O'Connor v Department of Education: Eastern Cape and Others (PR 226 / 22) [2023] ZALCPE 21; (2024) 45 ILJ 1041 (LC) (20 October 2023)

FLYNOTES: LABOUR – Review – Decision not to interview – Decision by education department does not constitute administrative action – Not competent to rely on section 158(1)(h) of Labour Relations Act 66 of 1995 for direct referral to Labour Court – Prescribed dispute resolution processes under LRA and Employment Equity Act 55 of 1998 must be followed – Real issues in dispute relating to rights under the LRA and EEA – Applicant failing to refer disputes to conciliation in terms of prescribed dispute resolution processes – Labour Court having no jurisdiction to adjudicate disputes.

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

case no: PR 226 / 22

In the matter between:

ELSWORTH JOHN O’CONNOR

Applicant

and

THE DEPARTMENT OF EDUCATION:

EASTERN CAPE

First Respondent

CHRIS HANI DISTRICT

Second Respondent

MR SWELANKGOMO (EX OFFICIO)

Third Respondent

EDELWEISS PRIMARY SCHOOL

Fourth Respondent

THE SCHOOL GOVERNING BODY OF

THE EDELWEISS PRIMARY SCHOOL

Fifth Respondent

Heard: 19 October 2023

Delivered: 20 October 2023

This judgment was handed down electronically by circulation to the parties and legal representatives by email. The date and time for hand-down is deemed to be 20 October 2023.

Summary: Review application – applicant seeks reviewing and setting aside of decision by Department not to interview him for position – not competent for applicant to pursue such a review – applicant obliged to pursue prescribed processes in terms of

LRA and / or EEA

Review application – applicant asserting claim under PAJA – decision by Department does not constitute administrative action – review application under PAJA not competent – applicant limited to case under LRA / EEA

Review application – s 158(1)(h) of LRA considered – not competent to rely on s 158(1)(h) for direct referral to Labour Court – prescribed dispute resolution processes under LRA and EEA must be followed

Jurisdiction – real issues in dispute relating to rights under the LRA and EEA – applicant failing to refer disputes to conciliation in terms of prescribed dispute resolution processes – Labour Court having no jurisdiction to adjudicate disputes

JUDGMENT

SNYMAN, AJ

Introduction

[1] In this matter, the applicant has brought an application to review and set aside a decision by the first and / or second respondents not to interview him for the vacant position of school principal of the fourth respondent. For ease of reference in this judgment, I will refer to the first and second respondents as ‘the Department’, and the fourth respondent as ‘Edelweiss’. The applicant has not given an indication, in his notice of motion or founding affidavit, of the basis of his review application, but logically considered, it could only have been brought in terms of section 158(1)(h) of the Labour Relations Act (LRA)[1], as the applicant indeed brought the review application under the LRA.

[2] The applicant has amended his notice of motion on several occasions throughout the proceedings. In the most current version, the applicant seeks relief to the effect that the Department be interdicted and restrained from advertising the position of school principal at Edelweiss, and that the Department be ordered to reopen the original interview process in which he was earmarked for interview for this position. The applicant also asks for relief that the decision by the Department not to interview him for this position be reviewed and set aside. There are several other prayers in the notice of motion, but these are mostly nothing more than an elaboration and repetition of the core prayers for relief as aforesaid.

[3] According to the applicant, the decision of the Department not to interview him for the position was taken on 11 September 2022. The review application was filed on 4 October 2022. Insofar as the six weeks’ time limit under section 145(1) of the LRA may find application, it is clear that the review application was timeously brought, and is therefore properly placed before Court for determination. I will now proceed to decide this review application by first setting out the relevant background facts.

Background facts

[4] The background facts in this case are straight forward, and mostly undisputed. In particular, the events surrounding the decision of the Department not to interview the applicant for the post of school principal for Edelweiss, and the reasons given for such refusal, is not disputed, and is summarized below.

[5] On 18 July 2022, the Department advertised in its Open Post Bulletin for Principals Volume 1 of 2022 (the Bulletin), inter alia, the position of school principal for Edelweiss. The Bulletin prescribed the required application documents to be completed by any candidate seeking to apply for positions advertised in the Bulletin, as well the requirements for and qualifications needed to competently fill the positions advertised. The closing date for applications was 13 August 2022.

[6] The Circuit Manager of the Department, in this instance being the third respondent, was responsible for the short listing and then the interviewing of candidates for the positions advertised. There were seven candidates, including the applicant, that applied for the position of the school principal of Edelweiss. After the sifting of the candidates, so to speak, two candidates were short listed to be interviewed. One of those candidates was the applicant.

