Sorrell v Petroplan Sub-Sahara Africa (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Lagrange J |
| Judgment Date | 19 January 2023 |
| Citation | 2023 JDR 2623 (LC) |
| Docket Number | C590/2021 |
Lagrange J:
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Background
This is a jurisdictional ruling on whether or not the various claims of the applicant set down for trial fall within the territorial jurisdiction of this court. This particular jurisdictional question was only raised for the first time when the respondent pleaded its prospects of success in a belated condonation application for the late filing of the respondent’s answering statement drafted a few days before trial was due to commence. Prior to that, the only jurisdictional issue raised was whether the applicant was an employee of the respondent. For the purposes of this ruling, it was assumed that the applicant was an employee of the respondent, and accordingly his status in this regard remains undecided.
The applicant, Mr M Sorrell (‘Sorrell’), launched trial proceedings against the respondent (‘PSA’), seeking the following relief:
A declaration that the termination of his services under an ‘independent contractor agreement’ with PSA (‘the ICA’) amounted to his dismissal as an employee of PSA and that such dismissal was either automatically unfair on account of having made a protected disclosure in terms of the Protected Disclosures Act, 26 of 2000 (‘the PDA’) or, in the alternative, substantively and procedurally unfair.
An award of the maximum compensation obtainable in the event of a finding that he was automatically, or otherwise, unfairly dismissed.
Contractual damages in the form of remuneration he claims was due to him for the balance of the fixed term contract, which was terminated prematurely, and consequential damages arising from the termination of the contract.
Insofar as it is found that he was not an employee of PSA, but independent contractor, and order of damages or compensation for suffering an occupational detriment under the PDA.
PSA disputed Sorrell’s claim that he was its employee and maintained he was an independent contractor. This jurisdictional issue was raised in the original pleadings, but the parties had agreed that it could only be decided after all the evidence at trial had been led. Accordingly, for the purposes of
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this ruling it is assumed that Sorrell was employed by PSA, and the only question is whether his claims fall under the territorial jurisdiction of the Labour Court.
The parties agreed that it was necessary to lead evidence on the court’s territorial jurisdiction. Only Sorrell testified. Both parties then made written submissions and presented oral argument.
Brief outline of facts
In December 2020 a consultancy agreement was concluded between Offshore Project Management & Engineering Ltd (‘OFMEL’) and Petro Plan Europe Ltd (‘PEL’), the former company being registered in the British Virgin Islands and the latter in the United Kingdom. In terms of the agreement, OFMEL was to provide the services of a Logistics Superintendent in Mozambique to PEL’s client, Sasol Petroleum Temane Limitada (‘SPTL’) and Sasol Petroleum Mozamabique Limitada (‘SPML’), which are companies registered in Mozambique and the UK respectively. Sorrell was the beneficial owner of OFMEL. Although that consultancy agreement was concluded, it was not implemented owing to legal compliance obstacles.
Instead, on 27 January 2021 the ICA between Sorrell and PSA was concluded. In substance, the services to be provided by Sorrell were the same that would have been provided under the aborted consultancy agreement, with the same job title associated with those services, namely Logistics Superintendent. Previously the post was designated as a Supply Base Manager. Sorrell’s services were terminated by the PSA in a letter dated 24 June 2021.
Pertinent provisions of the ICA and Annexure 1 thereto, which stipulated certain terms the services to be provided were the following:
clause 1.3 of the ICA states:
“This Agreement is dependent on the successful application for a Mozambique and/or South Africa visa if applicable and satisfactory medical examination results. If for any reason this application is unsuccessful or the medical examination results are
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unsatisfactory/unacceptable to the client, this Agreement will be null and void.”
In terms of Annexure 1:
the place where services were to be performed was simply designated as ‘Mozambique’.
‘Working Patterns’ were set out as follows:
“The working pattern shall be flexible. While working from home, working days/hours will be as advised by client and/ or PP.
On mobilisation to Mozambique it is anticipated that the rotation will be 6 weeks on (including 1 week quarantine)/4 weeks off. 4 weeks on/4 weeks off when COVID-19 control measures are no longer required.
Actual rotation and mobilisation date will be confirmed by PP once received from client.”
Annexure 1 made provision for return flights for Sorrell from and to his ‘home base’ for each rotation and he would also be paid for the two days on which he travelled.
Amongst other things, the pre-trial minute records that:
The Applicant performed services in terms of the agreement in respect of a gas exploration project in Mozambique from 1 December 2020 until his services were terminated.
The Applicant’s working patterns were determined in accordance with the provisions of Annexure 1 of the Agreement.
The Logistics Superintendent role was rotational due to the remote and 24/7 nature of the roles on location.
The Applicant shared the Logistics Superintendent role in alternating duty cycles with another person on a roster system.
. . .
The Applicant’ s fee was calculated at USD 1100.00 per day, based on the on the on-duty cycles only.”
In his evidence, Sorrell testified that:
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His ‘ultimate workplace’ was Mozambique, but initially he worked virtually from home in Greyton due to the COVID-19 pandemic and delays in obtaining a Visa and work permit. If he had been able to attend to work physically, he would have done so on site, in Mozambique. Because of the visa complications everyone had to work at home for a while, which he did on the basis of an alternative duty cycle during the months of January, March, May and part of June 2021. His duty cycle alternated with another person, Mr P Botes, with whom he shared the role of Logistics Superintendent.
During that time he largely did off-line work on documents and communicated with his functional manager, Mr M Clark (‘Clark’), the Logistics manager for Sasol, who was based in the UK. In terms of Annexure 1 Clark was the person to whom Sorrell was required to report for duty. He also confirmed that the role of “Logistics Superintendent” was an ‘in-field’ role, and ‘in-field’ meant “while on location (i.e at the gas exploration site) at a remote place”.
The Sasol UK firm was responsible for directing operations at the site.
Sorrell was also required to report to his field operations manager, Mr A Mellor (‘Mellor’). Mellor only got to the Mozambique site early in June 2021.
In his statement of case, Sorrell claimed that when he was on-duty logistics superintendent his primary responsibilities were to ensure the health and safety of all personnel associated with the base.
Legal principles pertaining to the territorial jurisdiction of the court
Before briefly surveying the jurisprudence on the test for determining territorial jurisdiction of the Labour Court, two related issues raised by Sorrell must be dealt with. Firstly, he objected to PSA raising this jurisdictional question as it had never been pleaded, nor recorded in the pre-trial minute. In the event the court ought to decide the issue on the basis of the applicant’s pleadings, and PSA had accepted that the court had jurisdiction.
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Sorrell’s counsel, Mr Kantor, relied on the judgement in Monare v SA Tourism & others (2016) 37 ILJ 394 (LAC), in which the Labour appeal Court set aside a finding of the Labour Court that an arbitrator did not have territorial jurisdiction to determine an unfair dismissal claim. The LAC held:
The court a quo seemingly did not in the context of the facts before it consider the principle that a claimant may formulate his or her claim in a way that...
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