By M. Mageswari | The Star
In a landmark judgment, the High Court has ruled that High Commissions can be sued over labour disputes.
This was decided in an application for judicial review by former Australian High Commission office manager Chu Siew Mei @ Karen, 55.
Chu had applied for a court order to strike out a decision by the Director-General of Industrial Relations (DGIR) dated Feb 5, 2014.
The decision was that DGIR and the Industrial Relations Department have no jurisdiction to handle her case – her termination from employment – on grounds that her former employer, being a foreign mission, was entitled to diplomatic immunity.
In her affidavit, Chu who is a Malaysian, said she was employed by the Australian High Commission here as its office manager since Oct 30, 1989 and was suspended from May 28 to Dec 19, 2013 pending an investigation into allegations that she breached the Commission’s Code of Conduct.
She received a letter later, notifying that her employment with the Commission was terminated with immediate effect, and claimed the sacking was unjust.
Yesterday, High Court (Appellate and Special Powers) judge Justice Asmabi Mohamad allowed her bid for a judicial review, with costs amounting to RM4,000.
Speaking to reporters hereafter the decision, Chu’s co-counsel Pauline Tan Poh Yee said the DGIR argued that Article 31 of the Diplomatic Privileges (Vienna Convention) Act 1966 gives immunity to the Australian High Commission from any civil or criminal proceedings.
“But the court found that this Act only applies to diplomatic agents. Diplomatic agent refers to a person and the High Commission is not a person.
“This Act does not apply to the High Commission but to the High Commissioner or other officers in the Commission,” she said.
Tan also said that Chu was employed by the Commission and not the Commissioner, so the Act does not apply.
She said the court also found that under the International Organisation Act, the Foreign Affairs Minister could declare that the High Commission was protected from legal suits.
But there was no such declaration made, that the High Commission enjoyed such immunity, she said.
Tan said it was a landmark judgment as there was no law in Malaysia that specifically governs the immunity of a foreign state, which includes High Commissions.
Chu’s lead counsel Edmund Bon said this was the first time a court has decided on the issue, which affects all Malaysians employed by foreign missions.
“The decision upholds every Malaysian’s right to a livelihood, under Article 5 of the Federal Constitution,” he said.”Otherwise, there is no remedy for Malaysian employees if they are sacked, if such immunity applies to High Commissions.”