Courts ponder jurisdiction in labour matters
8 May 2009
   
The Constitutional Court recently grappled with the question of whether the Labour Court had an exclusive jurisdiction to hear labour matters or whether the High Court should also hear such matters.

There has been uncertainty as to which court should have jurisdiction to hear labour matters involving state employees after two judgments passed by the Constitutional Court in 2001 and 2007. In those cases, the employees complained about decisions taken by their state employers arising from their employment relationship.

The 2001 decision in the Fredericks case held that none of the provisions in the Labour Relations Act could exclude the jurisdiction of the High Court to determine constitutional matters. However, the 2007 decision in the Chirwa case held that in instances of conduct by an organ of state in its capacity as an employer, the Labour Court had the power to adjudicate disputes founded on the provisions of the bill of rights that arise from employment relations.

This has resulted in uncertainty and inconsistency in judgments of the Labour Court, High Courts and the Supreme Court of Appeal .

The Labour Relations Act also provided challenges in the interpretation of its jurisdiction. Section 157(1) states that the Labour Court has exclusive jurisdiction in respect of all labour matters. However, section 157(2) states that the Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation by the state in its capacity as employer of any fundamental right.

The Eastern Cape High Court last year declined to hear the matter of Vuyile Gcaba, relying on Chirwa’s case in which a majority of judges held that in a matter involving an allegation of unfair dismissal, only the Labour Court had the jurisdiction to hear it .

Gcaba had been a station commissioner at the Grahamstown police station from 2003 and the post was upgraded and advertised in 2005. Gcaba applied for the position but was not appointed .

Deputy Chief Justice Dikgang Moseneke said this was not a turf war between the courts but the hearing was to determine how employees should vindicate their rights.

The police argue that the Labour Court was entitled to review the action of the state as expressed in section 158(1)(h) of the Labour Relations Act, which says the Labour Court may review any decision taken by the state in its capacity as an employer. The police also argued that the primary objective of the Labour Relations Act was to avoid the multiplicity of forums to which aggrieved employees could approach.

They also said section 158(1)(h) must be read with section 169(b) of the Constitution, which states that the high court may decide any other matter not assigned to another court by an act of Parliament.

Ernst Mabuza, www.businessday.co.za