Fair Labour Practices and Labour Relations Act

“By implication the court a quo’s reasoning is that employees who have genuine complaints of other unfair labour practices such as unfair demotions, failure to promote or suspensions for which the Act has provided specific remedies through arbitration and not the Labour Court, cannot approach the Labour Court for interdictory relief. I doubt the correctness of such an interpretation because it has the potential of leading to absurd situations. There are many instances where the Labour Court has deemed it necessary to intervene in deserving situations.”

Tlaletsi JA in Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at para 46

The Constitution grants everyone the right to fair labour practices. [1] The Labour Relations Act [2] (LRA) is the key piece of legislation giving effect to this constitutional right. It provides, amongst others, that every employee has the right not to be unfairly dismissed and not to be subjected to unfair labour practices [3] and sets out a comprehensive mechanism by which any alleged unfair dismissal or unfair labour practice may be remedied. [4]

The Labour Court has from time to time been approached to intervene in incomplete disciplinary proceedings [5] ; grant urgent interim or final relief to suspended employees [6] and urgently interdict disciplinary proceedings from continuing pending the outcome of review proceedings. [7]

In all of these matters, jurisdiction was assumed as a matter of course but the court found against the employees on the grounds that they had failed to meet the test for urgent relief. [8] In SAPU, Farber AJ (as he was then) was clearly of the view that the Labour Court could interfere in internal disciplinary proceedings but would only do so in the most exceptional circumstances. [9] In Zwakala, the Labour Court specifically found that it enjoyed jurisdiction to grant interim relief pending finalisation of a matter pending before the CCMA. [10]

All this however changed with the judgment in Booysen v SAPS and Another [11] where the court determined, in no uncertain terms, that the Labour Court does not have jurisdiction ‘based on section 157(1), read with section 185, to intervene in disciplinary proceedings.’ [12]

It was to be just short of three years before this judgment was overturned on appeal. In Booysen v Minister of Safety and Security and Others [13] the court found that the Labour Court does indeed enjoy jurisdiction to consider applications to intervene in disciplinary proceedings but should only do so in exceptional circumstances. [14]

In the period between the two judgments, a number of applications seeking orders to halt and/or interfere in disciplinary proceedings came before the Labour Court with the Court adopting conflicting stances notwithstanding the judgment in Booysen LC. A number of matters have also been considered post Booysen LAC.

This short essay will firstly look at how the courts have defined the jurisdictions of the Labour Court and the High Court. Secondly it will examine the judgments in Booysen LC and Booysen LAC in a bit more detail. It will also analyse other judgments handed down in applications to the Labour Court to intervene in disciplinary matters around the time of Booysen LC and Booysen LAC. Lastly it will offer some opinion as to whether or not the constitutional right to fair labour practices has been positively upheld and promoted by the Labour Court.

Unpacking the jurisdiction and powers of the Labour Court

The jurisdiction of the Labour Court is set out in section 157 of the Act. [15] The concurrent jurisdiction of the High Court and the Labour Court regarding employment matters, more specifically the relationship between the constitutional rights to fair labour practices and fair administrative action [16] , has received much attention in recent times. [17] Although there have been a number of judgments on this issue, it is, in my view, three judgments of the Constitutional Court that frame this debate. [18]

Cheadle is of the view that both Fredericks and Chirwa are at one that the Labour Court does not have exclusive jurisdiction in all employment matters, only those specially reserved for the Labour Court. In other words, if the claim falls within the ambit of section 157(2) of the Act then the ordinary jurisdiction of the High Court is expressly reserved. [19]

The Constitutional Court in Chirwa said that the ‘existence of a purpose-built employment framework in the forms of the LRA and associated legislation infers that labour processes and forums should take precedence over the non-purpose built processes and forums in situations involving employment related issues.’ [20] It went further that:

The purpose of the administrative justice provisions is to bring about procedural fairness in dealings between the administration and members of the public. The purpose of labour law as embodied in the LRA is to

provide a comprehensive system of dispute resolution mechanisms, forums and remedies that are tailored to deal with all aspects of employment. It was envisaged as a one-stop shop for all labour-related disputes. The LRA provides for matters such as discrimination in the workplace as well as procedural fairness; with the view that even if a labour dispute implicates other rights, a litigant will be able to approach the LRA structures to resolve the disputes. [21]

Gauntlett AJ ( as he was then ), in an unreported High Court judgment, [22] also dealt quite extensively with the jurisdiction issue and, with reference to a range of authorities, including Fredericks, Chirwa and Booysen LC, recorded what he understood to be the correct approach to determining jurisdiction. [23]

The High Court, Gauntlett AJ said, enjoys power to grant declaratory orders and interdicts flowing from unlawful and illegal acts including in relation to the manner in which disciplinary proceedings were conducted. The LRA, he adds, by way of s157(1), creates exclusive jurisdiction for the Labour Court in respect of matters that fall to be regulated by that Act. This, Gauntlet AJ describes as the ‘dominant and default position’. In respect of claims to constitutional rights made in terms of s157(2), the Labour Court and High Court, he submits, enjoy concurrent jurisdiction.

