Abstract:
With a growth in cross-border employment following the continuous progression in globalisation, the territorial limitations existing in the adjudication of cross-border employment disputes is incongruent to the development of employment and the subsequent employment relationship. The question of adjudication rests
predominantly on the spatial scope of South Africa’s employment statutes. Accordingly, the research exposes the uncertainty employees, who work outside
their places of residence, face when trying to utilise the Labour Court as a channel of legal relief. In doing so, the research reveals the often unsatisfactory and inconsistent judgments arising out of the Labour Court in disputes of this nature. 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 extra-territoriality, the Court has established a practice that, viewed comparatively, contrasts too greatly from foreign methods that utilise private international law in their adjudication of international employment contracts. Important in this research is, thus, the endorsement of private international law principles and methods in place of the current interpretive methods still seen in Labour Court judgments.
In support of this approach, the research argues that private international law is the best method in ensuring legal certainty, predictability and results that are fair, just and fully realise the purpose behind employment rights; to balance out the inherent inequality in an employment relationship, a relationship made more precarious on a global scale.