[7] The interviews were scheduled for 11 September 2022. The interview committee comprised the third respondent, a duly appointed interview panel, and union representatives.

[8] However, and on the day of the interview, the chairperson of the interview panel brought information concerning the applicant to the attention of the interview committee. According to the chairperson, this information would have an impact on the appointment of the applicant. As a result, the interviews were adjourned so as to enable the interview committee to consider the information.

[9] The information, properly considered, indeed caused a difficulty where it came to the applicant’s possible appointment. Two issues stood out. Firstly, the applicant had a criminal record which he did not disclose. And secondly, he had been previously medically boarded by the Department. With this information having come to light, the Department also carefully scrutinised the applicant’s completed application form for the position. It was then discovered that the applicant misrepresented further information in that form, in that he stated that at the time of application, he was employed as a head of department at Sterkstroom Primary School, when that was not the case.

[10] In the applicant’s application form for the position, which he signed on 1 August 2022, he answered a number of questions in section 29 of the form falsely. In particular, one of the questions was whether the applicant had even been criminally charged, and he ticked ‘NO’. There is also a question asking whether the applicant had ever taken early retirement due to ill heath, which he also ticked ‘NO’.

[11] The applicant was then asked to explain the aforesaid anomalies / irregulates found in his application form. The applicant explained that his criminal record had been expunged. Even though this is no answer to the question whether he had ever been criminally charged, this explanation was simply not true. It turned out that the applicant had been released on parole, which does not expunge his criminal conviction. As to the answer concerning his medical boarding, he was unable to offer an explanation why he had ticked the ‘NO’ block. And finally, relating to the issue of him being currently employed as head of department at Sterkstroom

Primary School, he said that he made a mistake on the form.

[12] For all the reasons as set out above, the Department then decided to disqualify the applicant from applying for the position, and cancelled his interview. It may be added that the other short listed candidate was also unsuccessful, and was not appointed following the interview.

[13] The decision by the Department to disqualify the applicant from being interviewed for the position of school principal of Edelweiss is then the basis of the current review application. In his founding affidavit supporting his review application, the applicant stated that the refusal to interview him was unfair and irrational and in contravention of the Employment Equity Act (EEA)[2], the LRA and the Department’s own internal policy documents. The applicant also alleged that he had been unfairly discriminated

against, citing a variety of grounds in this regard. In particular, the applicant relied on section 6 of the EEA[3], and pleaded that for the purposes of the EEA, an ‘employee’ included an applicant for employment, thereby covering him where it came to the relief sought under the LRA.

[14] The founding affidavit of the applicant also places reliance on the right to fair administrative action in section 33 of the Constitution, as encompassed in the Promotion of Administrative Justice Act (PAJA)[4]. In particular, the applicant relies on section 3 of PAJA. According to the applicant, the decision of the Department not to interview him for the position violated the principles of procedural fairness and was unreasonable.

[15] The Department has opposed the application.

Jurisdiction

[16] This entire matter squarely hinges on the determination whether the decision by the Department not to interview the applicant for the position of school principal for Edelweiss falls to be reviewed and set aside. If that is found to be the case, then all the other prayers for relief by the applicant would follow. But if it is found not to be the case, then the entire application must fail.

[17] In casu, the first issue for consideration is whether this Court has jurisdiction to entertain the applicant’s review application.

In Du Plessis v Public Protector and Others[5] the Court said:

‘Jurisdiction cannot be assumed or implied. It either exists or it does not. Jurisdiction is the power of the Court to decide a matter that has been brought before it. If the Court does not have the power to do so, it cannot consider the matter, no matter what the merits or equities may be …’

[18] It thus does not matter whether the Department has acceded to the applicant’s averment in the founding affidavit that this Court has jurisdiction to entertain his application. The fact is that this Court must satisfy itself, irrespective of the position adopted by the parties, that it has jurisdiction.

[19] In Gcaba v Minister for Safety and Security and Others[6], the Court described the concept of ‘jurisdiction’ as follows:

‘The specific term 'jurisdiction', which has resulted in some controversy, has been defined as the 'power or competence of a court to hear and determine an issue between parties …’

And in Makhanya v University of Zululand[7], the Court also dealt with the meaning of jurisdiction as follows:

‘…. Judicial power is the power both to uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of a claim is as much an exercise of judicial power as is the upholding of a claim. A court that has no power to consider a claim has no power to do either (other than to dismiss the claim for want of jurisdiction).’

[20] The jurisdiction of the Labour Court is defined in section 157 of the LRA, which reads:

‘(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive

jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from-

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible.’

