 1 MLJ 475 SC, Hii Yii Ann v. Deputy Commissioner Of Taxation Of The Commonwealth Of Australia & Ors; 2017 MarsdenLR 211 ; [2017] 10 CLJ 743; [2017] 5 AMR 684 HC).

[3] The very important question this judgment sets out to address is whether, in the context of an employee's claim that he has been dismissed without just cause or reason by a sovereign state, the proper forum to decide the applicability of restrictive doctrine of sovereignty immunity should be at the Industrial Court or by way of judicial review proceedings in the High Court.

Factual Background

[4] The appellant is the United States of America, a sovereign state which has established a diplomatic mission, the Embassy of the United States of America in Kuala Lumpur ("Embassy"). On 29 September 1998, the 2nd Respondent, a Malaysian, was employed as a security guard at the Embassy by the Appellant. The dispute in the present case arose when he was dismissed from his employment by the Appellant on 4 April 2008. It was on that day he received a phone call from an official of the Embassy that his employment had been terminated. No reasons were given.

[5] The 2nd respondent felt aggrieved that after serving for more than 10 years he was terminated without notice and with no reasons given. On 23 May 2008 he filed a representation under s 20(1) of the Industrial Relations Act 1967 (" IRA 1967") claiming his dismissal by the Embassy was without just cause and excuse and seeking for reinstatement to his position as a security guard at the Embassy (" Section 20 Claim"). At the material time, the 2nd respondent as a dismissed employee has no direct access to the Industrial Court. Access was available only upon a reference by the Minister of Human Resources ie the 1st respondent to the Industrial Court. He may make a reference after efforts at conciliation by the Director General of Industrial ("DGIR") failed to arrive at a settlement. The DGIR files a report to the 1st Respondent upon which the latter will decide whether the claim should be referred to the Industrial Court for adjudication on the question whether the dismissal was for just cause or excuse. The 1st Respondent's reference conferred threshold jurisdiction upon the Industrial Court to enter into the adjudication of a Section 20 Claim. Without his reference, the Industrial Court would have no lawful authority to do so.

[6] Reverting to the facts of the present case, a conciliation meeting was held between the Embassy and the 2nd respondent but no settlement was reached thereat.

[7] In point of fact, the 1st respondent then proceeded to consider the representation by the 2nd respondent and was satisfied that:

(a) The 2nd respondent's representation raised serious questions of facts and laws that require adjudication;

(b) The issue concerning the claim of immunity by the Embassy is an issue of law that should be decided by the Industrial Court; and

(c) The 2nd Respondent's representation is not frivolous and vexatious.

[8] Thereafter, vide a letter dated 22 April 2019 from the Industrial Relations Departmen