The inter-relationship between administrative law and labour law : public sector employment perspectives from South Africa

• Pages: 319-346
• Published date: 01 January 2015
• Author: Marius Olivier,Avinash Govindjee
• Date: 01 January 2015
• DOI: 10.10520/EJC197719

T h e i n t er-relationship b e t w e e n

administrative law and labour law: Public

sector employment perspectives from

South Africa*

Marius Olivier**

Avinash Govindjee***

Abstract

The legal position of public sector employees who challenge employment decisions taken

by the state or organs of state in its/their capacity as employer in South Africa has long

been problematic. Even though at least four judgments by the Constitutional Court of

South Africa have considered whether employment-related decisions in the public sector

domain do or could amount to administrative action and whether administrative law and/or

labour law should be applicable for purposes of dispute resolution, legal uncertainty

remains the order of the day due to a combination of factors. The authors assess whether

(and to what extent) the rich South African administrative-law jurisprudence remains of

importance in relation to the public employment relationship, bearing in mind the applicable

legal considerations, including the inter-relatedness, interdependence and indivisibility of

the range of applicable fundamental constitutional rights. Considering the debate in other

jurisdictions on this issue, the authors develop a paradigm for s ituating different

employment-related disputes as matters to be decided on labour and/or administrative-law

principles in South Africa. This requires an appreciation, to the extent relevant, of the

unique nature public sector employment relationships and a detailed investigation of the

applicable legal sources and precise parameters of the cases already decided in the

The authors acknowledge the research assistance of Miss L Chamberlain, final year LLB student

*

in the Faculty of Law, NMMU.

Adjunct-Professor, Faculty of Law, University of Western Australia; Extraordinary Professor,

**

Faculty of Law, Northwest University, South Africa; Director: International Institut e for Social Law

and Policy [olivier@iislp.net.au ; olivier@isl-p.org]. Cons ulting Attorney: Cliffe Dekker Hofmeyr.

Professor of Law, Head of the Depart ment of Public Law and Deputy Head of the Labour and

***

Social Security Law Unit, Faculty of Law, Nels on Mandela Metropolitan University

[avinash.govindjee@nmmu.ac.za]; Part-time Senior Commissioner of the Commissi on for

Conciliation, Mediation and Arbitration.

320 (2015) 30 SAPL

country. The position of employees deliberately excluded from the sc ope of labour

legislation is analysed, for example, as is the legal position of high-ranking public sector

employees. The outcome of the investigation is important for determining the legal

principles to be applied in cases involving public sector employees in their employment

relationship, and for purposes of determining the question of jurisd iction. Recent cases,

for exam ple where the courts have permitted the state, as employer, to review its own

disciplinary decision (via a state-appointed chairperson of a disciplinary hearing) on the

basis that this amounts to administrative action which is reviewable, are also examined in

the light of the uncertainty regarding the precise nature and scope of the review.

1 Introduction

The legal position of public sector employees who challenge employment

decisions taken by the state or organs of state in their capacity as employer in

South Africa has long been problematic. Even though at least f our decisions of

the Constit utional Court of South Africa (Fredericks, Chirwa, Gcaba and

Khumalo) have considered whether employment-relat ed decisions in the public

sector domain do, or could, amount to administrative action and whether

administrative law and/or labour law should be applicable for purposes of dispute

resolution, legal uncertainty remains the order of the day. This is due to a

combination of factors, including –

• the debatable scope of the directly applicable constitut ional rights;

• the impact of other public service-specific co nstitutional provisions;

• the ambit of constitutionally mandated financial and other action and

processes relevant to the public sector;

• the constitutionally prescribed development of the com mon law;

• legally sanct ioned employer managerial and executive decision-taking

prerogatives impacting on the employment context and labour relations

sphere in the public service;

• the manner in which the applicable legislation has been drafted and the

statutory retention of (administrative law) common-law jurisdiction to

review decisions taken and acts performed by the State in its capacity as

employer; and

• the approach of the Constitutional Court itself, and the way in which the

Labour Court, the Labour Appeal Court, the High Court and the Supreme

Court of Appeal have interpreted the Constitutional Court’s pronouncements.

Considering the debate also in other jurisdictions on this matter (eg, with

reference to the adoption of a status or functionality approach characterising public

employment), the authors present a set of pointers for situating different

employment-related disputes as matters to be decided on labour and/or

administrative law principles in South Africa. This requires an appreciation of the