Johannesburg — THE Constitutional Court yesterday sought to clarify an uncertainty that has been plaguing the courts for more than a year: if a public servant wants to challenge an employment- related decision of his employer, which court should he go to, the labour court or the high court?

As a result of the uncertainty, lower court judgments have varied widely and litigants do not know where to go. Yesterday, on behalf of a unanimous court, Judge Johann van der Westhuizen acknowledged the uncertainty and said: "This matter gives this court ... an opportunity to provide some clarity and guidance."

The legal question arose in the case of policeman Vuyile Gcaba, who approached the high court saying his employer's decision not to promote him should be reviewed and set aside under administrative law.

Gcaba could have gone to the labour court under labour law procedural fairness rules, but did not.

The question the Constitutional Court had to decide was whether the high court had jurisdiction to hear his case.

It also had to decide whether the decision not to promote Gcaba constituted administrative action.

The court held that both the high courts and the labour court had jurisdiction to hear employment-related disputes where constitutional rights were implicated.

But the court also said a decision of an employer in relation to an employee, even where the employer was the state, was generally not an administrative decision.

Van der Westhuizen said: "The ordinary thrust of section 33 (of the constitution -- the right to administrative action that is lawful, reasonable and procedurally fair) is to deal with the relationship between the state as bureaucracy and citizens.... (It) does not regulate the relationship between the state as employer and its workers.

"When a grievance is raised by an employee, relating to the conduct of the state as an employer, and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action," the judge said.

If an employee chooses to take a dispute with his employer to the high court on an administrative law basis, he does so at his peril. This is because, while his case could, in principle, be heard by the court, he would be most likely to lose.