Alternatively, an employer may be based in another part of the world with a presence in South Africa, or even have little to no actual footprint in South Africa. The location of an employee impacts the territorial jurisdiction of the CCMA and Labour Courts and this is important as an employer needs to understand where an aggrieved employee may file suit. 

The proposed Employment Services Amendment Bill, 2021 which flows from a proposed National Labour Migration Policy to deal with the employment of foreign workers who can be hired is not addressed in this Alert.

In Sorrell v Petroplan Sub-Sahara Africa (Pty) Ltd [2023] 3 BLLR 271 (LC), decided earlier in 2023, the Labour Court had to determine whether the claims of the employee fell within the court’s jurisdiction. The employee after some history eventually became employed by a South African employer, to perform the Mozambique-related services of the employer, in Mozambique. The employee’s place of work was important, said the Labour Court, following the decision of the Labour Appeal Court in Monare v SA Tourism and Others [2016] 37 ILJ 394 (LAC) which dealt with the principles governing the determination of territorial jurisdiction. In Monare the employee rendered services in the UK and was terminated in the UK. The employee was employed by South African Tourism (the company). The employee worked in the UK branch of the company. His contract of employment was concluded outside South Africa and was under the direct management control of the UK branch. Further, the UK branch operated independently of the South African branch?. Territorial jurisdiction is to be determined by the locality of the undertaking being carried out by the employer. The court held that it is not the place where the employer conducts its business which determines the place of employment, but instead the location of the actual workplace where the employee rendered services. To determine its territorial jurisdiction, the CCMA and courts will consider various factors to determine whether there is a link between the employment contract and the country in question. Sorrell and Monare are recent decisions on this age-old question. Employers should be aware that not all employment disputes may be subject to the jurisdiction of the CCMA or Labour Court.

Employees of foreign states

Added to this complexity is South African employees who render services in South Africa for a foreign state. Here, their workplace is South Africa. Can this form of employee approach the CCMA or Labour Court? The judgments of Pitja v CCMA and Others [2023] ZALCJHB 79 (16 March 2023), and Pitja v United States of America [2023] 8 BLLR 833 (LC) (23 May 2023) deal with this question under the Foreign States Immunities Act 87 of 1981 (Act). Pitja was employed by the US Consulate in Johannesburg as a visa assistant. Following his dismissal, he lodged a claim with the CCMA. It is a well-established principle of public international law that courts of a country will not by their process make a foreign state a party to legal proceedings against its will. The court held that the consulate at which Pitja was employed was part of the US diplomatic mission to South Africa, and a component of the US Department of State. The Act regulates the immunity that is afforded to foreign states, defined in section 1(2)(b) and (c) to include a “government of a foreign state” and “any department of that government”. A foreign state shall be immune from the jurisdiction of South African courts except as provided by the Act. One of the exceptions to the immunity established by section 2 is envisaged in section 5 which provides that a foreign state shall not be immune from the jurisdiction of South African courts in the following circumstances:

• in proceedings relating to a contract of employment between the foreign state and an individual if the contract was entered into in the republic or the work is to be performed wholly or partly in the republic; and
• at the time the contract was entered into the individual was a South African citizen or was ordinarily resident in the republic, and at the time the proceedings are brought the individual is not a citizen of the foreign state.

However, this is not without exception, as the parties are at liberty to agree otherwise.

This case demonstrates that mere presence does not also automatically mean that the employee is subject to South African labour laws. This gets back to the Monare principles relating to the link between the employment contract and the country(ies) in question, which may not always point to the application of South African labour laws and factors may point to a foreign legal system. So, employers should give due consideration to these questions when regulating the employment relationship with foreign workers at inception or when deploying South African employees abroad.