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Constitutional Court decision
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HR Executive Moderator
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Nov 28, 2007 03:28 PST
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Application of PAJA and concurrent jurisdiction of High Court in labour
disputes
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Chirwa v Transnet Limited and Others
Case CCT 78/06
Decided on 28 November 2007
Media Summary
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The following media summary is provided to assist in reporting this case
and is not binding on the Constitutional Court or any member of the
Court.
Constitutional Court handed down judgment in the matter of Chirwa v
Transnet Limited and Others .
This matter deals with issues that had long divided courts and legal
opinion concerning the jurisdiction of the Labour Court and the High
Court to hear certain disputes involving employment and labour
relations. It arose from the dismissal of the applicant, Ms Chirwa, on
22 November 2002. At the time she was employed by Transnet Limited in
the capacity of human resources executive manager of the Transnet
Pension Fund Business Unit. The dismissal was preceded by an enquiry
held by her supervisor, on the grounds of inadequate performance,
incompetence and poor employee relations. Ms Chirwa first challenged her
dismissal in the Commission for Conciliation, Mediation and Arbitration
on the basis that it was procedurally unfair. After conciliation failed,
she did not pursue the labour relations mechanisms further, but rather
approached the High Court on the basis that the dismissal violated her
constitutional right to just administrative action, as given effect to
by the Promotion of Administrative Justice Act (PAJA).
The High Court applied the principles of natural justice and found that
the dismissal of Ms Chirwa was unfair and granted the order for her
reinstatement. Transnet appealed the order to the Supreme Court of
Appeal. The majority of the court upheld the appeal on the basis that
the dismissal of Ms Chirwa did not fall to be reviewed under the
provisions of PAJA.
Ms Chirwa approached the Constitutional Court, seeking leave to appeal
against the decision of the Supreme Court of Appeal. In this Court she
relies on her right to procedurally fair administrative action. The
claim is based on the proposition that since Transnet is an organ of
state, the dismissal of its employee necessarily amounts to an exercise
of public power, which is reviewable under sections 3 and 6 of PAJA. In
the alternative Ms Chirwa relies on section 195 of the Constitution,
which sets out the principles that must guide public administration in
the carrying out of its functions. These include accountability,
professional ethics, fairness and objectivity. This case illustrates
that a dismissal of a public sector employee has given rise to two
causes of action, one under the labour law regime and the other under
the administrative justice regime. Therefore, an additional issue before
this Court is whether the High Court has concurrent jurisdiction with
the Labour Court in matters that arise out of an employment dispute,
such as in the present case.
Skweyiya J decided this matter on the basis of jurisdiction alone. He
held that Ms Chirwa’s claim is based on an allegation of an unfair
dismissal for alleged poor work performance and should therefore have
followed to the end the procedures and remedies under the Labour
Relations Act (LRA), which specifically regulate this type of labour
dispute. He found that the High Court did not have concurrent
jurisdiction with the Labour Court in this matter. First, Ms Chirwa had
expressly relied on provisions of the LRA in formulating her claim in
the lower courts as well as in this Court. Second, an applicant cannot
be in a preferential position, having access to multiple forums, simply
because of her or his status as a public sector employee. He concluded
that if Ms Chirwa were to be allowed to depart from the finely-tuned
dispute resolution mechanisms created by the LRA, a dual system of law
would be perpetuated, one applicable in the civil courts and the other
in the forums established by the LRA. Therefore, to the extent that PAJA
and the LRA overlap, Skweyiya J urges the legislature to revisit the
applicable provisions.
Skweyiya J found that it was unnecessary to decide the question whether
the dismissal amounted to administrative action. If however, this
determination needed to be made, he agreed with the conclusion reached
by Ngcobo J that the dismissal of Ms Chirwa by Transnet does not amount
to administrative action. Finally, Skweyiya J held that Ms Chirwa’s
reliance on section 195 of the Constitution was misplaced. He found that
although the section provides valuable interpretative assistance it does
not found a right to bring an action.
Ngcobo J concurred in the judgment of Skweyiya J, and considered two
further issues. The first was whether the Labour Court had concurrent
jurisdiction with the High Court in the dispute in question; and the
second was whether the conduct of Transnet in dismissing Ms Chirwa
constituted administrative action under the Constitution.
He noted that prior to the enactment of the LRA there were different
statutes governing labour and employment relations. These multiple
pieces of legislation created inconsistency and unnecessary duplication
of resources as well as jurisdictional problems. He held that one of the
primary objects of the LRA is to create a comprehensive framework of law
governing the collective relations between employers and trade unions in
all sectors of the economy. Consistently with this objective the LRA
brings all employees whether employed in the public sector or private
sector under it, except those it specifically excludes.
The other problem associated with the old labour relations regime was of
overlapping and competing jurisdictions and the use of different courts
to adjudicate labour and employment issues. This invariably led to
forum-shopping. A declared purpose of the LRA is to establish the Labour
Court and the Labour Appeal Court as specialised superior courts with
exclusive jurisdiction to deal with matters arising from the LRA.
He further held that the primary purpose of section 157(2) was not so
much to confer jurisdiction on the High Court to deal with labour and
employment relations disputes, but rather to empower the Labour Court to
deal with disputes founded on the provisions of the Bill of Rights that
arise from employment and labour relations. In order to reconcile the
relevant provisions of the LRA and the primary objects of the LRA the
provisions of section 157(2) must be confined to those instances where a
party relies directly on the provisions of the Bill of Rights. In the
present case he found that Ms Chirwa relied upon a breach of the
provisions of the LRA and that therefore the Labour Court had exclusive
jurisdiction.
Ngcobo J held that the conduct of Transnet in dismissing Ms Chirwa did
not constitute administrative action. He therefore concluded that the
dispute between the applicant and Transnet falls within the exclusive
jurisdiction of the Labour Court, and that the High Court did not have
jurisdiction in respect of the applicant’s claim.While previously
administrative law was used to protect labour rights of employees who
were not covered by the LRA, this was no longer necessary as the LRA now
protects all employees including public sector employees and codifies
the right to fair labour practices.
Moseneke DCJ, Madala J, Navsa AJ, Nkabinde J, Sachs J and Van der
Westhuizen J concur in the judgments of Skweyiya and Ngcobo JJ.
Chief Justice Langa, with whom Justices O’Regan and Mokgoro concur,
wrote a separate judgment agreeing with the outcome, but disagreeing
with the reasoning. He did not accept the finding of both Skweyiya J and
Ngcobo J that the High Court did not have jurisdiction. In his view, the
issue had already been decided by the Constitutional Court in an earlier
case and there was no way to distinguish Ms Chirwa’s claim from the
earlier matter. He also found that the various policy concerns expressed
in the majority judgments could not justify departing from the clear
wording of the LRA. The Chief Justice also considered whether Ms
Chirwa’s dismissal amounted to administrative action. He held that it
did not both because there was no legislative source for the decision
and because the dismissal was not the exercise of a public power or the
performance of a public function. For these reasons he agreed that the
appeal should be dismissed.
Best Regards
Gary Watkins
www.workinfo.com | www.caselaw.co.za
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