Regarding the approach to be adopted by the court when settling a jurisdiction question, Gauntlet AJ states that the court will firstly have to establish whether the case concerns a matter regulated by the LRA and secondly whether ‘objectively characterised’ it falls within the provision of s 157(1) or what he describes as the ‘excision’ created by section 157(2). An approach that places substance over form, he asserts, should be adopted in this regard.

When Gcaba came before the Constitutional Court , Van De Westhuizen J, on the matter of jurisdiction, found that ‘[j]urisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case.’ [24] He added that ‘(i)f however the pleadings, as properly interpreted , establish that the applicant is asserting a claim under the LRA, one that is determined exclusively by the Labour Court, the High Court would lack jurisdiction.’ [25]

According to Cohen, the court in Gcaba also endorsed the majority finding in Chirwa and unanimously concluded that the right to fair administrative action does not regulate employment and labour relations which are exclusively regulated by section 23 of the Constitution and labour legislation. [26]

John Grogan attempted to sum up the situation by stating that:

[T]he Chirwa judgment has drastically eroded what was once considered an overlap between the jurisdiction of the Labour Court and the High Court; the judgment has effectively laid down that where employees have a remedy under the LRA, the matter falls within the exclusive jurisdiction of the of the Labour Court and is accordingly not justiciable in the High Court. [27]

Like Cohen, he was of the understanding that this position was confirmed in Gcaba. [28]

Shortly prior to Gcaba, the Supreme Court of Appeal (SCA) also added to the jurisdiction debate in Makhanya v University of Kwa Zulu Natal [29] . The SCA effectively found that a matter like dismissal, as had happened in the case of Mr Makhanya, could give rise to different causes of action, in different forums, from the same set of facts and that employees could pursue these actions either simultaneously or sequentially. [30]

The SCA was at it again in SA Maritime Safety Authority v McKenzie [31] . Mr McKenzie claimed he had been unfairly dismissed and launched proceedings in the CCMA. The matter was settled on the basis that the employer would pay compensation.

He then launched proceedings in the High Court claiming breach of contract on the grounds that his contract contained an explicit, alternatively implied, alternatively a tacit term that his contract would not be terminated without a just cause, instituting a claim for R5.2 million. [32] Wallis AJA (as he was then), on behalf of a unanimous bench, and after traversing a range of cases in which jurisdiction had been raised, concluded that ‘there was nothing wrong in Mr McKenzie pursuing his claim in the High Court. However, it is not a good claim and the only viable claim he could have brought based on those allegations had to be pursued, as indeed it was, before the CCMA.’ [33] In arriving at this position he was of the view that:

What creates difficulties is when the merits of a claim are confused with jurisdiction to deal with it. Once it is shown that claims such as the present one or those in Chirwa and Gcaba are without merit they will no longer be pursued in any court and one suspects that the jurisdictional quagmire will prove to be nothing more than a muddy puddle that should have been avoided had the parties focussed on the merits of the claim rather than trying to avoid them by way of jurisdictional challenges. [34]

A more in-depth analysis of the approach adopted by the courts to the jurisdiction of the Labour Court and the High Court, particularly the criticisms that have emerged regarding the majority decision in Chirwa [35] is however beyond the scope of this essay. This applies equally to the views in Gcaba that jurisdiction was to be determined on the basis of pleadings as against the substance test raised in Mortimer and the novel way that McKenzie chose to determine jurisdiction.

For now at least, the respective jurisdictions of the Labour Court and the High Court have to great extent been made clearer by the courts’ interpretations of sections 157(1) and 157(2). It is now generally accepted that the Labour Court enjoys exclusive jurisdiction on all employment related matters regulated by the LRA but this does not oust the jurisdiction of the High Court to entertain contractual disputes.

Fredericks and Chirwa [36] contributed to the unravelling of the ‘jurisdictional quagmire’ [37] that had arisen regarding the interface between the common law and employment law, the right to fair administrative action and fair labour practices and the respective jurisdictions of the Labour Court and the High Court. They did not however specifically deal with the jurisdiction of the Labour Court to intervene in incomplete disciplinary proceedings.

Enter the litigious Mr Booysen

Mr Booysen’s case came before the Labour Court in a very complicated and complex manner and some background is deemed appropriate. [38]

A police officer in the SAPS, he had been diagnosed with post traumatic stress disorder in early 2007. While on sick leave, the employer, following an investigation, decided to institute disciplinary proceedings against him. These proceedings were due to commence on 3 August 2007. Mr Booysen’s legal representative requested a postponement of the proceedings due to his client’s medical condition and this was granted till 31 October 2007.

