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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.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?