Introduction
In Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (2025) 46 ILJ128 (LAC), the Labour Appeal Court (“the LAC”) provided clarity on the Labour Court’s jurisdiction to determine employment-related disputes of employees who are contracted to render their services at workplaces outside of South Africa.
Mr Mark Sorrell referred an alleged automatically unfair dismissal dispute to the Labour Court claiming that he was unfairly dismissed because he made a protected disclosure.
Petroplan opposed the referral and challenged the Labour Court’s jurisdiction to determine the dispute as Mr Sorrell was contracted to provide the services of a Logistics Superintendent on a gas exploration project site in Mozambique and not in South Africa. Mr Sorrell was furthermore contracted to provide services to foreign clients in Mozambique.
In order to obtain a visa and work permit to perform the service in Mozambique, Mr Sorrell also concluded an employment contract with a Mozambique-based entity which was related to Petroplan.
Due to the COVID-19 pandemic and visa issues, Mr Sorrell performed his duties remotely from his home in South Africa during the months of January, March, May and part of June 2021. Petroplan terminated his contract prematurely because he only obtained a visa and not a work permit by June 2021 as required.
The Labour Court found that it lacked territorial jurisdiction to determine Mr Sorrell’s dispute and struck the matter from the roll. The Labour Court held that “…it is not the place at which the employer conducts its business which determines the place of employment for purposes of jurisdiction but the location of the actual workplace where the employee renders services”.
Dissatisfied with the Labour Court’s decision, Mr Sorrel launched an appeal to the LAC. On 4 October 2024, the LAC upheld the finding of the Labour Court that it lacked territorial jurisdiction to determine the dispute. The LAC’s reasoning can be summarised as follows: –
- The Labour Relations Act 66 of 1995 gives the Labour Court territorial jurisdiction over all the provinces in South Africa;
- Whether the Labour Court has territorial jurisdiction “is a factual issue which is determined with reference to the location of the physical workplace of the employee and not the place where the contract of employment was concluded”;
- Although Petroplan’s temporary employment service (“TES”) business is based in South Africa, it recruited and contracted Mr Sorrell on a temporary contract for “an undertaking” in Mozambique “which was separate and divorced from” Petroplan’s TES business in South Africa; and
- The fact that section 198 of the LRA provides that an employee is employed by a TES (Petroplan in this case) and not by the client of the TES (the Mozambique entity in this case) does not change the fact that one must look at the location of where the person performs their services, as opposed to the location of the TES/employer.
With a globalised workforce employers are frequently being required to deal with the implications of cross-border employment of their employees. In some cases, legislation of the foreign country where the employee performs their services places onerous obligations on employers and employees (such as in Mozambique). Due to South Africa’s favourable employment legislation, employees often seek to lodge claims against their employers in South Africa. Specialist legal advice should be taken when dealing with issues of this nature as a variety of factors are relevant to determine whether the CCMA or the Labour Court have jurisdiction to determine such claims.
