A sacked Transnet human resources manager who took her case all the way to the Constitutional Court will have to start again by seeking arbitration, the court ruled on Wednesday.
Petronella Chirwa worked as a human resources manager for the Transnet pension-fund business unit, but during 2002 her relationship with her supervisor, Patrick Smith, soured.
She was accused of failing to exercise managerial powers and duties with reasonable care and skill after she did not fill a vacancy for a management accountant in the property asset-management department.
She was given a written warning on November 11 2002, against which she tried to appeal, but was told that Transnet did not yet have a functional appellate structure and was advised to challenge the letter in terms of the Labour Relations Act (LRA).
Instead, she lodged a formal complaint against Smith, outlining details of their acrimonious relationship. He wrote back inviting her to an inquiry over her performance, but she did not want to attend because she objected to him being the complainant, witness and presiding officer of the inquiry. The meeting went ahead without her and she was fired.
She took the matter to the Commission for Conciliation, Mediation and Arbitration, which was unable to resolve it and gave her a certificate entitling her to take the matter to arbitration.
Instead, she approached the Pretoria High Court on the basis that her dismissal violated her constitutional right to just administrative action, as given effect to by the Promotion of Administrative Justice Act (PAJA).
According to a Department of Justice and Constitutional Development information sheet, the Act gives effect to the right to just administrative action.
Administration is made up of government departments, the police and army, and parastatals like Eskom. The Act says that administrators must follow fair procedures, explain their decisions and allow for written responses for a decision. They must also explain appeals procedures and if one is not in place, they must say that a person is allowed to ask a court to review a decision.
The Pretoria High Court applied the principles of natural justice and ordered her reinstated, which Transnet challenged successfully in the Supreme Court of Appeal (SCA). That court upheld the appeal on the basis that her dismissal did not qualify to be reviewed under the provisions of the PAJA.
She approached the Constitutional Court on the grounds that she is entitled to procedurally fair administrative action. She proposed that since Transnet is an organ of state, the dismissal of an employee amounts to an exercise of public power, which is reviewable under sections three and six of the PAJA.
In the alternative, she relied on section 195 of the Constitution, which sets out the principles that must guide public administration in the carrying out of its functions. These include accountability, professional ethics, fairness and objectivity.
However, the Constitutional Court believed that the Labour Court was the appropriate authority to approach, otherwise people could go ”forum shopping”. The high court did not have concurrent jurisdiction with the Labour Court. The court noted that there was an overlap between the PAJA and the LRA and recommended that the legislature revisit the applicable provisions.
The LRA protects all employees, including public-sector employees, and codifies the right to fair labour practices. She could not be in a preferential position because she was a public employee, the court ruled.
”She was ill advised in abandoning the process that she had started in the CCMA. This is the route she should have followed to its very end,” the judgement read.
It was necessary that all remedies under the LRA be exhausted before raising such an issue in a different forum.
She could have applied to the Constitutional Court if she thought the LRA’s provisions were inadequate in providing protection to employees. — Sapa