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On the 7th of October '09 the Constitutional Court handed down judgment in this matter. This was an eagerly awaited judgment as the Constitutional Court was expected to clarify its position expressed in Chirwa v Transnet as well as its 2002 decision in the matter of Fredericks and Others v MEC for Education and Training, Eastern Cape and others.
The crisp issue
Mr Gcaba disputed his non appointment to the post of station commissioner for Grahamstown. He initially referred a dispute to the Safety and Security Sectoral Bargaining Council but withdrew the dispute and approached the High Court with an application to review the decision of the employer not to appoint him. He brought this application in terms of the Promotion of Administrative Justice Act (PAJA). (The facts appear very similar to that in the Chirwa case)
The court had to decide whether the failure to appoint Gcaba was administrative action and whether the High Court correctly decided that it did not have jurisdiction to hear the matter.
What did the Court decide in this matter?
The court unanimously confirmed the following:
• That the conduct of the State in its capacity as an employer does not constitute administrative action in terms of PAJA.
• Where an employee alleges non-compliance with the provisions of the LRA, he or she must seek a remedy provided for in the LRA.
• Where legislation exists that gives effect to constitutional rights, a litigant cannot bypass that legislation and rely directly on a constitutional right. For example, a litigant cannot rely on the constitutional right to fair labour practices directly where the LRA gives effect to that right.
• The court’s earlier decision in the Fredericks case was distinguished from that in Chirwa on the basis that in that case the applicants did not base their claim on any LRA right. The court found that this was not the case in Chirwa or in the present matter.
• The non-appointment of Gcaba did not constitute administrative action but was clearly a labour- related issue.
• The High Court was correct in deciding that it had no jurisdiction to hear the matter as the conduct complained of did not constitute administrative action. Mr Gcaba should thus have approached the Labour Court.
What does this mean for public sector employers and employees?
This judgment appears to indicate that there are very few, if any, instances where decisions of the state in its capacity as an employer will be viewed as administrative action. Employees wishing to challenge decisions or conduct of the state in its capacity as an employer must therefore rely on their remedies contained in the LRA and go to the Labour Court.
The court did however indicate that the LRA does not intend to destroy causes of action or remedies. Where an employee has a remedy in other courts like the High Court or Equality Court, she may approach these forums. The court acknowledged that the Labour Court, being a creature of statute, can only deal with selected remedies and does not have the power to deal with common law or other statutory remedies. This means that an employee might still be able to approach the High Court with a breach of contract claim instead of for instance an unfair dismissal or unfair administrative action claim.
Conclusion
The debate it seems is far from over. Whilst this judgment may raise further questions and issues of concern, the court’s response is that in the case of fairly new legislation based on a young constitution this is perhaps understandable. The court reminds us that our jurisprudence needs to develop along with the insight and wisdom emerging from a debate over some time. But where this leads to uncertainty or unsatisfactory situations, the legislature can also intervene.
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