[21] Therefore, the jurisdiction of the Labour Court is specifically circumscribed and determined by statute, being the LRA itself. However, section 157(1) does not establish a general jurisdiction that the Labour Court can exercise, in all instances where a litigating party approaches the Labour Court and pleads the dispute is one related to an employment matter.[8] In order for the Labour Court to have jurisdiction, the issue for determination must be specifically provided for in the LRA, or in any other related employment law, such as for example the EEA or Basic Conditions of Employment Act (BCEA)[9]. The applicant must also indicate on what provision in any of these items of legislation the applicant relies.[10] As succinctly described in Booysen v Beaufort West Municipality and Another[11]:

‘… In regard to the issue of jurisdiction, the starting point is that this court is a creature of statute. In terms of s 157(1), subject to the Constitution and s 173, and except where the Labour Relations Act 66 of 1995 (LRA) provides otherwise, the court has exclusive

jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by the court. The court thus has no general jurisdiction to deal with all disputes arising from employment …’

[22] In addition, there are other instances where the Labour Court would enjoy jurisdiction, but in these instances, it enjoys this jurisdiction concurrently with the High Court. This is found in section 157(2) of the LRA, which relates to issues concerning an

alleged violation of any fundamental right entrenched in Chapter 2 of the Constitution, provided that alleged violation arises from employment / labour relations, or relates to the constitutionality of any executive or administrative act or conduct by the State in its capacity as an employer, or concerns the application of any law the Minister of Labour is responsible for. Then also in terms of section 77(3) of the BCEA, the Labour Court has concurrent jurisdiction with the High Court in any matter concerning a contract of employment.[12]

[23] Jurisdiction is determined on the basis of the case as pleaded by the applicant, which pleaded case in motion proceedings is determined by reference to the notice of motion and founding affidavit.[13] In casu, the applicant’s notice of motion unfortunately does not allude to what exactly what cause of action the applicant relies upon to establish his case. But in the founding affidavit, and under the heading of the nature of the application, it is clear that the applicant pleads reliance on section 5 of the LRA, section 6 of the EEA, and the provisions of PAJA. According to the applicant, the decision giving rise to his case is the decision by the Department not to interview him for the position of school principal of Edelweiss, and this decision is open to challenge in terms of the legislative provisions relied on by the applicant. In particular, the applicant pleads that the decision of the Department amounted to an unfair labour practice under the LRA, amounted to unfair discrimination against him under the EEA, and infringed on his rights to procedural fairness and a fair and proper hearing prior to the decision being made. The applicant succinctly states, in his founding affidavit, as follows:

‘Having regard to the material facts pleaded above in paragraphs 11 to 40, I plead the Respondents conducted themselves in a manner that is in contravention of the provisions of the Labour Relations Act, the Employment Equity Act and prescripts of the PAM document. Ultimately, their conduct was so discriminatory and in absolute contravention of the Constitution of the Republic of South Africa.’

[24] As to the ‘material facts’ referred to by the applicant, he relies on a variety of facts in support of his case. According to the applicant, the procedure to be followed in considering his appointment is regulated by the Personnel Administration Measures document of 2022 (PAM Document), and in terms of this document any short-listed candidate must be interviewed. The applicant also contends that in terms of the PAM document, the interview panel was not empowered to reconsider his application for employment and was duty bound to interview him. As to the decision not to interview him, the applicant states that this decision had to be preceded by a fair process, which includes that the complaints against him should be clearly articulated, and that he should be

afforded the opportunity to be heard before the decision is made. Finally, the applicant contends that he was discriminated against

based on his background / social standing, ethnicity, previous employment / legal qualification, his disability, and his previous

convictions.

[25] Turning then to the issue of jurisdiction, the first issue to dispose of is that in the latest version of his notice of motion (dated 9 February 2023), the applicant has inserted two prayers to the effect that the Department be ordered to appoint him if he scores the most in the interviews and is recommended for appointment. This kind of relief is entirely inappropriate and would serve to usurp the functions and powers of the Department. It is simply not for this Court to give directives to the Department on how to conduct appointments, or pre-empt what may happen in and after interviews, to come in future. Should the applicant not be appointed

after any interview process, he would be required to challenge such a decision, if he is dissatisfied with it, in the ordinary course. In short, an outcome cannot be pre-empted, and it is simply not competent to seek relief on such basis.

