Public employment and the relationship between labour and administrative law

[摘要] ENGLISH ABSTRACT: The focus of this study is the rights-based normative overlap of labour and administrative law inpublic employment. As the judiciary appeared to be unable to agree on a unified approach tothe application of the rights to fair labour practices and just administrative action to publicemployment, it was clear that the complexity and multi-dimensional character of the debaterequired analysis of existing approaches to the regulation of the public employment relationship.The following initial research question was formulated: To what extent does (and should) theconstitutionalised rights to fair labour practices (s 23) and just administrative action (s 33)simultaneously find application in the regulation of public employment relationships?In answering this question, certain realities had to be acknowledged, the most important beingthat the debate in question jurisprudentially revealed itself to be a jurisdictional turf-war betweenthe Labour and High Courts, rather than proper consideration of the relevant substantivearguments and underlying normative considerations. This called for an additional dimension tobe added to the research question, namely consideration of the extent to which the ss 23 and33 rights are informed by variable and possibly different normative principles and whether theserights allow for cooperative regulation of public employment in accordance with the doctrine ofinterdependent fundamental rights.This became the primary focus of the study. In an attempt to simplify the debate, a deliberatedecision was taken to limit the scope of the normative study to South Africa with its own historicinfluences, structures and constitutional considerations. The study shows that both labour andadministrative law (as constitutionally informed) share concern for equity-based principles. Thisis evident from the flexible contextually informed perspectives of administrative lawreasonableness in relation to labour law substantive fairness, as well as a shared concern forand approach to procedural fairness. Once simplified, and in the absence of any undue positivelaw complexity, the public employment relationship, at both a normative and theoretical level,furthermore shows no substantive status difference with private employment relationships. It is,however, accepted that there are job and sector-specific contextual differences. In the absenceof substantive normative conflict between these branches of law and in the absence of afundamental (as opposed to contextual) difference between public and private employment,there appears to be no reason to ignore the constitutional jurisprudential calls for hybridity,otherwise termed the doctrine of interdependence. The idea of normatively interdependentrights expresses the Constitution's transformative vision (through the idea of flexible conceptualcontextualism) and recognises that human rights may overlap. This also means that where such overlap exists, rights should be interpreted and applied in a mutually supportive and cooperativemanner that allows for the full protection and promotion of those rights. In giving expression tothe interdependent normative framework of constitutional rights, these norms (absent anysubstantive rights-based conflict) should then be used by the judiciary as an interpretative toolto align specific labour law and general administrative law in the regulation of publicemployment relationships.

[发布机构] Stellenbosch University