Explainer | Digital nomads: How SA labor laws impact foreign employers, employees and remote workers | Jobs

In the modern world of employment, where South Africa is rapidly becoming recognized as the destination of choice for remote workers, it says foreign employers need to be careful to align their employment contracts with the appropriate legal structure. bradley workman davis.

The Labor Relations Act (LRA) regulates, among other important functions, the rights of employees whose employment contracts have been terminated and provides for the referral of disputes to the Commission for Conciliation, Conciliation and Arbitration (CCMA) upon receipt of such disputes. We give our employees the right to This is the news.

However, the position of employees, who must rely on legal protection under labor law within the framework of diplomatic immunity, remains fragile given the limitations on employment rights, and recent cases in the CCMA demonstrate that the mere fact of It has been proven that. Just because an employee works in South Africa does not mean that the employee will have recourse to her LRA or other South African labor laws in the event of an employment dispute.

This can be seen in the following cases: Picha v United States [2023] (“Pitiya”), the court had to decide whether an employee employed by a diplomatic or consular employer is entitled to refer a claim for damages for unfair dismissal to the CCMA. In this case, Ms. Picha was part of the U.S. diplomatic mission to South Africa and was employed as a visa assistant at the consulate, which is part of the U.S. Department of State.

Consulates assist with documentation regarding U.S. national status and the issuance of visas to non-U.S. nationals. Picha’s role included a variety of duties, including receiving, reviewing, and processing nonimmigrant and immigrant visa applications, and providing information to applicants, government officials, and members of the U.S. mission regarding data entry and visa printing. .

Mr. Picha was dismissed from his position at the US diplomatic mission to South Africa, and, dissatisfied with his dismissal, he referred a claim for payment of money due to his dismissal to the CCMA. However, the CCMA arbitrates unfair dismissal disputes on the basis that the applicant’s employment is directly related to the sovereignty of a foreign state and the employer enjoys his immunity under the Foreign Immunities Act No. 87 of 1981. The court ruled that it did not have jurisdiction to do so. ”).

After review in the Labor Court, it was found that the CCMA Commissioner’s reasoning was correct in determining that the Act deprived the CCMA of its jurisdiction.

The Labor Court considered the Act and clarified that, in terms of article 1(2)(b) and (c), the legal immunity granted to foreign countries includes “foreign governments” and “any branch of government”. It was held that it is stipulated. ) law. Importantly, the Labor Court recognized that the Act provides: “foreigner The State shall be exempt from the jurisdiction of the courts of the Republic except as provided in this Law or in the proclamations issued thereunder. ” and the court is required to:The immunity provided by the Act remains valid even if the foreign country does not appear in the proceedings in question. ”

However, it is worth noting that there are exceptions to the above rules applicable to employment contracts, where:

  • The employment contract was concluded in the Republic or the work is to be performed in whole or in part in the Republic.
  • At the time the contract was entered into, the individual was a South African national or ordinarily resident in the Republic.and
  • At the time the lawsuit is filed, the individual is not a national of the foreign country;
  • In that case, South African law will in fact apply.

However, this exception does not apply if the parties to the contract agree in writing that the dispute or disputes related to the contract will be referred to a foreign court or that the proceedings relate to the employment of the head of foreign affairs. yeah. Applies to the employment of a mission or a member of its diplomatic, administrative, technical or service staff, or a consular director or a member of the labor, trade, administrative, technical or service staff of a consulate.

In light of the above, the court found that Pitiya “was a consular, labor, trade, administrative, technical or service official” in his capacity as a visa assistant.This was within the scope of the exemption and the CCMA and the Labor Court did not have jurisdiction to entertain the inquiry on the basis that the employer enjoyed immunity.

This case is important in confirming the principle that the mere physical presence of an employee in South Africa does not necessarily mean that South African labor law applies.inside Picha In this case, this was due to the fact that the employee was within diplomatic immunity.

However, this action is also recognized by South African law and points to and recognizes a more general identity that does not rely on one of the parties being a diplomat or consular official. and that the parties to the employment contract consent to the application of the foreign legal system, submit to the jurisdiction of the foreign legal system, and that there are sufficient other factors to indicate that the foreign legal system, and not South Africa’s, is at fault. This is a case in point. The more closely tied the employment relationship is, the more South African law may not apply, even if the workplace is in South Africa.

This is particularly important for foreign employers seeking to hire or send their workforce to South Africa, especially in the modern employment world where South Africa is rapidly becoming recognized as the destination of choice for remote workers. Although care has been taken to align employment relationships with the correct foreign legal system, it is not necessary that South African labor law always apply to employment relationships.

Bradley Workman-Davies is a director and labor law specialist. Worksman’s Lawyer.

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