[26] I will next consider whether this Court has jurisdiction to entertain the applicant’s case, based on the above legal principles and the case as pleaded by him. Insofar as the applicant seeks to rely on the provisions of the LRA and the EEA, this Court would have jurisdiction to entertain his application. However, this jurisdiction would be limited to what is specifically provided for in those statutes, and would not include a general unfair labour practice jurisdiction. It follows that the applicant’s pleaded reliance on and the alleged breach by the Department of the provisions of section 5 of the LRA and section 6 of the EEA, would clothe the Court with the necessary jurisdiction to decide the same.

[27] Where it comes to the applicant’s pleaded case of procedural unfairness and / or unreasonableness under PAJA, the situation is a little more complex, as it involves a consideration whether the decision of the Department not to interview the applicant for the post of school principal of Edelweiss constitutes administrative action as contemplated by the Constitution and PAJA. But nonetheless, and where it comes to jurisdiction, the applicant’s pleaded case under PAJA is based on an allegation of a violation of a fundamental right under Chapter 2 of the Constitution, arising from labour relations. That would give the Labour Court jurisdiction, on the case as pleaded, to decide such case.

[28] However, the fact that this Court may have jurisdiction to decide the applicant’s case as pleaded, does not mean that it is a good case. The Court in Makhanya supra[14] aptly described the position as follows:

‘... The power of a court to answer a question (the question whether a claim is good or bad) cannot be dependent upon the answer to the question. To express it another way, its power to consider a claim cannot be dependent upon whether the claim is a good claim or a bad claim. …’

[29] In my view, and for the reasons to follow, the applicant unfortunately has a bad claim (case), which has the result that this Court simply cannot come to his assistance, as prayed for by him, even if it has jurisdiction to look into it.

Analysis

[30] I will first deal with the applicant’s claim based on section 3 of PAJA, as motivated by the facts pleaded in the founding affidavit. I am unconvinced that this Court can come to his assistance based upon the application of PAJA in this case. My view in this regard stems from the following dictum in Gcaba supra,[15] where the Court held as follows in a case where an employee sought to rely on PAJA to challenge a case relating to a refusal to promote the employee:

‘Generally, employment and labour relationships do not give rise to administrative action as contemplated by the PAJA. Section 23 of the Constitution regulates the relationship between employer and employee but s 33 does not. A grievance raised by employees relating to the conduct of the state as employer has few if any direct implications or consequences for other citizens. Employment disputes are therefore not to be equated with matters such as tenders.’

[31] The judgment in Gcaba supra arose from certain dicta by Ngcobo J in Chirwa v Transnet Ltd and Others[16], where the learned Judge said:

‘Support for the view that the termination of the employment of a public sector employee does not constitute administrative action under s 33 can be found in the structure of our Constitution. The Constitution draws a clear distinction between administrative action on the one hand and employment and labour relations on the other. It recognises that employment and labour relations and administrative action are two different areas of law. It is true they may share some characteristics. Administrative law falls exclusively in the category of public law while labour law has elements of administrative law, procedural law, private law and commercial law …’

[32] The SCA in Kriel v Legal Aid Board and Others[17] also interpreted and applied the judgment in Chirwa, and held:

‘… The question whether an unfair dismissal in the public sector amounts to administrative action has been settled by the Constitutional Court in Chirwa v Transnet Ltd & others. The Constitutional Court held that public servants now enjoy the same protection afforded employees in the private sector under the LRA. The court further held that a public service employee could not have two causes of action, one under the LRA and the other under PAJA, and that the decision of an organ of state to dismiss an employee is not an administrative act but involves the exercise of a contractual power …’

[33] The above dictum in Kriel also puts paid to the applicant’s reliance on the various policies applicable in the Department, in support of his claim under PAJA, such as the PAM Document. The fact is that the power that may be exercised by the Department under such policies, vis-à-vis

an individual employee, would not be administrative action, but rather either a contractual power or a statutory power subject to moderation under employment legislation. This moves it outside the ambit of PAJA, and into employment law.

[34] I conclude in this regard with a reference to Minister of Labour and Another v Public Servants Association of SA and Another[18] where the Court had the following to say:

‘What was established in Gcaba is a general principle that employment relationship issues do not amount to administrative action within the meaning of PAJA (ie as construed consistently with s 33 of the Constitution). The clear implication being that there could be exceptions to the principle and that certain employment relationship issues (ie actions) may amount to ‘administrative action’ within the meaning of PAJA, properly construed. For example, there might be instances where grievances by state or public sector employees have implications or consequences for other citizens.

Features that serve to distinguish the exception from the general are, inter alia, the source and nature of the action, whether the action involves, or is closely related to the formulation of policy, or to the initiation of legislation and/or whether it has to do with the implementation of legislation. In De Villiers the Labour Court added the existence of alternative remedies as another factor to be considered, due to the importance attached to that aspect in both the Chirwa and the Gcaba decisions.’

