Employees employed in the public service under the old administration were excluded from the scope of the 1956 Labor Relations Act. See section 33(5)(a) of the Interim Constitution and section 24(1) of the Constitution of the Republic of South Africa, 1996.
Public sector employment framework
It could be argued that the situation changed with subsequent developments in labor law, the LRA and the enactment of the Constitution. 52 However, the exact meaning and scope of the right to "fair labor practice" is not defined in the 1996 Constitution of the Republic of South Africa.
Administrative law in the context of public sector employment
Respondents argued, inter alia, that the dismissals were not subject to review within the meaning of the Administrative Justice Promotion Act 3 of 2000, as their actions did not constitute an administrative action as defined in the terms of this Act. In addition, any legal action must be in accordance with Article 7 of the Administrative Justice Promotion Act 3 of 2000, in that the review procedure must commence within 180 days after an administrative action/decision has been taken and that all domestic remedies must be tightened first. exhausted. 83 See the discussion in footnote 42 ibid for the remedies available in terms of the LRA and footnote 80 ibid for a discussion of the remedies available under PAJA.
Where the right to fair administrative action is in conflict with the right to fair labor practice, the LRA must take precedence under section 210 of the LRA. When PAJA was enacted (seven years after the LRA and five years after the Basic Conditions of Employment™0), it was promulgated without the legislature amending either section 210 or section 157(2) of the LRA. Regarding the first approach, the resolution of employment disputes should be regulated and resolved exclusively through the LRA and the right to fair work.
The question that now arises is whether the LRA will be the absolute law in all employment-related matters and whether this was in fact the intention of the legislature.
Applying the Labour Relations Act 66 of 1995 and the Promotion of Administrative Justice Act 3 of 2000 through case law
The plaintiffs argued that the change to the guarding system was drawn from section 24(1) of the Police Service Act 68 of 1995 and the decision thus constituted a public authority which could be tried while it. It was also pointed out that one must be aware that collective bargaining negotiations aim to achieve equality between the employer and its employees, and that the public servants are thus treated on an equal footing with their employers. This effectively means that public servants' right to administrative proceedings under PAJA in dismissal disputes disappeared through the enactment of the LRA.
Ngcobo J held that the conduct in this case did not amount to administrative action as the nature of the power involved was purely contractual and did not involve "the implementation of legislation which. This case concerned the scope of the High Court's jurisdiction to determine employment related complaints They approached the High Court claiming that their right to equality under Article 9 and their right to fair administrative action under Article 33 of the Constitution had been violated.
166 Section 157(2) deals with the concurrent jurisdiction of the High Court when there is a breach of a constitutional right when dealing with public sector employers.
The position after Chirwa v Transnet Ltd & Others [2008] 2 BLLR 97 (CC)
High Court's approach after the Chirwa-judgment
The question that our courts are now dealing with, especially the High Court, is whether disputes arising from employment relationships in the public sector could ever again fall within the framework of administrative law. The majority in Chirwa v Transnet Ltd & Others [2008] 2 BLLR 97 (CC) held that the High Courts are divested of jurisdiction when the case is found to be an employment matter, while the minority held that the High Court will only be deprived its jurisdiction when it falls under the exclusive jurisdiction of the labor court. In this case, the appellant was unsuccessful in his application for promotion and subsequently approached the High Court to have the appointment process set aside, as his right to fair administrative action was allegedly infringed.
The court followed the reasoning in the Fredericks decision and distinguished it from the C/wVwa decision in that the applicant did not rely on the LRA.184 The court therefore held that the applicant in this case had a choice; (1) to approach the CCMA under the LRA; or (2) appeal to the Supreme Court relying on his constitutional right to fair administrative action.185. The respondents, relying on the majority decision in Chirwa, contended that the High Court lacked jurisdiction as the matter had to be referred under the LRA. The court, per Froneman J, held that the conduct of the respondent Department constituted unlawful administrative action.
What is clear from these two judgments is that the employees directly invoked their administrative law rights and did not invoke the LRA at all.
