What is the approach to be adopted to determine whether or not the CCMA (or relevant bargaining council) or the labour court has jurisdiction where a person is dismissed outside the territorial waters of the Republic of South Africa?
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Locality of undertaking where the employee is employed approach
- The labour appeal court, in Astral Operations v Parry (2008) 29 ILJ 2668 (LAC), followed the approach adopted in Genrec Mei v Industrial Council for Iron, Steel, Engineering and Metallurgical Industry 1995 (1) SA 563 (A), to the effect that the locality of the undertaking where the employee was employed is the determinative factor in establishing the jurisdiction of the CCMA or the labour court.
- The said approach was subsequently followed in Sorrell v Petroplan (2023) 34 SALLR 3 (LC).
The undertaking outside South Africa considered as separate and divorced from the South African undertaking approach
- On the other hand, the labour appeal court, in Monare v SA Tourism (2016) 37 ILJ 394 (LAC); (2023) 44 ILJ 894 (LC), adopted a different approach and identified that the real question is an investigation as to whether or not the operation outside South Africa is a separate and divorced operation from the South African operation – a positive answer in the above regard would indicate that the LRA is not applicable, whereas, on the other hand, a negative answer in the above regard would indicate that the LRA is applicable.
- The aforesaid approach of the labour appeal court was subsequently followed in Robineau v Schenker SA (Pty) Ltd (2020) 31 SALLR 149 (LAC); (2020) 41 ILJ 1648 (LAC).
A different approach applicable to labour brokers?
- The labour court, in MECS Africa (Pty) Ltd v CCMA and Others (2014) 35 ILJ 745 (LC), however, indicated that, when considering whether or not the CCMA has jurisdiction to hear disputes referred to it by employees of a South African labour broking service when so placed outside the borders of South Africa, the test to be applied is, in line with the Astral judgment (supra) (LAC), the following: where is the locality of the employer’s undertaking in which the employee works? – seeing that the labour broker conducts its labour broking business at the place where it recruits and procures labour and not the place where its clients have operations, the CCMA, in this case, had jurisdiction over employees of the labour broker employed by the client in the Democratic Republic of Congo
- The labour court, in Sorrell (supra), disagreed with the approach adopted in the aforesaid judgment.