[35] In casu, none of the exceptions that could serve to take the matter out of the realm of employment law and into administrative action exists. The decision by the Department has nothing to do with the formulation of policy or the implementation of some or other regulatory provision. It is a decision that is fact specific to this case only, and impacts on the applicant only, with no implications flowing from the decision for anyone else. The nature of the action is simply about deciding not to employ a candidate for employment, which is only subject to challenge where the LRA and the EEA allows for it. It is also clear that the applicant has suitable alternative remedies in that context.

[36] In the end, the point is simply this. The applicant relies squarely on labour relations (employment law) to bring this matter under the jurisdiction of this Court. And once it is a case of labour relations, the decisions taken by the State as employer in this

context cannot constitute administrative action. The fact that the applicant was not an employee, as yet, but a prospective employee,

does not change things. The fact remains that labour relations may extend to applicants for employment, a concept the applicant is very much alive to and in fact specifically relies upon.[19] The applicant, on the facts, applied for employment, and the Department decided not to consider him for employment. That must be

an employment decision. In the simplest terms possible, this case is quintessentially an employment case, and being an employment case, it cannot be administrative action. Any claim based on PAJA must thus fail. For example, and as said by Skweyiya J in Chirwa supra:[20]

‘… Accordingly, the failure to promote and appoint the applicant was not administrative action …’

[37] This leaves the applicant’s claim under the LRA and the EEA for consideration. It is common cause that at the time when the challenged decision of the Department was made, the applicant was not an employee of the Department, but was an applicant for employment. It is true that in section 5(2)(c)(vi) of the LRA it is provided that ‘… no person may do, or threaten to do, any of the following-. … prejudice an employee or a person seeking employment

because of past, present or anticipated … exercise of any right conferred by this Act …’. Insofar as the applicant’s case then is that what happened in this case constitutes a contravention of this provision, the problem the applicant has is that the LRA, in addition to creating this right, then also creates a prescribed procedure in terms of which this right is to be enforced. This is found in section 9 of the LRA, which provides that the dispute must first be referred to the CCMA or applicable bargaining council for conciliation, and if conciliation fails, then to the Labour Court for adjudication.

[38] Similar considerations apply in the case of the applicant’s unfair discrimination claim under the EEA. Again, it is true that the provisions of Chapter II of the EEA would apply to applicants for employment.[21] In terms of section 6(1) of the EEA, an applicant for employment may not be discriminated against on one or more of the grounds as listed in the section. The grounds as pleaded by the applicant includes some of these grounds. The applicant also relies on section 6(3), which determines that harassment constitutes discrimination under the EEA. Having created these rights, the EEA, just like the LRA does, prescribes a process to be followed were it comes to enforcing these rights. This is found in section 10 of the EEA, and also requires in the first instance a referral of an unfair discrimination dispute to the CCMA for conciliation. If the dispute remains unresolved following conciliation, it must be referred to the Labour Court for adjudication, save for the cases where section 10(6)(aA) or (b) of the EEA applies, in which instance the dispute must be arbitrated by the CCMA (these provisions however would not apply in this case).

[39] In casu, the applicant never referred either his dispute under section 5 of the LRA, or his unfair discrimination dispute under section 6 of the EEA, to the CCMA and / or applicable bargaining council for conciliation. Because such a referral is a pre-requisite jurisdictional fact which would enable the Labour Court to adjudicate such disputes, it has to follow that in the absence of such a referral to conciliation, the Labour Court simply has no jurisdiction to adjudicate these disputes. In National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others[22] it was held as follows:

‘Referral for conciliation is indispensable. It is a precondition to the Labour Court's jurisdiction over unfair dismissal disputes …’

[40] In Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and Others[23] the Court described the requirement of first referring an unfair dismissal despite to conciliation as ‘deferring’ the

jurisdiction of the Labour Court to determine such a dispute until this happened. The following dictum by Jafta J is instructive:[24]

‘Although unfair dismissal disputes such as the ones we are concerned with here fall within the jurisdiction of the Labour Court, the exercise of that jurisdiction is deferred until a dispute has been conciliated. The LRA is structured in a manner that obliges parties to disputes to first make use of non-litigation dispute-resolution mechanisms, before approaching courts. Of importance in this regard is s 191, which requires dismissed employees to refer disputes about the ‘fairness of a dismissal to conciliation’ …’

[41] In my view, these same considerations would equally apply to any other dispute under the LRA, or the EEA, where there is a stipulated requirement in the dispute resolution process linked to that dispute, that requires the dispute to be first referred to conciliation, before it can be arbitrated or adjudicated.[25] It must follow that in the absence of any referral by the applicant of his disputes under the LRA and / or the EEA, to the CCMA and / or bargaining council for conciliation as a matter of first instance, the Labour Court would simply have no jurisdiction to adjudicate these claims. The applicant is therefore unable to place these claims before this Court, in the current proceedings, for determination, replying on the entitlement of the Labour Court to adjudicate those claims.

