Just administrative action and employment rights

When it comes to fundamental rights in the context of labour law and employment relations, we first think of the provisions of section 23 of the Constitution of 1996 — protecting the right to fair labour practices, the right to engage in collective bargaining, the right to organise and the right to strike. When it comes to discrimination in the workplace (and the Employment Equity Act) we immediately think of section 9 of the Constitution; that no person may unfairly discriminate against anyone.

But a recent series of cases relate to the right to just administrative action. Section 33 of the Constitution provides that everyone has the right to administrative action that is lawful, reasonable, and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for that action. This right is taken further by the Promotion of Administrative Justice Act 3 of 2000 (abbreviated as PAJA).

The definition of administrative action

Section 1 of PAJA defines administrative action as any decision taken (or any failure to take a decision) by an organ of state which adversely affects the rights of any person and which has a direct, external legal effect. The decision (or failure to decide) must be taken in terms of either the Constitution, a provincial constitution or any legislation. A natural or juristic person (other than an organ of state) will also be covered by PAJA if that person (including a company or CC or an individual) exercises a public power or performs a public function in terms of any empowering provision in legislation.

Western Cape Workers Association v Minister of Labour (2005) 14 LC 15.3.2 illustrates some of these points. The trade union had failed to comply with a number of requirements in terms of the Labour Relations Act (the LRA). The Registrar of Labour Relations (appointed in terms of the LRA and whose functions are set out in the LRA) cancelled the union’s registration. One of the arguments raised by the union was that it had a right of appeal against the Registrar’s decision also in terms of PAJA (in addition to the appeal in terms of the LRA itself). The Labour Court did not agree, stating that PAJA does not apply to labour disputes. Taking into account section 210 of the LRA (which states that the LRA takes precedence over any conflicting legislation except the Constitution), the Labour Court held that the LRA prevails.

Unfair labour practice or unfair administrative action?

There is a clear trend now for employees and unions to argue, in either the High Court or the Labour Court, that a matter relating to the employment relationship also falls within the scope of PAJA and that they have additional remedies in terms of PAJA. Of course, this also has a jurisdictional impact — the Labour Court can only hear matters arising out of the LRA, while other courts (such as the High Court) can and will hear cases relating to infringements of other fundamental rights such as the right to fair administrative action. The question may also arise as to whether a particular dispute falls within the scope of an unfair labour practice (as defined in the LRA) or whether the violation of the right to fair administrative action is at stake (in this case the High Court would have jurisdiction).

These are some of the issues canvassed in the Supreme Court of Appeal in United National Public Servants Association of SA v Digomo NO & others (2005) 14 SCA 1.1.2. The dispute was about the integration of public service employees who had been employed in Gazankulu into the Northern Province Department of Health. A task team set up to deal with the matter appointed a number of employees on the basis of seniority. The task team stated that it was simply not possible to conduct merit assessments and to appoint employees on the basis of merit. The High Court held that the dispute was about an unfair labour practice and that it did not have jurisdiction. The Supreme Court of Appeal disagreed, coming to the conclusion that the union’s case was based on unfair or unjust administrative action: the union was, in effect, seeking to enforce the right of its members to administrative action that was reasonable, fair and procedurally valid. This meant that the High Court did have jurisdiction and it referred the matter back to the High Court for a final decision.

Additional employee remedies?

The pivotal question is whether the right to fair administrative action and PAJA provides employees with remedies in addition to those found in the LRA. Before the LRA of 1995, the administrative law remedies were of considerable importance in the public sector, as public sector employees were not covered by labour legislation. Now that these employees also enjoy the protection of the LRA, the question remains whether public sector employees have two sets of remedies: one in terms of the LRA (protection against unfair dismissal and unfair labour practices) and another in terms of PAJA.

The question also relates, fundamentally, to the distinction between administrative law and labour law. Traditionally, administrative law relates to the relationship between the state and its various organs and citizens — it focuses on decisions taken by public officials that affect the rights of individuals, groups and organisations.

