“Kylie” and the jurisdiction of the CCMA.

1. “Kylie” and the jurisdiction of the CCMA. Adv. Denine Smit Department of Mercantile Law University of the Free State 17-01-2011

2. The story line • “Kylie” was a prostitute who worked 14 hours a day, 7 days a week and lived in a brothel ,“Brigittes”, where she also acted as a masseuse. • “Kylie” got dismissed for alleged misconduct and felt gravely aggrieved by this. • She then approached the CCMA to effect compensation for this alleged unfair dismissal. • Important to note that it was never in dispute that she at times performed sexual duties in exchange for money and that the nature of her “job” was criminalised by South African Legislation. • “Kylie” is an assumed pseudonym to protect her and her clientele’s identity and Van Zyl is the madam of “Brigittes.” The citation reads:”Kylie”/van Zyl t/a Brigittes” on arbitration.

3. Story line - continued ”Kylie” is a legal subject but her chosen vocation is not. • However, her ALLEGED unfair dismissal lead to this matter being heard by the CCMA, the Labour Court, the Labour Appeal Court and a referral back to the CCMA. A utilisation of all 3 fora created by the LRA for employees to challenge their dismissals. • The journey to be taken through the “Kylie” cases will endeavour to show how the LAC reached its conclusion to now include prostitutes engaged in illegal ”jobs”, into the sphere of “employees” and thereby granting them labour law protection by the labour tribunals and - courts.

4. Back to basics-Labour Law Principles • Who could approach the CCMA and labour courts to rule on alleged unfair dismissals? • -employees (common law or statutory) • - or those who were regarded as employees or • those in an employment relationship • -Exclusions- • -the LRA itself or the courts • – prostitutes as a category had not been named specifically. • As a matter of interest- it deems to be mentioned that with the envisaged new Employment Services Bill, the definition of “employee” might change substantially for purposes of the LRA. • A dismissal also had to be proven before jurisdiction could be assumed by the CCMA. What is a dismissal? • see section 186(1)of the LRA which reads (a) “an employer has terminated a contract of employment with or without notice” which necessitates a ”contract of employment”.

5. Labour Law Principles (Continued) • Pre “Kylie” it was accepted that a contract of employment had to be valid and enforceable and that the normal principles applicable to contracts, had to be honoured by those in an employment contract. • The old common law principle of ex turpi causa non oritur actio – thatcourts should not promote illegal activity -formed an ever important component of the law. • The in pari delictum rule also rules against court assistance where parties contracted illegally. • There is also an age old principle in law being that the legislature refers only to legal activities and not illegal activities ,where interpretation is the bone of contention(Union Government v Schierhout 1925 AD 322). • NOW , post “Kylie” the situation is different.

6. Post “Kylie” • An employee could/can be a person who is not party to a contract as such. (Denel (Pty)Ltd v Gerber 2005 26 ILJ 1256 ( LAC)) • You need not be engaged in legal “work” to fall under the protection of section 23 of the Constitution • A Prostitute is an employee and a madam or pimp by implication an employer. • “Employee” is broad enough to encompass this category of employees, but more about this later.....

7. But lets start our journey at “Kylie’s” workplace

8. Kylie’s workplace -”Brigitte’s” Living in a brothel is a criminal act AND Performing sexual deeds for money is a criminal act. The Sexual Offences Act prohibited both actions see section 20(1)(a). The SOA has subsequently been repealed by the Criminal Sexual Offences and Related Matters Amendment Act, Act 32 of 2007,but both actions referred to infra are still prohibited. BRIGITTE’S

9. CCMA LABOUR COURT LABOUR APPEAL COURT

10. CCMA LABOUR COURT LABOUR APPEAL COURT

11. CCMA LABOUR COURT LABOUR APPEAL COURT

12. CCMA LABOUR COURT LABOUR APPEALS COURT LABOUR APPEAL COURT

13. CCMA • Commissioner mero motu queried jurisdiction due to the nature of the job of the applicant. • The CCMA found in “Kylie”/Van Zyl t/a Brigittes (2007) 4 BALR 388 (CCMA) that this creature of statute lacked jurisdiction to entertain the dispute mainly due to the fact that jurisdiction at CCMA level was dependant on “Kylie” being an employee based upon: • an employment contract which in this instance could not be valid or enforceable in that the Sexual Offences Act, Act 23 of 1957 prohibited living in whole or part on the earnings of prostitution and also having unlawful carnal intercourse • That the contract of employment was void ab initio

14. CCMA (Continued) • But is was against this ruling on the absence of jurisdiction that a review to the LC was lodged. xx

15. Labour Court • Where the CCMA was primarily concerned with the validity and enforceability of the contract of employment, the LC accepted that an employment relationship was in existence but was concerned with the effect of the enforcement of section 23 of the Constitution. • Section 23 of the Constitution extended fair labour practice rights to ALL, not only employees. This would afford the owners of this right not only the right to fair labour practises but the right to right to organise, strike, claim constructive dismissal etc. • If the legislature prohibited prostitution, how could the CCMA assume jurisdiction and order reinstatement as an award? Would that not amount to the undermining of the legislature or pass moral judgment? • More that that, it has to be kept in mind that the CCMA, LC, LAC are creatures of statute, created to give effect and regulate, amidst others, section 23 of the Constitution, not to undermine it.

16. Neither is it the task of the courts to create law, the purpose of these fora is to enforce the law. • Who can change the existing law? Only the Legislature or Constitutional Court can change the existing laws. • The LC argued that the common law rule of ex turpi causa non oritur actio tied the hands of the courts and tribunals because that if jurisdiction would be assumed, • it would be sanctioning or encouraging commercial sex which is prohibited by law -the SOA- thus in effect protecting the actions prohibited by the legislature himself. • This surely could lead to an absurdity if the courts enforced rights pertaining to illegal conduct ,criminalised by the legislature?