[42] What the applicant has done is to instead approach this Court directly on review. The applicant relies on section 158(1)(h) in this regard, in terms of which the Labour Court may ‘… review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law.’ The decision by the Department not to interview the applicant for the post of school principal for Edelweiss, would certainly be a decision of the State in its capacity as employer, as contemplated by section 158(1)(h), which, as discussed above, this Court in principle would have jurisdiction to consider and decide.[26] But that is not where the enquiry ends. In Mohlomi v Ventersdorp/Tlokwe Municipality and Another[27] the Court held:

‘The enquiry whether or not to entertain such a review application however does not stop just because it may be accepted that the Labour Court in general terms has jurisdiction to do so. Simply put, the fact that the Labour Court has jurisdiction/power does not mean that the court should exercise this power. In other words, and even though the court may have jurisdiction to consider such a review under s 158(1)(h), it does not mean that it is appropriate for it to exercise such power, especially where there are other specifically prescribed

alternative means by way of which the issue can be resolved …’

[43] This is where the statutory prescribed dispute resolution processes under the LRA and the EEA would come in. These dispute resolution processes are far more than just an alternative remedy. It is actually an obligatory and prescribed alternative remedy.[28] There is no choice, it must be done in that manner. That is why the Court in Chirwa supra made the following clear:[29]

‘… The LRA is the primary source in matters concerning allegations by employees of unfair dismissal and unfair labour practice irrespective

of who the employer is, and includes the state and its organs as employers.

Ms Chirwa’s case is based on an allegation of an unfair dismissal for alleged poor work performance. The LRA specifically legislates the requirements in respect of disciplinary enquiries and provides guidelines in cases of dismissal for poor work performance. She had access to the procedures, institutions and remedies specifically designed to address the alleged procedural unfairness in the process of effecting her dismissal. She was, in my view, not at liberty to relegate the finely tuned dispute-resolution structures created by the LRA. If this is allowed, a dual system of law would fester in cases of dismissal of employees by employers, one applicable in civil courts and the other applicable in the forums and mechanisms established by the LRA.’

[44] In short, the LRA has a unique scheme where it comes to resolving disputes that arise in the scope of the employment environment, and this even includes the State as employer.[30] The LRA creates a right to a fair dismissal and a fair labour practice, and then provides for a prescribed dispute-resolution process to give effect to such right. The same would apply to the rights and processes under the EEA. At the heart of this dispute-resolution process lies the notion of fairness as between both employer and employee, which notion is incompatible with concepts such as unlawfulness or illegality or invalidity.[31] At a level of policy, this Court should always strive to give primacy to this prescribed dispute resolution processes of the LRA and the notions underlying it.

[45] It must follow that where the Court is faced with a review application under section 158(1)(h) to challenge a decision of the State in its capacity as employer, it is essential for the Court to consider the true nature of the decision, or, in other words, the true nature of the dispute.[32] So, and for example, if the decision is tantamount to a dismissal or would constitute an unfair labour practice as defined in section 186(2) of the LRA, then such a decision would normally be susceptible to challenge under the auspices of the dispute resolution processes enshrined in the LRA. Or, and as applicable in casu, the decision could be tantamount to unfair discrimination as contemplated by the EEA, in which event the prescribed dispute resolution processes in that Act would ordinarily apply. This enquiry must always be conducted by the Court, irrespective of how the review

applicant may choose to label the dispute.[33] And once it is true that the true nature of the dispute is one contemplated by the LRA and EEA, then the dispute must be resolved by way of the proper prescribed processes under those statutes, and this Court should decline to entertain the same. As said by Ngcobo J in Chirwa supra:[34]

‘… It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of s 157(2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute-resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case 'for practical considerations'. What is in essence a labour dispute as envisaged in the LRA should not be labelled a violation of a constitutional right in the Bill of Rights simply because the issues raised could also support a conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution …’

[46] The fact that the State may be the employer makes no difference. Employees of the State, or in this case applicants for employment by the State, are to be treated no differently and have no additional rights or benefits, than their counterparts in the private

sector.[35] In Public Servants Association of SA on behalf of De Bruyn v Minister of Safety and Security and Another[36] this was aptly described as follows:

‘The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis-à-vis public servants, evaporated

when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not “an administrative act” as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her.’