By the time the proceedings were due to recommence, Mr Booysen had been suspended without pay and had launched an urgent application to reverse the suspension. [39]

On 2 November, during the reconvened disciplinary proceedings, Mr Booysen again took ill. The Labour Court, when it initially considered the suspension dispute, and by agreement between the parties, ordered that should Mr Booysen persist with his claim that his condition prevented him from participating in the disciplinary proceedings, then the Chairperson of such proceedings would rule on this issue.

However before the disciplinary proceedings could continue on 3 December, Mr Booysen was hospitalised and the matter was postponed to 8 January 2008. On this date, another application for postponement was made by the employee’s representative. Evidence was led by psychiatrists on behalf of both parties. Evidence was also led by an independent psychiatrist and the Chairperson then ruled that Mr Booysen was able to participate in the disciplinary proceedings.

But that was not the end of the story. The disciplinary proceedings were due to recommence on 13 February 2008 but just before that, Mr Booysen again approached the Labour Court on an urgent basis. This time, seeking to halt the disciplinary proceedings. It is this application that ultimately came before Cheadle AJ.

Mr Booysen based his case on a number of grounds [40] which the Court dealt with one by one in its judgment, dismissing them all. Prior to considering these grounds, the Court set out the statutory basis for its jurisdiction as follows:

Before engaging with each of the grounds of jurisdiction upon which this application is based, it is important to recognise that the Labour Court derives its jurisdiction from section 157. Section 157(1) states that the Labour Court has exclusive jurisdiction in all matters that are to be determined by it under the LRA or any other law. Section 157(2) confers jurisdiction on the Labour Court to hear a violation of a fundamental right in Chapter 2 of the Constitution of the Republic of South Africa, 1996 arising from (a) employment or labour relations; (b) a dispute over the constitutionality of an executive or administrative act by the State in its capacity as employer; or (c) the application of any law for which the Minister of Labour is responsible. These are the four walls of this Court’s jurisdiction. [41]

Cheadle AJ noted that the high courts have previously intervened in incomplete disciplinary proceedings. This, he said, did not mean that the Labour Court could do likewise for the simple fact that the High Court enjoyed such jurisdiction but the Labour Court did not. [42]

To the extent that Mr Booysen relied on a right to fair administrative action, the Court drew on the Chirwa judgment where it was decided that the right to fair administrative action does not extend to employment decisions by public sector employees and that these decisions fall within the ambit of the LRA and not PAJA and accordingly there can be no violation of any right to fair administration apart from the right to fair labour practices regulated by the LRA. [43]

In arriving at his finding that the Labour Court did not have jurisdiction to intervene in unfinished disciplinary proceedings Cheadle AJ placed great store in the manner in which the Constitutional Court had interpreted a provision of the Act in the matter of NEHAWU v University of Cape Town and Others. [44] Here the Constitutional Court adopted an approach which sought to balance the inherent tension between the interests of workers and employers in determining what constitutes a fair labour practice. [45] The scheme provided by the Act was intended, so said Cheadle AJ, to ‘cut the transactional costs of imposing an unfair dismissal regime on employers and that any judicial interference in incomplete disciplinary proceedings would impose an unfair regime on employers.’ [46]

John Grogan, while of the view that the Court’s finding that the powers conferred on the Labour Court by section 158(1) of the Act can only be exercised in respect of matters over which it enjoys jurisdiction, [47] raises an interesting point – if the Labour Court may review any act or decision of the State in its capacity as an employer why should this not extend to intervening in disciplinary proceedings? Similarly he enquired why, if the Labour Court has ‘exclusive jurisdiction over labour and employment disputes, it should not enjoy the same powers as previously exercised by the High Court including the power to interdict unlawful or unfair disciplinary proceedings.’ [48]

Ultimately however, in the view of Grogan, the Booysen LC judgment effectively closed the door on employees who seek to halt allegedly unfair proceedings against them but also those who seek interdictory relief in respect of other unfair labour practices like suspension, demotions as the Act provides specific remedies and that the Labour Court lacks jurisdiction as these matters fall to be arbitrated at CCMA or bargaining council level. [49]

Beyond Booysen

The Labour Court had occasion, in the period that followed Booysen LC, to consider a number of applications for urgent relief to interrupt incomplete disciplinary proceedings.

