Labour Court Clarifies Jurisdiction in Cross-Border Employment Disputes

As the globalisation of workforces accelerates, disputes involving employees stationed abroad but employed by South African entities have raised complex jurisdictional questions. Until recently, South African labour forums such as the Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining councils faced uncertainty over whether they could hear matters where employees live or work overseas but retain contractual ties to South African employers. The Labour Court addressed this in Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131, providing a decisive interpretation.

Central Finding

The judgment makes it clear that jurisdiction in labour matters is not dictated solely by where the employee physically performs their duties. Instead, the nature of the employment relationship, the employer’s legal identity, and the governing legal framework are the determining factors. It further confirms that only the Labour Court has the final say in resolving jurisdictional disputes of this nature.

Case Background

Ms Reena Naidoo had been employed by the Department of International Relations and Cooperation (DIRCO) for over two decades. She was posted to the South African Permanent Mission to the United Nations in New York, where she carried out her duties. Over time, she became domiciled in the United States and was classified by DIRCO as Locally Recruited Personnel (LCP).

When her position was abolished and she was dismissed for operational reasons, Naidoo approached the General Public Service Sector Bargaining Council seeking reinstatement. Her referral was lodged two days late, requiring a condonation application. DIRCO opposed both the condonation and the referral, arguing that her US domicile and LCP status placed her outside the Bargaining Council’s jurisdiction.

A commissioner upheld DIRCO’s objection, declining to consider her condonation request. Naidoo then turned to the Labour Court to challenge this ruling.

Labour Court’s Reasoning

The Court examined the distinction between where duties are carried out and who exercises authority over the employment relationship. It found that Naidoo’s employer was not the Mission as a separate entity, but DIRCO itself, a South African government department bound by domestic labour laws.

The absence of any reference to US law in her contract reinforced the conclusion that South African law governed the relationship. The Bargaining Council’s statutory reach extends nationally to all government departments, regardless of where the work is performed.

The Court referenced the principles set out in SA Rugby Players Association v SA Rugby (Pty) Ltd to reaffirm that the CCMA and bargaining councils cannot conclusively determine their own jurisdiction. This power lies exclusively with the Labour Court.

Furthermore, the Foreign Service Act 26 of 2019 confirmed that the Mission functions under DIRCO’s authority. The Head of Mission reports to DIRCO’s Director-General, meaning all mission staff remain under DIRCO’s chain of command.

The Court also noted that pursuing relief in the US courts would face significant hurdles due to the Foreign Sovereign Immunities Act of 1976, which limits enforcement of foreign judgments against state bodies.

Outcome

The Labour Court overturned the commissioner’s ruling, confirming that the Bargaining Council did have jurisdiction. It ordered that the matter be referred to a different commissioner for a fresh hearing on the condonation application.

Implications for Cross-Border Employment

This decision provides valuable clarity for public sector employees posted abroad and their employers. It establishes that:

Physical location or foreign domicile does not automatically remove South African labour forums’ jurisdiction.
If the employment contract is governed by South African law and the employer is a domestic public entity, the CCMA and bargaining councils may hear the matter.
Jurisdictional disputes must ultimately be settled by the Labour Court.

The ruling strengthens legal certainty in cross-border public service roles, ensuring that employees retain access to South African dispute resolution mechanisms despite being stationed internationally.