[47] Some examples of instances where State employees were found to bypass the dispute resolution processes under the LRA, and how such employees were treated by the Courts, bear mention. In Zungu v Premier of the Province of KwaZulu-Natal and Others[37] the Court held as follows:

‘The Labour Appeal Court was correct in upholding the Labour Court’s decision that it did not have jurisdiction in the matter. This is because the claim by the applicant relating to the Premier’s decision not to appoint her, and the contention that this was unlawful, falls squarely within the definition of dismissal in s 186(1)(b) of the LRA. The dispute should have been referred to conciliation and ultimately to arbitration under s 191 of the LRA. Therefore, the applicant cannot bypass the dispute-resolution process envisioned in the LRA. The applicant was obliged to follow the

dispute-resolution process in chapter VIII of the LRA but did not do so.’

And in Chirwa supra,[38] Skweyiya J said:

‘Further, even if Ms Chirwa, or a similarly situated employee, sought to challenge the dismissal by relying on a constitutional issue other than one implemented through PAJA (as has been done here by relying on s 195 of the Constitution), for example discrimination, it is necessary that all remedies under the LRA are exhausted before raising such an issue in a different forum. This is required so that the LRA and its structures, which were crafted to provide a comprehensive framework for labour dispute resolution, are not undermined. …’

[48] It is of course true that under exceptional circumstances, this Court may decide to intervene in LRA disputes placed before it by employees in the public service under the auspices of section 158(1)(h) of the LRA.[39] However, and in such a case, the applicant must make out a proper case of exceptional circumstances in the founding affidavit, which is of course dependent on the facts of every case.[40] However, important considerations would be issues such as whether failure to intervene would lead to grave injustice or whether it would be impossible to attain justice by other means.[41] But the applicant in casu has made out no case of exceptional circumstances. The applicant actually did not even attempt to establish exceptional circumstances,

and approached the matter as a review on the basis that he was simply entitled to bring his application to Court. There is no reason in this case why the ordinary dispute resolution processes under the LRA or EEA should not apply. Section 158(1)(h) therefore cannot come to the assistance of the applicant.

[49] For all the reasons as set out above, it is my view that the applicant’s application to review and set aside the decision of the Department not to interview him for the position of school principal for Edelweiss cannot succeed. The applicant was compelled to have followed either the dispute resolution process in terms of section 9 of the LRA, in respect of his case of a contravention of section 5 of the LRA, or the dispute resolution process in terms of section 10 of the EEA in the case of a contravention of section 6 of the EEA. It was not open for the applicant to bypass these processes and head directly to this Court, as a Court of first instance. Once the review application fails, it follows that all the other prayers for relief made by the applicant in his notice of motion must also fail, because the decision by the Department not to interview him for the post of school principal of Edelweiss stands. The applicant’s application thus stands to be dismissed.

Costs

[50] Initially, the Department has asked for an award of costs. However, and when the matter was argued, the Department indicated that it would not pursue the issue of costs. In terms of section 162 of the LRA, I have a wide discretion where it comes to the issue of costs. Considering the approach adopted by the Department, it would my view obviously be fair that no costs order is made.

Order

[51] In the premises, I make the following order:

1. The applicant’s application is dismissed.

2. There is no order as to costs.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

In person

For the First and Second

Respondents:

Advocate M Pango

Instructed by:

The State Attorney

[1] Act 66 of 1995 (as amended).

[2] Act 55 of 1998 (as amended).

[3] Section 6(1) of the EEA reads: ‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.’

[4] Act 3 of 2000.

[5] (2020) 41 ILJ 919 (LC) at para 20. See also Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA) at para 23; SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8.

[6] (2010) 31 ILJ 296 (CC) at para 74.

[7] (2009) 30 ILJ 1539 (SCA) at para 23.

[8] In Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) at para 24, it was held: ‘… Crucially, s 157(1) does not afford the Labour Court general jurisdiction in employment matters …’ See also Soobedar and Another v Minister of International Relations and Cooperation and Another (2021) 42 ILJ 1761 (LC) at para 12; Booysen v Beaufort West Municipality and Another (2021) 42 ILJ 2415 (LC) at para 5.

[9] Act 75 of 1997 (as amended).

[10] In SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC) at para 6, the Court said: ‘… an applicant must necessarily identify the statutory provision that confers jurisdiction on the court …’. In Booysen (supra) at para 5, it was held that: ‘… A party referring a dispute to this court for adjudication must thus point to a provision of the LRA or some other law to establish that the matter is one over which this court has jurisdiction …’. See also Shezi v SA Police Service and Others (2021) 42 ILJ 184 (LC) at para 10.