Jiba v Minister of Justice and Constitutional Development and Others [50]

This matter came before the Labour Court 15 months after Booysen LC. Ms Jiba launched an urgent application for an order that, amongst others, prevented the employer from commencing with disciplinary proceedings against her. The employer argued that ‘section 157 of the LRA, read with sections 191 and 193, precluded the court from intervening in internal disciplinary proceedings.’ [51]

Van Niekerk J was ‘not convinced that the proposition established in Booysen, supra can be so broadly an unequivocally stated.’ [52] While accepting that the Labour Court cannot make a ruling that finally settles a dismissal dispute that falls within the scope of the CCMA or a bargaining council, section 158(1)(a) of the Act did give the court power to grant urgent interim relief in respect of these matters. [53]

Govender v Minister of Defence [54]

Mr Govender approached the Labour Court seeking an order uplifting his suspension and halting intended disciplinary action pending the outcome of a separate application concerning protected disclosure. [55]

Molahlehi J, without even considering the question of jurisdiction, dismissed the application because of lack of urgency. [56]

David John Randles v Chemical Specialities Ltd [57]

Mr Randles had brought an urgent application seeking an order interdicting the employer from proceedings with disciplinary action pending the outcome of a separate referral to the CCMA of a protected disclosure dispute. [58] As in Govender the issue of jurisdiction was not raised or considered. After consideration of the merits, the order was granted.

From the above judgments it would appear as if the Labour Court did not pay much heed to the findings in Booysen LC. The long standing practice of assuming jurisdiction and determining the matter according to the rules applicable for granting urgent relief appeared to have continued. [59]

Mr Booysen resurfaces

The LAC, when it came to consider Mr Booysen’s appeal, was of the view that the only issue it was required to determine was whether or not the Labour Court had been correct in holding that it does not have jurisdiction to intervene in disciplinary proceedings. [60]

Tlaletsi JA understood the decision of the court a quo to be that the Labour Court does not enjoy jurisdiction to interdict incomplete disciplinary proceedings because the LRA provides a comprehensive set of procedures and mechanisms for employees to assert their right to a fair pre-dismissal procedure – but only after they have been dismissed. This, Tlaletsi JA said, ‘means that the Labour Court cannot come to the assistance of such an employee before his or her dismissal. It means that unless there is a dismissal there is no remedy. It further means that ex post facto relief should determine jurisdiction.’ [61]

The LAC stated that the implications of the reasoning of the court a quo was that employees who had genuine complaints in respect of other alleged unfair labour practices like unfair demotions and suspensions would not be able to approach the Labour Court for interdictory relief as the Act provided a remedy by way of arbitration. This, Tlaletsi JA opined, had the potential of leading to absurd situations. He drew on the reasoning in Nxele v Chief Deputy Commissioner, Corporate Services [62] and Mortimer in support of his finding that the Labour Court does indeed enjoy ‘jurisdiction to interdict any unfair conduct including disciplinary action. However such an intervention should be exercised in exceptional cases.’ [63]

The world after Booysen LAC

In two unreported judgments handed down post Booysen LAC, slightly conflicting approaches were adopted by the court.

Victoria Moya v Standard Bank of South Africa Limited [64]

This matter came before Van Niekerk J, on an unopposed basis, a mere 12 days after the judgment in Booysen LAC was handed down. Ms Moya approached the court for an interim order staying a disciplinary enquiry pending the outcome of a constructive dismissal dispute that had been referred to the CCMA. [65]

Interestingly, Van Niekerk J, enquired of counsel for Ms Moya whether, in the light of the judgment in Booysen LC, the Labour Court enjoyed jurisdiction to grant the order that Ms Moya was seeking. [66] This question was posed as the founding affidavit had failed ‘to disclose with any degree of clarity which of the applicant’s rights the respondent’s conduct either impairs or threatens to impair.’ [67] In response, Counsel for Ms Moya could only put forward that to continue with the disciplinary enquiry would tarnish Ms Moya’s good name and reputation. [68]

At this point, Van Niekerk J departed from the position he had taken in the Jiba matter by turning to Booysen LC:

While Adv Zondo sought to distinguish Booysen on the facts (in Booysen the applicant had claimed that he was incapacitated and unable to participate in disciplinary proceedings ) it seems to me that despite the different factual matrix, the principle remains intact, i.e. that the LRA does not confer jurisdiction on this court to intervene in disciplinary hearings, at least not in terms of any right conferred by the LRA, any right to fair administrative action or by virtue of the direct application of any constitutional right to fair labour practices. [69]

Van Niekerk J did however qualify this stance by indicating that even if his reading of Booysen LC was too narrow or if the Booysen LC decision itself too narrowly interpreted the LRA, Ms Moya’s application would fail on the merits. The application, it would seem, was then dismissed on the basis that it failed the urgency test and not on the jurisdictional point raised by Van Niekerk J. [70]

Volschenk and Another v Morero and Others [71]

The two applicants in this matter were seeking an interdict staying disciplinary proceedings pending a review of a ruling of the chair