Ex-security guard at US Embassy loses RM66k unfair dismissal award

The US Embassy is immune from the jurisdiction of Malaysia’s Industrial Court, leading to an ex-security guard losing an RM66,000 award for alleged unfair dismissal.

The Kuala Lumpur High Court said this to the legal teams of the embassy and former security guard L Subramaniam via email this morning.

The High Court also ordered Subramaniam to pay RM8,000 in costs to the US government.

Last year, the Industrial Court awarded RM66,000 to Subramaniam (above) over his alleged unlawful dismissal from the US Embassy in Kuala Lumpur 16 years ago.

The US Embassy then turned to the Malaysian civil court to quash the Industrial Court ruling.

From the onset, the US Embassy’s legal team contended that the Industrial Court had no jurisdiction to hear the case involving Subramaniam’s 2008 dismissal.

In an immediate response to the Malaysian court ruling, Parti Sosialis Malaysia (PSM) deputy chairperson S Arutchelvan expressed shock at the outcome, ruminating that it means Malaysian workers who work in foreign embassies have no legal protection as the embassies seem to have absolute immunity.

“This decision also seems to go contrary to an earlier ruling of the Federal Court on June 26, 2022, which upheld the decision of the Court of Appeal that foreign embassies do not have absolute immunity. The case was then ordered and referred to the Industrial Court,” Arutchelvan said in a media statement.

He pointed out that the Malaysian Industrial Court itself concluded that sovereign immunity does not extend to this matter and ruled that Subramaniam’s dismissal was without just cause or excuse, and ordered that the US Embassy pay him RM66,000.

“We have yet to receive the ground of judgment but we would definitely appeal this case (to the Court of Appeal), and we would urge the Malaysian government, who is the first defendant (the US Embassy is the other defendant), to also appeal this bad decision which will have serious repercussion to the welfare and wellbeing of workers in Malaysia,” Arutchelvan said.

In his ruling delivered on April 27 last year, Industrial Court chairperson Amrik Singh said the US Embassy failed to provide evidence of misconduct against Subramaniam, now aged 56.

According to the written ruling, Amrik noted that the US Embassy’s legal team spent a large portion of their submissions stating the Industrial Court had no jurisdiction to hear the case, rather than providing evidence over Subramaniam’s alleged misconduct linked to unauthorised leave of absence.

Amrik pointed out, however, that the issue of the US Embassy enjoying absolute immunity did not apply here as Subramaniam’s contract of employment from Sept 20, 1998, until his termination on April 4, 2008, did not involve the handling of confidential information that had an impact on US sovereignty.

The chairperson noted that Subramaniam was never promoted to a higher position that would have involved handling confidential information despite being employed at the embassy for nearly 10 years.

“The employment contract itself did not provide a clear indication of the law applicable to the claimant (Subramaniam) and the US Embassy should there be a dispute between them. There was a total disregard for the claimant’s right of appeal when he had written to seek an explanation for his dismissal.

“The claimant cannot be left to ponder which legal system is applicable for him to seek redress for his dismissal when no response was advanced by the US Embassy at the time of his dismissal.

“The additional point here is, of course, the claimant - being a Malaysian - enjoys the rights under the laws of his home country.

“In this case, no documentary evidence was produced to prove that no claims or proceedings can be brought before the Malaysian courts due to the sovereign immunity of the US Embassy, which in turn entails the claimant to treat the employment contract as commercial in nature,” Amrik said.

Misconduct not disclosed

He noted that the US Embassy had made it clear from the onset that it would not participate in the hearing of the merits of Subramaniam’s case, resulting in the embassy not providing any evidence of the claimant’s alleged misconduct that formed the basis behind the dismissal.

Amrik pointed out that the particulars of Subramaniam’s alleged misconduct were not disclosed to him so that he could answer or provide any explanation prior to the termination.

In calculating the award of RM66,000, the Industrial Court considered Subramaniam’s back wages of RM2,000 times 24 months, as well as compensation in lieu of reinstatement (one-month salary for every completed year of service) of RM2,000 times nine months.

Amrik also ordered the US Embassy to pay the RM66,000 to Subramaniam within 30 days of the date of the award, namely April 27 last year.

Subramaniam claimed that his service was unfairly terminated in 2008 after a decade of employment there.

He filed a representation under Section 20(1) of the Industrial Relations Act 1967, claiming that his dismissal by the embassy was without just cause and excuse, and sought reinstatement to his position as a security guard.

In April 2019, the then human resources minister M Kulasegaran referred the matter to the Industrial Court for adjudication of the dispute.

From court to court

The US government then filed a judicial review application in the High Court seeking to quash the then minister’s reference decision and a declaration that it and its embassy were immune from the jurisdiction of the Industrial Court.

The High Court on Jan 8, 2020, ruled that the US government and its embassy were protected by immunity and prohibited the Industrial Court from adjudicating Subramaniam’s unlawful dismissal claim case.

In 2021, the Court of Appeal overturned the High Court’s decision and ordered the Industrial Court to proceed with hearing the dispute, prompting the US government to bring the matter up to the Federal Court.

The Federal Court in June 2022 upheld the ruling of the Court of Appeal. - Mkini