By Riaan de Jager
Imagine being approached for advice by Ms X, a locally recruited secretary of the Ambassador of Argentina, or by Mr Y, the chauffeur of the Executive Secretary of the African Commission on Nuclear Energy (AFCONE), after they have been dismissed. Will Ms X and Mr Y be able to enforce their employment rights against these foreign missions at the Commission for Conciliation, Mediation and Arbitration (CCMA)?
The Department of International Relations and Cooperation (DIRCO), in particular its Directorate: Diplomatic Immunities and Privileges attached to the Branch: State Protocol and Consular Services, are often faced with these types of scenarios. They mostly involve unfair dismissal disputes that are lodged at the CCMA by former, locally recruited employees against diplomatic and consular missions, representing the sending state (foreign state), and international organisations such as AFCONE or the United Nations (UN).
In order to highlight the apparent shortcomings in the law with which Ms X and Mr Y will be faced, reference will firstly be made in this article to situations where a foreign state is the employer, thereafter the employment disputes involving international organisations will be explained. Lastly, DIRCO’s particular role will be examined in an attempt to assist locally recruited employees to resolve their disputes in an informal, amicable and speedy manner.
Foreign states
The procedure to serve legal process on foreign states is regulated by s 13(1) of the Foreign States Immunities Act 87 of 1981 (the Act), as well as r 5(1) of the Uniform Rules of Court and was addressed in more detail in an earlier article (see Riaan de Jager ‘Diplomatic law: Service of process on foreign defendants’ 2017 (Dec) DR 34).
The question that arises for determination is whether the referral of Ms X’s unfair dismissal dispute to the CCMA, under the provisions of the Labour Relations Act 66 of 1995 (LRA) can also be served on the Argentine Government in Buenos Aires in terms of the Act or r 5(1).
In an unanimous judgment, albeit with reference to s 15(1) of the Prescription Act 68 of 1969, the Labour Appeal Court (LAC) held in Food and Allied Workers Union obo Gaoshubelwe and Others v Pieman’s Pantry (Pty) Ltd [2016] 12 BLLR 1175 (LAC) at para 55 that a referral is not a ‘process … whereby legal proceedings are commenced’, since a referral merely obliges the CCMA to intervene in a dispute, to conciliate and thus avoid legal proceedings. In Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and Others 2017 (4) BCLR 473 (CC) the Constitutional Court also had an opportunity to determine this issue, again with reference to s 15(1) of the Prescription Act. The court was, however, divided in that Froneman J (with whom Madlanga J, Mbha AJ and Mhlantla J concurred) ruled that a referral under the LRA does constitute a ‘process’ (see paras 75 and 82), while Zondo J, on the other hand, came to a contrary conclusion (see para 140). However, because of the parity of votes, in which none of the judgments secured a majority, no binding ratio decidendi emerged from the court’s decision. The LAC’s judgment in the Gaoshubelwe case thus remains the binding precedent at present.
Since a referral under the LRA has been held not to constitute a ‘process’, I submit that the procedure prescribed by s 13(1) of the Act and r 5(1) of the Uniform Rules of Court will not apply. Ms X’s referral will thus be served on the Embassy of Argentina through the Directorate: Immunities and Privileges of DIRCO under cover of a diplomatic note or note verbale, since the embassy represents the interests of the Argentine Government in South Africa (SA).
The proceedings at the CCMA are governed by its Conduct Rules. In terms of r 13(1), the parties must attend a conciliation in person, irrespective of whether they are represented, while r 13(2) states that, if a party is represented at the conciliation but fails to attend in person, the commissioner may either continue with the proceedings, adjourn or dismiss the matter by issuing a written ruling. Rule 13(3) sets out what the commissioner should take into consideration when exercising their discretion.
Rule 14 is of particular relevance since it provides that, if it appears during conciliation proceedings that a jurisdictional issue has not been determined, the commissioner must require Ms X, as the referring party, to prove that the CCMA has jurisdiction to conciliate her dispute.
Rule 25(1)(a) could, however, pose difficulties, since it provides that parties in conciliation proceedings may only be represented by a director or employee of that party or by a member, office bearer or official of a registered trade union or employer’s organisation. Legal practitioners are not allowed to represent a party during conciliation proceedings. This rule was found to have passed constitutional muster in Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal) [2013] 11 BLLR 1057 (SCA).
In con-arb and arbitration proceedings, a party is also required to appear in person. Moreover, legal practitioners may, pursuant to r 17(7), only represent a party in unfair dismissal disputes relating to an employee’s conduct or capacity under exceptional circumstances.
