Administrative Law in Public-Sector Employment Relationships

Abstract

A number of contrasting and conflicting approaches have emerged in the South African high courts, the Supreme Court of Appeal and the Constitutional Court of South Africa in regard to the question whether the actions of the state as an employer are subject to the controls of administrative law and must be consistent with the constitutional principles of administrative justice. This paper argues that public-sector employment decisions can be defined as 'administrative actions' and must be considered 'public-law wrongs' whenever they are unlawful, unreasonable or procedurally unfair. There is no reason to deny the protection of administrative law to public-sector employees merely because they are employees. If the power exercised or the function performed is public and in terms of legislation, the remedies of administrative justice must be available to public sector employees.

Keywords: Administrative law, employment law, public sector contracts