CHAPTER 3: ANALYSING ADMINISTRATIVE LAW APPLIED IN LABOUR CASES
3.2 PUBLIC- SECTOR EMPLOYMENT AND ADMINISTRATIVE ACTION CASES
3.2.1 Fredericks and others v MEC for Education and Training, Eastern Cape and others
O’Regan J, writing for a unanimous majority,258 handed down judgment concerning the scope of the jurisdiction of the HC to determine certain complaints arising out of an employment relationship. The applicants were teachers employed by the Department of Education in the Eastern Cape. They had applied to be voluntarily retrenched by the department. However their applications were refused. The applicants sought to challenge the refusal in the Eastern Cape HC, arguing that the refusal constituted a breach of their right to equality in terms of
257 2002 (2) SA 693 (CC).
258 Chaskalson CJ, Langa DCJ, Ackermann J, Kriegler J, Madala J, Sachs J, Yacoob J, Du Plessis AJ and Skweyiya AJ concur in the judgement of O’Regan J.
section 9 of the Constitution as well as a breach of their right to administrative justice in terms of section 33. A full bench of the HC held that it did not have jurisdiction because the LRA had ousted their jurisdiction.
The Constitutional Court
The two questions identified by the CC were, firstly, whether the applicants’ claim raised a constitutional matter as contemplated by section 167 and 169 of the Constitution. If the answer was in the affirmative, the second question to be answered was whether it was a matter that fell within the jurisdiction of the HC.
O’Regan J held that applicants’ claim raised a constitutional matter as they alleged that the conduct of the respondents was in conflict with the Constitution and invalid as it infringed on the Bill of Rights.259 Moreover, the judge stated that ‘the question as to whether the LRA has by virtue of section 169 restricted the HC’s jurisdiction to determine a constitutional matter is therefore a constitutional question that falls within the jurisdiction of this constitutional court.’260 In essence, ‘given the express constitutional provision conferring jurisdiction to determine constitutional matters on the High court…the question restricting the HC’s jurisdiction in terms of section 169 in constitutional matters is therefore also a constitutional matter.’261 O’Regan J established that the issue before the court was a constitutional matter, and therefore the next question is whether the matter now fell within the ambit of the HC’s jurisdiction.
a) Jurisdiction
In answering the second question, O’Regan J held that in terms of section 24 of the LRA, the jurisdiction of the HC was not ousted as section 24 only confers on the LC the power to review Commission for Conciliation, Mediation and Arbitration (hereafter CCMA) decisions and not the power to determine a dispute; therefore the CCMA is not a court of similar status to the HC.262 In coming to this conclusion, O’Regan J focussed on section 169 of the Constitution, which provides that the HC ‘may decide any constitutional matter’ other than a matter that falls within the exclusive jurisdiction of the constitutional court or a matter ‘ assigned by an Act of Parliament to another court of a status similar to a HC.’263 O’Regan J
259 Fredericks (note 257 above) para 11.
260 Ibid.
261 Ibid.
262 Ibid para 31; para 35.
263 Ibid para 31.
held that, as indicated above, the CCMA is not a court of similar status to that of the HC, and that therefore section 24 of the LRA does not assign to another court of similar status to a HC a constitutional matter that the HC would otherwise have the power to decide.264
O’Regan J held that the preamble to the LRA makes it plain and clear that the purpose of the Act is to give statutory effect to the right to fair labour practices entrenched in section 23(1) of the Constitution, however O’Regan J correctly points out that the case before it was not based on contract or their right to fair labour practices as the applicants expressly disavowed any reliance on section 23(1).265 The matter before the court was based on their constitutional right to administrative justice and equal treatment as pleaded. It is important to observe at this point that jurisdiction is determined based on pleadings. Although the applicants had disavowed any reliance on the right to fair labour practices and opted to proceed based on administrative justice and equality, O’Regan J found it necessary to consider whether the HC had the jurisdiction to determine a dispute arising out of an employment relationship.
Legislature’s intention on Jurisdiction
In terms of section 157(1) of the LRA, the legislature provided that the LC shall have exclusive jurisdiction over all matters that ‘are to be determined’ by it in terms of the LRA or other legislation.266 O’Regan J held that section 157(1) therefore ‘has the effect of depriving the HC of jurisdiction in matters that the LC is required to decide except where the LRA provides otherwise.’267 O’Regan J relied on the sentiment expressed by Nugent JA in Fedlife that
‘…section 157(1) does not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the relationship between employer and employees.’268
The legislature’s intention under section 157(1) was not to ‘afford general jurisdiction to the LC in employment matters, moreover the jurisdiction of the HC is not ousted by section 157(1) simply because a dispute falls within269 the overall sphere of employment relations.’
264 Ibid; at para 33 O’Regan J held the ‘effect of the conclusions, that section 24 of the LRA does not oust the High court’s jurisdiction, is not however that a person who has a constitutional complaint arising out of the interpretation or application of a collective agreement may not take the matter to the CCMA. Nor does it mean that the CCMA should not consider the provisions of the Constitution in the exercise of its powers. Indeed like all organs of state it is obliged to seek to give effect to constitutional commitments’.
265 Ibid paras 32 and 34.
266 Ibid para 36; see para 39 where O’Regan J outlines briefly those circumstances where the LRA provides generally that disputes must first be referred to conciliation or mediation or arbitration before the labour court can review.
267 Ibid para 38.
268 Ibid.
In terms of section 157(2), O’Regan J held that ‘where a challenge based on constitutional rights arises based on the states conduct in its capacity as employer, the labour court has jurisdiction concurrent with the High court.’270 Significantly it was held that ‘whatever else its import, section 157(2) cannot be interpreted as ousting the jurisdiction of the High Court since it expressly provides for concurrent jurisdiction.’271 As for section 158(1)(h), O’Regan J held that it does not expressly confer upon the LC constitutional jurisdiction to determine disputes already provided for under section 157(2).272
b) Administrative Action
The finding as to whether the HC had jurisdiction is informative, however the question as to whether dismissals of public sector employees constitute reviewable administrative action remained open and unanswered. One possible reason for this is the effect of disavowing any reliance to section 23(1) of the Constitution and its associated legislation so that answering this question is superfluous given that the finding of this matter is to be adjudicated as pleaded.
After Fredericks, the SAPU judgment handed down by the LC dealt with whether a decision made by the Minister in changing the shift system amounted to administrative action. The SAPU judgment becomes relevant because the court applied section 33 and the PAJA enquiry in determining the nature of the decision. In doing so, the court also provideds clarity as to the meaning of ‘external legal effect’.