In PSA obo Haschke v MEC for Agriculture & others (2004) 13 LC 1.16.3 the Labour Court held that PAJA was not applicable to CCMA arbitration awards. In passing, however, the Labour Court made the following important statements:

“Labour law is not administrative law. They may share many common characteristics. However, administrative law falls exclusively in the category of public law, whereas labour law has elements of administrative law, procedural law, private law and commercial law. Historically, recourse has been had to administrative law to advance labour rights where labour laws were inadequate.” (at [11])

One of the most important recent decisions as regards administrative action and employment rights is SA Police Union & another v National Commissioner of the SA Police Service & another (in next case update). The police commissioner wanted to introduce an eight hour shift for members of the SA Police who were on duty. No labour consultation or bargaining had taken place and the unions sought an interdict to prevent the introduction of these new working hours. One of the union’s arguments was that the police commissioner’s decision constituted unfair, unreasonable or unjust administrative action.

The first question the Labour Court had to answer was whether the police commissioner’s decision constituted administrative action. It was clear that the Sa Police Service constituted an organ of state for the purposes of PAJA and that the commissioner’s powers to change working hours had its origin in the relevant legislation. But there was nothing public about the police commissioner’s changing the working hours — the matter fell squarely within the ambit of the employment relationship. The changing of the working hours had nothing to do with the relationship between the state and its citizens (the essence of administrative law).

The Labour Court also highlighted the difference between private law (for instance, the contractual relationship between an employee and an employer) and public law (the law regulating the relationship between the state and citizens). There is a real sense that administrative action and administrative law does not apply to private relationships between employers and employees: if every employment relationship (or any dispute arising from this employment relationship) in the public sector were subject to administrative law requirements, it would impose considerable burdens on the state and public sector employers.

Importantly, the Labour Court affirmed the principle that merely because a power (such as the commissioner’s power to change working hours) had its origin in legislation, this did not necessarily mean that the exercise of the power constituted an administrative act for the purposes of the Constitutional right to just administrative action or PAJA. The source of the power (legislation) is just one factor to be taken into account — other pertinent factors include the nature of the power being exercised and the subject matter in respect of which it is being exercised. From a practical perspective, this means that the taking of disciplinary steps against an employee, operational changes or the transfer of employees from one position to another does not constitute administrative action — it constitutes actions deriving from the private relationship between an employer and an employee. This means also that if an employee is appointed in terms of legislation (such as the Public Service Act of 1994 or any other legislation), the relationship remains one of employment: the employer’s decision to discipline and dismiss does not change from employment to administrative in nature.

Another important principle the Labour Court considered was that of consistency. From a policy perspective, the Court held, it was against public policy that public sector employees should have additional remedies and additional labour dispute resolution procedures at their disposal. All labour disputes should be treated in the same way, irrespective of whether the dispute arose between a private employer and employee or a public sector employer and an employee. Now that the LRA applies to public sector employees as well, disputes should be resolved by means of the procedures set out in the LRA: unfair labour practices, unfair dismissal and collective bargaining. These disputes should not be resolved by reference to administrative action.

This decision by the Labour Court has been followed in Hlope v Minister of Safety & Security & Others (in next case update).

Caution called for

Public sector employees include not only those working in national and provincial government (appointed in terms of the Public Service Act of 1994). Employees of statutory bodies, such as the SA Police Service, employees of the SA Revenue Service and all other statutory bodies also fall within the public sector. The fact that these employees are appointed in terms of legislation does not change the nature of their employment relationships to a public law relationship. The fact that a decision-maker takes a decision impacting on their employment relationships does not and that this decision-maker’s power is statutory in origin does not change the relationship either; nor does it mean that the decision-maker’s decision (or failure to take a decision) constitutes administrative action for the purposes of PAJA — the decision is not necessarily subject to review in terms of PAJA.

This means, in turn, that employees and trade unions should exercise some caution in seeking to challenge decisions made by a public decision-maker. It seems that the Labour Court, at least, will be reluctant to conclude that such decisions are administrative in nature. Instead, the Labour Court now takes the view that these decisions remain firmly rooted in the private sphere, a relationship between employer and employee. Only in exceptional cases will a challenge based on administrative justice succeed.