By Sean Augustin | Free Malaysia Today
Two international laws which Putrajaya is bound by leave Malaysian employees at foreign embassies vulnerable to unfair dismissal, a human rights lawyer said.
Edmund Bon says the two laws – the Diplomatic Privileges (Vienna Convention) Act 1966 and the International Organizations (Privileges and Immunities) Act 1992 – provide total immunity to embassies in all respects of their presence here.
Such immunity not only allows for the dismissal of Malaysian employees, referred to as “locally engaged staff” or LES, but makes it difficult for them to seek legal recourse if they have been unfairly terminated, he said.
In the first place, Bon said, no legal recourse is available if an embassy is granted general immunity.
Secondly, the two laws give rise to three possible interpretations, which means the outcome of any case brought against an embassy would hinge on which interpretation the presiding judge relies on.
So, if a local employee were to challenge a dismissal in a Malaysian court, does the court follow the common law, which is premised on precedent cases, or statute law, he asked.
Bon said a recent case in which a Malaysian security guard sued the US embassy for unlawful termination was a progressive case based on common law, but should also be applied across the board to all statute laws.
“How does the court decide which law to use?” Bon, who has handled several such cases in the past, told FMT.
And if local employees want to sue the embassy, and the court finds that the embassy has immunity here, then the suit cannot be taken out in Malaysia, he said.
“They would have to do so at the embassy’s country of origin, which many would forgo as it would take up a lot of time and money.”
Bon called on Putrajaya to emulate the UK which last year proposed amendments to its State Immunity Act 1978 that will allow workers in embassies and consulates to take their employment cases to court.
In 2017, the UK’s Supreme Court found the law to be incompatible with the European Convention on Human Rights as it gave foreign states immunity from UK law regarding employment disputes brought by workers in diplomatic missions.
Bon also said Malaysia’s immunity laws went against the Federal Constitution, as they impinge on a person’s right to livelihood and equal access to justice.
“Our laws should be updated to allow every Malaysian, even those working for foreign countries and organisations, the right to sue in Malaysia and limit the immunity of these countries particularly on matters such as unfair dismissal and breach of contract,” he said.
