THE JURISDICTION OF THE LABOUR COURT IN INTERNATIONAL EMPLOYMENT CONTRACTS IN RESPECT OF WORKPLACES OUTSIDE SOUTH AFRICA

Abstract

Does the Labour Court have jurisdiction to adjudicate disputes between a South African employer and a South African employee where the employee performs work for the employer in a foreign country? This is a question that should be considered, as one effect of globalisation is that South African employees are increasingly working for South African employers outside of South Africa. The difficulty is that the answer to the question is to be found in the area of private international law (conflict of laws) and that very few labour disputes involving private international law have been decided by South African courts. In 2002 in Kleynhans v Parmalat SA (Pty) Ltd (2002 9 BLLR 879 (LC)) and in 2005 in Parry v Astral Operations Ltd (supra) the Labour Court held that it did have the necessary jurisdiction to adjudicate disputes where the workplace was outside South Africa, provided that certain requirements are met. However, in Astral Operations Limited v Parry (2008 29 ILJ 2668 (LAC)) the Labour Appeal Court overturned the decision of the Labour Court. Zondo J reasoned that both the Labour Relations Act and the Basic Conditions of Employment Act do not have extra-territorial application in terms of the presumption against extra-territoriality and that, as the workplace was outside South Africa, the Labour Court, which was created by these two acts, did not have jurisdiction to adjudicate the matter. In this article I shall briefly discuss the four-stage private international law process of adjudication that should be followed in disputes where international employment contracts are involved. After that I shall discuss the judgments in Parry v Astral in the Labour Court and the decision in Astral
Operations v Parry in the Labour Appeal Court as well as the effect of this decision. This will be followed by a discussion of the position regarding the jurisdiction of courts and tribunals adjudicating international employment disputes in the European Union, the United Kingdom and in Ontario, Canada. In conclusion, the judgment of the Labour Appeal Court in Astral Operations v Parry will be examined in the light of the constitutional right to fair labour practices and the necessity for employees to be protected in a globalised employment context in which multi-national enterprises operate across borders.