THE BRITISH HIGH COMMISSION VS. JANSEN

THE BRITISH HIGH COMMISSION VS. JANSEN

SUPREME COURT
MOHAN PEIRIS, PC. CJ.
DEP. PC. J.
SC 99/2012
SCHCCALA 38/2012
HCALT 118/10
CT8/425/2010
MAY 14, 2013

Workman employed at the British High Commission - Services terminated -Does the Labour tribunal have jurisdiction? Diplomatic Privileges Act 1996 - Public International Law - sovereign immunity - Restricted immunity - Absolute Immunity ? Waiver of Immunity par in parent not habet imperium -jure imperii and jure gestionis.

The Applicant Respondent was employed as a Security Assistant as a permanent employee in the British High Commission. His services were terminated for alleged misconduct. The Applicant Respondent filed an application in the Labour Tribunal seeking relief against the alleged unlawful termination of his services.

At the Labour Tribunal, the Applicant British High Commission contended that Sri Lankan Laws do not apply to it- claiming state immunity (not diplomatic immunity). The Applicant Respondent contended that the contract of employment stipulates that the employees were subject to Sri Lankan Labour Laws: Although the Appellant filed answer it did not participate in the proceedings.

The Labour Tribunal upheld the objection on the assumption of Diplomatic Immunity. The High Court in appeal set aside the judgment and held that the Labour Tribunal has Jurisdiction, with Special Leave being granted by the Supreme Court.

Held:

(1) Immunity applies in this case to the act complained of, when the Respondent was appointed as Security Assistant it was an act jure imperii that attracts immunity.

(2) Express waiver of immunity from jurisdiction must be granted by an authorized representative of the State and there is no such waiver anywhere in the contract that the Respondent had with the Appellant.

(3) The provision that the Sri Lanka Labour Law would apply to the terms and condition - in the letter of appointment was nothing more than an assertion that the Sri Lanka labour laws were the governing law of the terms and condition. Such an assertion would not constitute an express waiver of State Immunity.

(4) Per Mohan Peiris, PC. C. J.

"Employees duties in this case were not only to provide security but also to maintain the inviolability of the Embassy premises. The maintenance of security in mission could not be classified as merely auxiliary but in my view since the duties of the Respondent were integral to the core sphere of sovereign activity the contract of employment was not effected in the capacity of a private citizen and the functions of the Respondent were enlisted in the interest of the public service of the UK Government and on these premises I am irresistibly drawn to the inescapable conclusion that immunity becomes applicable in the instant case.

(5) Under the principles of public international Law the UK Government is entitled to Sovereign Immunity for acts jure imperii.

APPEAL from a judgment of the Provincial High Court of Colombo - exercising jurisdiction over Labour Tribunal orders.

Cases referred to :-

(1) The Superintendent, Deeside Estate Maskeliya Vs. Illankai Tholar Kazhakam 70 NLR 279.
(2) Maclaine Watson Vs. Department Trade 1988 3 All ER 257 at 317
(3) Philippine Admiral 1976 1 All ER. 71.
(4) Trendez Trading Corporation Vs. Bank of Nigeria 1977 QB 529.
(5) I Congreso del Partido 1983 AC 244
(6) Sengupta v. Republic of India 65 ILR 325 1983 ICR 221.

(7) Littell Vs. United States of America (No.2) 1994 2 All ER
(8) Holland Vs. Lampen Wolfe 2000 I WLR 1573
(9) United states of America Vs. The Public Service Alliance of Canada and others (Re Canada Labour Code) 94 ILR 264.
(10) Kuwait Airways Corporation Vs. Iraqi Airways Co. 1995 1 WLR 1147
(11) Libyan American Oil Company (Lamco) Vs. Socialist Peoples Libyan Arab jamahirya 98 1 Ybk Comm. Arb 89
(12) International Tin Council Vs. Amalgamated Inc 1988 NYS 2d 1971
(13) R. Vs.

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