[11] (2021) 42 ILJ 2415 (LC) at para 5.

[12] In SA Municipal Workers Union on Behalf of Morwe v Tswaing Local Municipality and Others (2022) 43 ILJ 2754 (LAC) at para 11, the Court said: ‘… In summary, any claim that could be brought in a civil court that has to do with a dispute over a contract of employment falls within the jurisdiction of the Labour Court …’

[13] See Gcaba (supra) at para 75; Mbatha v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37; Mohlomi v Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 42; Public Servants Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) at para 15.

[14] Id at para 54. See also McKenzie (supra) at para 8; Baloyi (supra) at para 42.

[15] Id at para 64.

[16] (2008) 29 ILJ 73 (CC) at para 143. This reasoning was concurred with by the majority judgment penned by Skweyiya J, at para 73.

[17] (2009) 30 ILJ 1735 (SCA) at para 13.

[18] (2017) 38 ILJ 1075 (LAC) at paras 51 – 52.

[19] The applicant specifically relied on section 5(2) of the LRA and chapter II of the EEA, which applies to applicants for employment.

[20] Id at para 68.

[21] See section 9 of the EEA.

[22] (2015) 36 ILJ 363 (CC) 40. See also September and Others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC) at para 46; Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 41 ILJ 228 (LC) at para 10.

[23] (2020) 41 ILJ 1837 (CC).

[24] Id at para 16,

[25] See for example Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v Food and Allied Workers Union on Behalf of Members and Others (2022) 43 ILJ 2584 (LC) at para 9.

[26] See Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC) at para 36.

[27] (2018) 39 ILJ 1096 (LC) at para 34.

[28] See Madzonga v Mobile Telephone Networks (Pty) Ltd [2013] ZALCJHB 232 (30 August 2013) at para 63; Ida v Department of Co-Operative Governance Human Settlements and Traditional Affairs Limpopo Province and Another [2016] JOL 37301 (LC) at para 53; Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 17

[29] Id at 64 – 65. See also Gcaba (supra) at para 56, where it was held: ‘… Once a set of carefully crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system. This was emphasized in Chirwa by both Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely tuned dispute-resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees …’. See also Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at paras 10 – 12; Mpele v Municipal Council of the Lesedi Local Municipality and Others (2019) 40 ILJ 572 (LC) at para 42.

[30] Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 26.

[31] Mohlomi (supra) at para 39. See also Chemical Energy Paper Printing Wood and Allied Workers Union & Others v Mashanda NO and Others (2023) 44 ILJ 520 (LC) at para 83.

[32] In Zungu v Premier, Province of Kwazulu-Natal and Another (2017) 38 ILJ 1644 (LAC) at para 18, the Court said: ‘… Accordingly, the first exercise in any proceedings is to read, as in this case, the allegations in the affidavits, and make the determination. It is not, primarily, the form of relief sought, but rather the necessary averments to demonstrate the ‘cause of action’ that determines the ‘character’ of the dispute, although the form of the relief, if it is consonant with the cause of action, will point in the same direction’. See also Mohlomi (supra) at para 42; Ngubane v Safety and Security Sectoral Bargaining Council and Others (2022) 43 ILJ 2543 (LC) at para 24.

[33] Compare National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC) at para.52; Chirwa (supra) at para 63; Gcaba (supra) at para 66; Farre v Minister of Defence and Others (2017) 38 ILJ 174 (LC) at para 17.

[34] Id at para 124.

[35] As said in Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal (2014) 35 ILJ 613 (CC) at para 31: ‘… The LRA does not differentiate between the state and its organs as an employer, and any other employer. Thus, it must be concluded that the state and other employers should be treated in similar fashion …’

[36] (2012) 33 ILJ 1822 (LAC) at para 26. See also Chirwa (supra) at paras 41 and 124; Gcani v Minister of Justice and Correctional Services and Others (2019) 40 ILJ 358 (LC) at para 28.

[37] (2018) 39 ILJ 523 (CC) at para 20.

[38] Id at para 68.

[39] Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at para 54; Minister of Labour and Another v Public Servants Association of SA and Another (2017) 38 ILJ 1075 (LAC) at para 52; Mohlomi (supra) at para 44; Ngubane (supra) at para 25.

[40] Mohlomi (supra) at para 47.

[41] See Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 46; Madzonga v Mobile Telephone Networks (Pty) Ltd [2013] ZALCJHB 232 (LC) at para 63; Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 17.