Territorial Jurisdiction

Territorial jurisdiction (the authority of a court to hear and determine a case) and the principles regulating cross-border employment relationships are concepts which are not foreign to South African law.

Given the recent reform in employment models and workplace configuration internationally, it is imperative that both employers and employees understand this concept, more particularly when faced with employment disputes.

The Labour Appeal Court in Mark Sorrel v Petroplan Sub-Saharan Africa (Pty) Ltd 2024 ZALCCT 45 (“Petroplan”) was recently called upon to determine whether the Labour Court erred in finding that it did not have territorial jurisdiction to determine the appellant’s (“Mr Sorrel”) referral to the Labour Court following the termination of Mr Sorrel’s services.

Mr Sorrel entered into an independent contractor agreement with Petroplan (for purposes of determining territorial jurisdiction, the parties agreed that it would be assumed that Mr Sorrel was employed by Petroplan). Petroplan was a company incorporated in South Africa and Mr Sorrel was required to perform the role as Logistics Superintendent for Petroplan’s clients at a gas exploration project in Mozambique. Whilst in terms of the agreement Mr Sorrel was required to render his services physically on-site in Mozambique, COVID-19 as well as complications which he experienced in obtaining a visa resulted in Mr Sorrel working from home on an alternating duty cycle.

According to the Labour Appeal Court, whether the Labour Court has jurisdiction to determine a referral is a factual issue which must be determined with reference to the location of the physical workplace of an employee and not the place where the contract of employment was concluded.

The Labour Appeal Court reiterated the stance adopted by the then appellate division and the Labour Appeal Court in Genrec Mei (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering & Metallurgical Industry & Others 1995 (1) SA 563 (A) and Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC). In both cases, although the employer had a principal place of business and/or operated a business from South Africa, the employees in each instance entered into contracts of employment which required them to perform work outside South Africa.

Similarly, the Labour Appeal Court in Petroplan found that although Petroplan had its principle place of business in South Africa, Mr Sorrel was recruited to perform work on-site in Mozambique in an undertaking which was separate and divorced from the business of Petroplan located in South Africa.

The Labour Court accordingly lacked territorial jurisdiction to determine Mr Sorrel’s referral.

Cross-border employment relationships and territorial jurisdiction may be met with complex considerations and involve legal principles that extend beyond the ambit of this article. Employers and employees are, therefore, encouraged to seek legal advice when entering into cross-border employment relationships.

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Carmen Abboy - Senior Associate

Department: Employment Law?

Telephone number:?031?536 7531

Email address: [email protected]

The content of this document is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive, nor does it constitute legal or other professional advice. You should seek legal or other professional advice before acting or relying on any of the content.

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