17. Labour Court( Continued) • The judge regarded it a constitutional imperative not to encourage illegal activities- both in the private law arena as well as the statutory legal arena. He regarded it a value . • The judge found here that “Kylie” was not entitled to protection under section 23 of the Constitution because she was not a holder of the rights afforded by section 23 as she was “employed” in an illegal job which robbed her of any statutory rights linked to employment even if she was an employee for all legal purposes. • It was argued that if such rights were recognised by the courts , it would encourage illegal jobs, which is not permitted by law. • By implication the interpretation of “everyone” in section 23 of the Constitution did not extend to prostitutes for fear of promoting criminalised conduct xx

18. LAC • The finding by the LC was appealed and the matter ended up at the LAC and was reported in 2010. • The LAC stressed that the term “everyone” should be given the widest possible meaning , so wide as to accommodate prostitutes by implication. • The fact that illegal activities were engaged in did not rob this category of people of all their constitutional rights(S v Makwanyane 1995 (3) SA 391 CC) • and did the LAC find in “Kylie” that this category or people are entitled to be treated with respect by their customers and by their employers • and stressed that because section 23 of the Constitution has at its heart the protection of the dignity of those in an employment relationship, prostitutes as a category of employees were entitled to the Constitutional protection granted by section 23 thereof.

19. LAC continued • The LAC also confirmed that an employment relationship was no longer dependant on a valid contract of employment post Discovery Pty Ltd v CCMA and others (2008) 7 BLLR 633 (LC) which in itself posed new problems: • How could an instruction to “prostitute “ be a legal instruction? • How could you then lawfully dismiss a person for not wanting to perform certain acts which have been criminalised in any event? • However, this anomaly was not addressed by the LAC.

20. LAC continued • The relief argument i.t.o jurisdiction poses a problem in itself. • It is compulsory to order reinstatement if so requested by the applicant in certain instances- but can a court reinstate a prostitute into her chosen vocation – which is criminal? • The LAC was not asked to rule on this but obiter remarked that it would be inappropriate to do so here and suggested compensation, as had been requested in this instance. • There is a problem with this as well in that to a certain degree, the spoils of an illegal activity is awarded as a solatium to a disgruntled ex employee? Surely this could not be in line with the ex turpi principle .

21. How did the LAC arrive at the finding that the CCMA should assume jurisdiction and on those grounds and refer the matter back to the CCMA to be arbitrated? • A wide interpretation of the word employee and the employment relationship. • A wide interpretation of the effect and reach of section 23 of the Constitution • Confirmation that an employment relationship can exist in the absence of a contract • A clear distinction made between illegal ‘work’ v illegal contracts- ‘Kylie’ merely performed an illegal job which did not negatively impact on her employment status. • For the CCMA to assume jurisdiction , the only question to be answered was whether there was a contract of employment, or whether she was an employee or presumed to be an employee, the existence of an employment relationship either by means of the common law or statute or presumption created.

22. How did the LAC arrive at the finding that the CCMA should assume jurisdiction and on those ground refer the matter back to the CCMA to be arbitrated? • An argument that Prostitutes as a group is vulnerable and that they needed protection from exploitation • and that they do not lose their constitutional rights merely because their actions contain elements of criminality. • An argument wide enough to allow for a choice by the Commissioner re an appropriate order upon a finding of guilty - unfair dismissal • Focussing less on the common law principles of in paridelictumand the ex turpi rule and • focussing more on the purpose of the LRA and Constitution • and the exceptions to the old common law rules i.e. common justice exception to the ex turpi principle.

23. Jurisdiction of the CCMA and the risks - post -“Kylie” • It could lead to absurdities in that prostitutes as employees can organise, form unions, strike, claim constructive dismissal.

24. The risks - post -“Kylie” • That Madams/Pimps could be regarded as employers and exercise their labour rights as granted to all other employers • That the same applies to prostitutes as employees.

25. The risks - post -“Kylie” • That prostitutes are entitled to all the rights as other employees as per the LRA, and other labour related legislation. LABOUR COURT

26. The risks - post -“Kylie” • This invariably would lead to the promoting of illegal activity which the legislature specifically prohibited- being prostitution.

27. The risks - post -“Kylie (continued) • These findings in “Kylie” could open the door to similar reasoning in other illegal or criminalised jobs i.e. mafia activities , hit men situations, illegal gambling......

28. The risks - post -“Kylie (continued) • Who decides who or which groups are vulnerable to enjoy labour law protection - especially if the legislature prohibited and criminalised these acts?

29. Almost the ENDJurisdiction and the CCMA • None the less- it stand clear now that prostitutes are employees • That the absence of a contract of employment is no barrier to the status of employee • That prostitutes are entitled to fair labour practises • That they are entitled to have their dismissals/unfair labour practises evaluated by the different tribunals and labour courts • That the CCMA in principle has a choice as to an appropriate award. • THE LAC ordered the matter back to the CCMA to be heard BUT Alas-----

30. A settlement was reached – terms undisclosed- we will thus have to wait for another “Lady of the Night” to follow suit and see how the CCMA deals with this prickly pear.

31. THE END

32. The New Proposed Employment Services Bill • New proposed definition of employee for purposes of the LRA: • “a person employed by or working for an employer, who receives or is entitled to receive any remuneration , reward or benefit and works under the direction or supervision of an employer.”