Furthermore, it was held that the courts could give more substance to the right to fair labor practices by "recognizing and giving due expression to the interrelationship" between the right to fair labor practices and other rights constitutional, such as the right to fair administrative action. 189. 34; separate" can be found in the Constitutional Court's decision in Government of RSA and others v Grootboom & others4, where the court expressly held that "all rights in our Bill of Rights are interrelated and mutually supportive."195 Also in National Coalition for Gay & Lesbian Equality v. Minister of Justice™, the Constitutional Court held that constitutional rights cannot be seen as separate and indivisible. Thus, it is clear that the Constitutional Court itself decided that when two or more constitutional rights are at stake, they must mutually support each other, only to later rule in judgment C/7/Vwa that the right to fair labor practices, as enshrined in the LRA, will override the right to fair administrative action, as enshrined in PAJA, when it comes to public sector employment disputes.
In Mbayeka & Another v MEC for Welfare, Eastern Cape199 the court held that the department took unconstitutional administrative action by suspending the applicant without a hearing; however, as argued by Ngcukaitobi, 200 suspension is a temporary action taken by employers against their employees. In relation to promotions, the LRA makes it clear that any irregular or unfair conduct will constitute an unfair labor practice.201 In United National Public Servants Association of SA v Digomo NO & Others™2 the SCA held that a decision to promote constitutes an administrative act , that could be unreasonable, illegal and procedurally unfair. The court argued that the department had a statutory duty to fulfill in relation to correctional services and that the hiring and promotion of its correctional officers amounts to a public function.
Plasket J held that the department's refusal to appoint the claimant was an administrative act and that the department must therefore give reasons for its decision.204.
International perspective
In Germany, they make a distinction between public sector employees and divide them into three categories, namely Bempte, Angestellte (white-collar employees) and Arbeiter (blue-collar employees). In the Austrian public services, employees generally enjoy greater protection against dismissal than employees in the private sector.227. 224 Employees in the public sector have direct rights under European directives, provided that the deadline for domestic implementation has passed and that the directive.
Employees in the public sector recently enjoy a more favorable legal framework, particularly with regard to the laws governing collective bargaining. It can therefore be argued that countries are not prohibited, at least by the ILO, from adopting divergent remedies and legislation in relation to its public sector and private sector employees. This thesis argues that it is precisely for this reason that differential treatment of employees in the public sector can sometimes be justified and that there are two laws that apply to the public.
In the US, public sector employees had the benefit of the protection of civil service legislation.
Conclusion and Recommendations
The majority appear to have based their judgment solely on the notion that the claim fell squarely within the ambit of the LRA, whereas, on the facts of this particular case, Chirwa relied primarily on her rights under PAJA. Furthermore, it is respectfully submitted that the court failed to comply with its constitutional duty as stipulated in Article 39 of the Constitution. However, the reasoning in POPCRU suggests that the concept of public authority should not be limited to the public interest given the fact that some administrative actions may not have an impact on the public.
The majority in Chirwa further held that the courts should not grant more rights to public sector employees and that forum-seeking should not be allowed as it directly conflicts with the objective of the LRA – to establish a uniform and simple dispute resolution system. The Legislature will need to revisit section 157(2) of the LRA, which provides for concurrent jurisdiction in constitutional matters arising from employment and labor relations, by specifically stating that revisions to public sector labor disputes must be brought separately to the Labor Courts. SAPU and another v National Commissioner of the South African Police Service and another [2006] 1 BLLR 42 (LC).
Olivier M "Reshaping Private and Public Employment in South Africa: The Impact of the Constitution and the Bill of Rights Speculum Juris 215. Van Eck 2006 The Dismissal of Public Service Employees: Applicability of the PAJA [found on the web ] HYPERLINK www.llc.orq.za [Used date 29 October 2008] Martin R 2008 Case of the week: Enforcing EU law against public sector employers [Found on the web] HYPERLINK www.personneltodav.com [Used date 28 October 2008 ].
