Labour Court clarifies jurisdiction in cross-border employment disputes involving South African public servants abroad

A discussion of Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131. 

Introduction to the Legal Principles

As more South African employees take up roles abroad—especially in government—labour disputes involving foreign postings raise tricky legal questions: Can South African forums like the CCMA or bargaining councils hear these disputes?

In Naidoo v Khosa NO and Others, the Labour Court made it clear: Jurisdiction depends on the legal nature of the employment relationship—not just where the employee lives or works. If a South African entity employs someone under South African law, our labour forums still have authority.

Facts of the Case

• Employee: Ms. Reena Naidoo worked for the Department of International Relations and Cooperation (DIRCO) for 26 years. She was assigned to South Africa’s Permanent Mission to the United Nations in New York.
• Designation: While initially a South African citizen, she later became domiciled in the U.S., leading DIRCO to classify her as Locally Recruited Personnel (LCP).
• Dispute: Naidoo was dismissed for operational reasons and referred an unfair dismissal dispute to the General Public Service Sector Bargaining Council (Bargaining Council), seeking reinstatement.
• Jurisdictional Challenge: DIRCO objected, arguing that since Naidoo was domiciled in the U.S., the Bargaining Council lacked jurisdiction. It also claimed reinstatement was impossible as her position was abolished.
• Ruling by the Bargaining Council: The commissioner upheld DIRCO’s objection, refusing to hear Naidoo’s case.
• Labour Court Review: Naidoo then approached the Labour Court to review the jurisdictional ruling.

Labour Court’s Decision and Key Legal Findings

• The Labour Court rejected DIRCO’s argument, emphasizing that Naidoo was not employed by the Mission as an independent entity—instead, the Mission functioned as an extension of DIRCO, a South African government department.
• The Court found that Naidoo’s employment contract was governed by South African law, with no reference to U.S. law in her employment agreement.
• Bargaining Council’s Scope: The Court reaffirmed that statutory dispute resolution bodies like the CCMA and bargaining councils cannot independently determine jurisdiction with final authority; that role belongs to the Labour Court.
• The Court referenced SA Rugby Players Association v SA Rugby (2008) to support its ruling that jurisdiction depends on the legal framework governing employment, not just the employee’s physical location.
• The Foreign Service Act 26 of 2019 confirmed that DIRCO retained authority over the Mission, reinforcing that Naidoo remained a DIRCO employee.
• The Court also noted that had Naidoo pursued relief in U.S. federal courts, enforcement would be limited by the Foreign Sovereign Immunities Act of 1976, restricting legal action against state entities.
• Final Ruling: The Labour Court found that the Bargaining Council does have jurisdiction and sent the matter back to a different commissioner for reconsideration of Naidoo’s late filing.

Conclusion & Significance of the Judgment

This landmark ruling provides clear guidance on jurisdiction in cross-border employment disputes for South African public servants working abroad. The Court reinforced that jurisdiction is based on the employment relationship’s legal framework, not just the employee’s geographic location. If a South African entity governs the employment contract, local labour forums retain jurisdiction.

Moreover, it confirms that the Labour Court holds ultimate authority in jurisdictional disputes, ensuring legal certainty for employees and employers engaged in cross-border public service roles.