RE implied term to be treated fairly
unfortunately those arise from the development of fair treatment of the employee (LRA right) and is not an specific term of the contract unless the contract stipulate the process that need to be followed.

My view is that the court in Gcaba is mistaken. Because the contractual term is implied it does not automatically put it in the ambit of the High court. My view is only when the terms of fair process arise directly from the contract would the particular stipulation be impugned and would the high court have jurisdiction.
I disagree however with the idea that just because the contract arise from an contract of employment that the LRA should automatically be the appropriate forum.

I also have the view that because the labour court is a specialist court the SCA should not even be dealing with Labour matters as the LAC are equal to it when dealing with issues relating to appeal. (I think the constitution make provision that the SCA is the highest court of appeal and this creates problems because of the specialist nature of Labour matters) So a person can appeal After the LAC to the SCA and they have created Balls-up in the past such as the Sidumo matter.

Where the (majority) Concourt got it wrong in Chirwa was to make a finding that High Court did not have jurisdiction to adjudicate Chirwa’s claim and at the same time found that her dismissal did not constitute administrative action. The correct finding, as eloquently expressed in Makhanya, was that High Court had jurisdiction to adjudicate PAJA claims and dismissed her claim because of her failure to meet the requirements of PAJA i.e. impugned action ought to be administrative action first.

Regarding contractual claims based on employment contract – it is not as clear as you may want it to be. In a recent SCA judgment the common law of contract was developed to include an implied term that every dismissal ought to be preceeded by a fair hearing. That entitles an employee to approach High Court to enforce that implied contractual term. According to Chirwa, such claim should be dealt with by LRA forums because it is nothing other than a claim of unfair dismissal-but according to Gcaba,if an employee relies specifically on the implied contractual term, High Court retains its inherent jurisdiction.

read Makhanye.

the premise on mhakanye differ from Chirwa still.
Mhakanye focus on the contract.
The question as i understand wolfardt is whether the fair action arise directly from the contract. if the contract stipulate the process to dismiss. it would form part of contract and therefore be non compliance with a contractual provision. if the contract indicate the termination depends on policy. then policy equals mere guidelines. and guidelines the courts generally agree can be deviated from unless such deviation is in material aspect of the rights of the employee. guidelines therefore = LRA action rather than pure commonlw right based on contract.

I need to read the facts in the lillicrap. if the engineers was independent contractors, their contract would fall in ambit of contractual rather than a LRA right. If employees then unfortunately LRA right.
I believe that A court need to take preliminary facts in consideration before merely deciding whether its an LRA right. In CC matter of chirwa it was said that the fact that the fact that the institution is a State institution does not automatically make all its actions Administrative in nature.
I view therefore that the fact that a person is an employee does not automatically render the claim automatically an LRA right.

Chirwa deal with whether the matter before the court can be considered Administrative action leading to it being a constitutional matter with the claims focus being denial of her constitutinal right to fair administrative action.
if Dismissal dont lead to administrative action then no constitutional right to defend. if however the court concluded that the dismissal was an administrative action then her claim would have concurrently been a right that could be enforced under both PAJA and LRA. So Chirwas claim had to fail.

Clearly in Chirwa is the determination of what type of action the dismissal purported to be.
My problem with the current finding is that the employee should have tried to enforce his right before (seems to me he resigned). therefore he unilaterally decided to terminate his contract. Seems to me still to fall within the ambit of the LRA (Constructive dismissal) the LRA would therefore have exclusive jurisdiction as it is a dismissal as defined in the LRA.

The question therefore for me exist when the employee should be able to
exercise his right in terms of the contract. if he tries to enforce the contract via interdict, he may fail because other remedies in terms of the LRA is available. I would argue that if all internal remedies in trying resolve the matter has been complied with only then would he be able enforce his right in terms of the contract in the high court (issue of Salary not being paid directly in relation to the contents of the contract).
Concurrent jurisdiction is given to civil court where the claim arise from conditions of the contract.

In Fijen v CSIR the court said that the rule is that the employer should not act in any manner which forces the employee to terminate the contract of employment. A rule coming from english law. so my view is only if the contract make explicit provision for the procedure to be followed on termination or the manner whereby the employer would be forced to comply with a breach of contract would the employee have strict recourse to contract.

My view on Jurisdiction is that the court need to make a preliminary finding on the matter to determine whether jurisdiction exist.

with respect the Makhanye matter(focused on contractual right) before the judge differed from Chirwa (focused on right to adminstrative action)although both relate to a matter of dismissal. The questions however asked is different.

…Now read Makhanya v Iniversity of Zululand (SCA judgment)

unless you are saying that the problem experienced is that the CC were vague in clarifying certain issues that it had to decide and that the CC should have clearly indicated that Chirwa overuled Frederiks by indicating that all cases involving the contract of employment is not administrative action.

I would have to think about this if the last paragraph is what is being said, because I do not believe that the mere fact that a person is an employee competely exclude administrative action whenever processes are enacted which affect his rights.

Gcaba seem to be asking to be appointed in the position and that put his matter completely within the ambit of the LRA=Labour court jurisdiction rather than dealing with the manner in which the decision was taken.

The focus on Chirwa was also whether the standard of review should be that of PAJA and not the LRA. The court indicated that because of the Specialised nature of review under LRA that PAJA as general Legislation cannot trump provisions in the LRA.

unless you are saying that the problem experienced is that the CC were vague in clarifying certain issues that it had to decide and that the CC should have clearly indicated that Chirwa overuled Frederiks by indicating that all cases involving the contract of employment is not administrative action.

I would have to think about this if the last paragraph is what is being said, because I do not believe that the mere fact that a person is an employee competely exclude administrative action whenever processes are enacted which affect his rights.

Gcaba seem to be asking to be appointed in the position and that put his matter completely within the ambit of the LRA=Labour court jurisdiction rather than dealing with the manner in which the decision was taken.