Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

• Citation: (2022) 34 SA Merc LJ 181
• DOI: https://doi.org/10.47348/SAMLJ/v34/i2a2
• Published date: 01 February 2023
• Pages: 181-211
• Author: Rinaldi, E.
• Date: 01 February 2023

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PRIVATE INTERNATIONAL LAW IN THE

LABOUR COURT: RE-VISITING

JURISDICTION AND CHOICE OF LAW IN A

CROSS-BORDER EMPLOYMENT DISPUTE

ELISA RINALDI*

Assistant Lecturer, Faculty of Law, University of Pretoria

Abstract

With a growth in cross-border employment, the territorial limitations

placed on the adjudication of cross-border employment disputes is

incongruent to the development of employment and the subsequent

employment relationship. The question of adjudication in the Labour

Court rests predominantly on the territorial scope of South Africa’s

employment statutes. Accordingly, this article exposes the uncertainty

employees, who work outside their countries of residence, face when

trying to utilise the Labour Court as a channel of legal relief. Reasons

for this inconsistency lies in the approach the Labour Court has taken

in determining the territorial reach of South Africa’s employment

statutes. Where the Labour Court has utilised methods of statutory

interpretation and strictly imposed the presumption against extra-

territoriality, the court has established a practice that, in light of the

growing global nature of employment, deviates from the realities of the

de-territorialised flow of labour. Important in this article is thus the

endorsement of private international law principles and methods in

establishing jurisdiction and choice of law in the adjudication of a

cross-border employment dispute.

Keywords: jurisdiction, choice of law, Labour Court, private international

law, conflict rules, territoriality

I INTRODUCTION

An employment dispute may take various forms.

1

An aggrieved party

may either claim on the basis of contract, delict or under the various

* BA Law LLB LLM (Cum Laude) (UP). ORICID iD: 0000–0003–0177–0800.

1

Grusic, ‘The territorial scope of employment legislation and choice of law’ (2012) 75

Modern Law Review 722.

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181 https://doi.org/10.47348/SAMLJ/v34/i2a2

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statutory rights imposed by the legislature.

2

On a domestic level, these

claims do not give rise to issues, such as choice of law or questions

relating to jurisdiction.

3

But when a dispute contains foreign elements,

these issues become pertinent and need answering. Both parties, unless

having pre-emptively expressed an intention, will be searching for the

legal system that will be applicable and the forum they may approach in

the case of a dispute. The nature of a cross-border employment dispute

raises several challenging issues. If not dealt with carefully, these issues

are often conflated and misunderstood. An added complication to

disputes of this nature is that employment may take various forms.

While employees such as airline pilots and the crewmen of ships are

frequently working in different jurisdictions, there are those who may

find themselves working overseas for differing durations.

4

Multinational

companies often send their employees overseas for a fixed period. For

instance, someone may be employed for a specified period at the

London office of an entity incorporated in South Africa.

5

There are

endless scenarios. The growth of gig-economy workers, employed in a

labour market that expands across multiple jurisdictions and legal

systems, illustrates the growing need to re-consider the Labour Court’s

approach in determining jurisdiction and the choice of law in a

cross-border employment dispute.

6

Linked closely, and yet completely distinct from the issue of jurisdic-

tion, is the matter of choice of law.

7

Courts are often faced with

determining which law to apply in the absence of an agreed choice of law

clause. However, while the concern usually rests in determining which

law governs the employment contract, the uniqueness of the Labour

Court as a specialised court blurs the application of choice of law. A

South African Labour Court with jurisdiction can only enforce South

African employment legislation.

8

They cannot apply the foreign law that

parties might have chosen to govern their contract.

9

In attempting to

establish jurisdiction, the Labour Court has, as a result of the inapplica-

2

Grusic, (2012) 75 Modern Law Review 722.

3

Referring to the power of the court to adjudicate disputes involving foreign elements

Forsyth, Private International Law: The modern Roman-Dutch law including the Jurisdiction of

the High Courts 5 ed (Juta 2012) 169.

4

Merrett, ‘The extra-territorial reach of employment legislation’ (2010) 20 Industrial Law

Journal 355.

5

Monare v South African Tourism & others (2016) 37 ILJ 394 (LAC) para 7.

6

Mecs Africa v Commission for Conciliation Mediation and Arbitration (2014) 35 ILJ 745

(LC).

7

Forsyth, (Juta 2012) 316.

8

Monare para 15.

9

Monare para 5.

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