Labour Appeals Court of South Africa, CA 10/08

Facts

The appellant was a sex worker who was employed in a massage parlour. She alleged that she was unfairly dismissed from her employment and referred her dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for arbitration. Before the arbitration commenced, the Commissioner held that the Commission did not have jurisdiction to arbitrate on an unfair dismissal in a case of this nature. The appellant sought judicial review of this ruling in front of the South African Labour Court.

The Labour Court held that because sex work was illegal, the appellant’s employment contract was void and thus unenforceable. The Court held that a sex worker was not entitled to protection against unfair dismissal within the meaning of Section 185(a) of the Labour Relations Act (LRA) because to provide such protection would be contrary to the common law principle, incorporated in the Constitution that a court ought not to sanction or encourage illegal activities.

The Court held that although section 23 of the Constitution of South Africa provides that “everyone has the right to fair labour practices,” it did not protect a person engaged in illegal employment.

The appellant lodged an appeal against this ruling to the Labour Appeals Court.

Decision and Reasoning

The Labour Appeals Court upheld the appeal and held that constitutional rights, including the right to fair labour practices, vest in everyone, even if no formal contract of employment is concluded and even if the work is illegal. Consequently, the appellate court considered that the CCMA had jurisdiction to determine the appellant’s dispute.

The Labour Appeals Court also held that the appellant was to be considered as an employee for the purposes of the LRA and the Constitution. The Court noted that sex workers could also be entitled to form and join trade unions although collective agreements between brothels and sex workers which amount to the commission of a crime would not be enforceable.