Earlier this month the specialised labour court system received a shot in the arm after a decision by the constitutional court that the labour courts, and not high courts, must rule on labour disputes.
The judgment in Chirwa vs Transnet is one of three handed down by the court this year in which the constitutional court has asserted its authority on the development of labour law. In all three cases, judgments by the supreme court of appeal were overturned.
"The constitutional court's decision has unequivocally affirmed the status of the labour court as the primary institution for the resolution of labour disputes," says Andre van Niekerk, director of employment law specialists Perrott Van Niekerk Woodhouse & Matyolo. "This at a time when the labour court's separate existence is under threat."
The judgment marked the end of a battle between Petronella Chirwa, an executive manager at Transnet's Pension Fund, and the parastatal over her dismissal in 2002, which she claimed was unfair. Chirwa took her case to the high court instead of the labour court, claiming that because she worked for Transnet, a parastatal, her dismissal could be viewed as executive power and entitled her to appeal it under the Promotion of Administrative Justice Act. The constitutional court overruled that, saying the labour court should rule on labour issues.
The future status of the labour court has been unclear after the controversial superior courts bill was put out for comment in 2003. It proposed a rationalisation of the courts, with the labour court being absorbed into the high court system, rather than operating as a separate division.
But it has since stalled. Because it requires constitutional amendments, it has been held back in parliament and those amendments will be considered only after the ANC Polokwane conference.
"But the concept of the Labour Relations Act and its key institutions as a one-stop shop' for all employment disputes was vindicated in the constitutional court's judgment," says Van Niekerk.
The latest draft of the superior courts bill caused an uproar as it gave specialist status to other courts, such as land and competition, but not the labour court.
This irked important players, such as the tri partite National Economic Development & Labour Council (Nedlac) and trade unions such as the Congress of SA Trade Unions (Cosatu).
"B usiness and labour are unanimous that we would prefer the labour court to remain a separate, specialist court," says business convener in Nedlac's labour market chamber, Elize Strydom. "We've indicated our position and are awaiting an invitation by the minister of justice (Brigitte Mabandla) to discuss it."
She says it's important for specialist judges to hear labour cases because judges need to understand much more than just the law. "They have to consider wider implications of the labour market and credibility with other social partners," says Strydom. "Labour judges also need to appreciate the concept of fairness', which is different from simply deciding between right and wrong."
Of equal concern to Cosatu is the change to Nedlac's power to appoint judges to the labour court.
But the Chirwa vs Transnet judgment is important because it clarifies the powers of the labour court, which have been eroded by a common-law approach to labour disputes taken by the high courts and the supreme court of appeal.
Bowman Gilfillan law specialist Andrew Smith says hundreds of cases have stalled in the high courts pending the decision of the constitutional court. The case clears the way for labour disputes involving public servants to proceed to arbitration rather than in the high court.
Constitutional court judge Thembile Skweyiya said that if Chirwa were allowed to depart from the finely tuned dispute resolution mechanisms created by the Labour Relations Act, it would perpetuate a dual system of law - one applicable in the civil courts and another in the forums created by the act.
"At first glance, it may reflect more progressive jurisprudence in the constitutional court, but the Chirwa judgment is not the last word on the complex interplay between labour law, administrative law and the constitution. The obvious question now is whether the Labour Relations Act will supersede all common-law and contractual considerations in labour disputes."
Smith says though employees may still seek to use the high courts ( the judgment allows them room to manoeuvre), the constitutional court gave a strong indication that it wanted labour matters to be resolved in terms of the Labour Relations Act mechanisms. " The court is saying public-sector employees should not have more remedies than private-sector employees in labour disputes."
He says the quality and training of arbitrators in the labour dispute process will become even more important, as employees and employers will have limited recourse to overturn arbitration decisions.
The Chirwa judgment also calls into question the increasing number of cases, mostly in the private sector, where employees have resorted to the high court to contest employment claims, relying on contractual or other rights to secure employment-related remedies.
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