Administrative, labour and constitutional law - a jurisdictional labyrinth

Abstract

Today, the employment relationship in the public service is regulated by a number of sources of law: the law of contract forms the basis of the employer-employee relationship; labour legislation, most notably the Labour Relations Act 66 of 1995 (LRA), directs fairness in the employer-employee context; and the Promotion of Administrative Justice Act 2 of 2000 (PAJA), which codifies administrative law, steers due process and rationality in the public service. All of this occurs within South Africa’s constitutional landscape, which enshrines both ‘everyone’s’ right to fair labour practices, and the right to fair administrative action. Where does this leave the public service employee with a labour related dispute? Should a disgruntled employee refer a dispute to the Commission for Conciliation, Mediation & Arbitration (CCMA) and/or the Labour Court (LC) under the auspices of the LRA, or should the matter rather be taken on review to the High Court (HC) in terms of PAJA?