It is beyond dispute that Ms X’s dispute cannot proceed to arbitration or adjudication if the dispute is not entertained at the conciliation stage. The effect hereof is that the Argentine Ambassador or one of the other diplomats, as the representatives of the foreign state, would technically be required to appear in person at the conciliation proceedings to represent the employer, the Government of Argentina. However, this is in conflict with the immunity from the civil and administrative jurisdiction, which these diplomatic agents enjoy pursuant to art 31.1 of the Vienna Convention on Diplomatic Relations of 1961. It, therefore, follows that the embassy will most likely rightly refuse to partake in the conciliation proceedings.
Under such circumstances, the CCMA commissioner could, in terms of r 30(1)(b)(i), continue with proceedings in the absence of the Argentine diplomats, although they will only issue an advisory award, which is non-binding and unenforceable in terms of s 143(1) of the LRA. This, in effect, leaves Ms X without an enforceable remedy which is a severe shortcoming.
International organisations
What will Mr Y’s position be? In terms of international law, service of process cannot be effected on international organisations, since they enjoy immunity from every form of legal process, unless their immunity from suit is expressly waived in a particular case. It is, therefore, not possible to serve the referral formally on such organisations. For more detail in this respect, refer to De Jager (op cit).
Although Mr Y’s employment will be governed by the LRA, it is the established practice of international organisations not to appear in local courts or tribunals of member states in order to assert their privileges and immunities. Instead, the assertion of their immunity is done in a written communication to the Ministry of Foreign Affairs of the state concerned, requesting it to take the necessary steps to inform the appropriate office of government (usually the Ministry of Justice) to appear or, otherwise, move the court to dismiss the suit on the grounds of the organisation’s immunity. This practice was supported, inter alia, by the International Court of Justice in its advisory opinion in the Case concerning the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICT, 29 April 1999 referred to as the the so-called ‘Cumaraswamy case’, regarding the UN.
Should Mr Y attempt to involve the CCMA in his employment dispute, DIRCO will be under an international law obligation to alert the CCMA to AFCONE’s absolute immunity from suit with the result that the CCMA will decline to entertain the dispute due to a lack of jurisdiction. Mr Y will, accordingly, also be without a remedy.
The involvement of DIRCO
DIRCO, in consultation with the Department of Labour, in particular the Director of the CCMA, has implemented a policy regarding the management of diplomatic immunities and privileges (DIRCO’s Policy) which, in part 5 thereof, deals with unfair dismissal disputes involving locally recruited employees employed by foreign missions in SA. The Policy is obtainable on DIRCO’s website at www.dirco.gov.za.
Paragraph 5.2 of DIRCO’s Policy provides for the following steps, which Ms X should take under the circumstances – it does not, however, apply to international organisations due to its absolute immunity from all legal process. These steps are:
Ms X should refer her dispute directly to the CCMA and indicate the nature of the dispute without, at this stage, having to submit proof that the referral form has been served on the Argentine Embassy.
The CCMA will take down a statement from Ms X and submit it to DIRCO with the referral in the prescribed format to be presented to the embassy.
The Director: Immunities and Privileges of DIRCO, in consultation with the relevant bilateral desk and DIRCO’s State Law Advisers (International Law), will summon the Deputy Head of the embassy for consultations and present a diplomatic note or note verbale to them to which the referral and Ms X’s statement are attached. In the diplomatic note, State Protocol formally brings the dispute to the attention of the embassy with a request to do everything reasonably possible to resolve the dispute amicably in compliance with the law, setting a timeframe (usually 30 days) within which to respond. The CCMA and the relevant bilateral desk will be kept informed.
In the event of non-compliance by the embassy, the matter could be escalated to the Chief of State Protocol when a second and final note verbale is handed over personally to the Head of the Mission.
State Protocol shall provide the CCMA with a written confirmation that the referral had been properly delivered to the Head of the Mission.
On receipt of the response from the embassy, DIRCO will forward the response to the CCMA who will evaluate the statements of both parties and, should the CCMA determine that Ms X’s claim has merit, an advisory arbitration award will be issued and forwarded to DIRCO for submission to the embassy under cover of a note verbale.
Although DIRCO has no authority to become involved in the merits of employment disputes, it mainly plays a facilitating role to ensure proper service of the referral on foreign states. The Directorate: Diplomatic Immunities and Privileges of DIRCO could, if necessary, intervene through the diplomatic channel to attempt to resolve a dispute amicably. These measures have proven to be successful in the majority of cases. However, should a foreign state or an international organisation refuse to cooperate, Ms X and Mr Y will have no other recourse.
It is accordingly evident that being employed by foreign states and international organisations in SA has inherent risks, which most locally recruited employees are not aware of when accepting offers of employment at such institutions.
Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (RAU) is a Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (International Law) in the Department of International Relations and Cooperation in Pretoria.
This article was first published in De Rebus in 2018 (Jan/Feb) DR 24.
