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

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 extraterritoriality, 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.