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Article 46/2024

LabourEdge

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.
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?