The Supreme Court of Appeal last week delivered two important judgments concerning the rights of employees on termination of employment.   It is now clearly established that employees in the public sector, including those employed by organs of State, cannot base their claims on breaches of administrative law or the Constitution and must rely on unlawfulness in term of the common law or unfairness in terms of the Labour Relations Act.

In addition the SCA clarified the nature and effect of various causes of action and the forums in which disputes should be resolved.

In Kriel v Legal Aid Board (GF 7810) [Mhlantla JA & Leach AJA, 1.06.2009] [2009] ZASCA 76 (SCA) the SCA disallowed an appeal from Seriti J.  The  employee’s cause of action was based on unfair administrative action ito PAJA but is was also based on a protected disclosure and the Protected Disclosures Act.   In addition the claim was based on unlawful termination.   Clearly the Legal Aid Board is an organ of State but public servants now enjoy the same protection as private sector employees and can rely on the Labour Relations Act 66 of 1995 for protection.   Termination of employment is the exercise of contractual not administrative powers.   The SCA declined to rule on the remaining issues.

In Makhanya v University of Zululand (GF 7805) [Nugent JA, 29.05.2009] [2009] ZASCA 69 (SCA) an appeal from Hugo J was allowed and the employer’s special pleas re jurisdiction were dismissed.   The employee had tendered to render services ito his employment contract to the University and claimed his remuneration in terms of the contract.   Both the high courts & Labour Court have jurisdiction because of the pure contractual nature of the claim.   This is confirmed by s77(3) of the Basic Conditions of Employment Act.   The SCA took the opportunity to explain the 3 types of causes of action and the forums in which the claims could be enforced: (a) LRA rights – CCMA & Labour Court; (b) common law rights – high courts & Labour Court; and (c) constitutional rights – high courts & Labour Court.   Section 157(2) of the LRA was also interpreted as well as the true ratio decidendi (reason for deciding) of the Constitutional Court decision in Chirwa v Transnet Ltd (GF 6857) [Skweyiya J et al, 28.11.2007].

In paras [66] – [73] of Makhanya v University of Zululand Nugent JA also took the opportunity to expound on some unsound propositions.   In the process and under the heading “The Third Unsound Proposition: The claim that is before the court is not what it purports to be, but is instead a claim for enforcement of an LRA right” Nugent JA discusses an article by Halton Cheadle entitled “Deconstructing Chirwa v Transnet”  to be published shortly in [2009] 30 Industrial Law Journal 741.