On 31 July 2008 Cheadle AJ, an acting Judge in “Kylie” v CCMA [2008] 9 BLLR 870 ; (2008) ILJ 870 (LC), reviewed and altered a ruling by the CCMA dated 11 November 2006 by refusing “Kylie” the right to claim 12 months “remuneration” as compensation.
Note: The judgment was appealed to LAC and judgment given on 28 May 2010 per Davis JA.
“Kylie”, worked in the Brigittes massage parlour before her services were terminated. She claimed she had been unfairly dismissed, as understood in the Labour Relations Act, 1995 (“LRA”).
Cheadle AJ decided that her claim, based on the statutory right not to have her services unfairly terminated, was unenforceable.
A major finding was that the common law of South Africa and the Constitution recognise a fundamental principle that courts should not sanction nor encourage illegal activity and this also applies to claims based on statutory rights.
This means that the scope of labour rights in section 23 of the Constitution does not include certain categories of workers as bearers of those rights or alternatively the Sexual Offences Act, 23 of 1957 prohibiting organised prostitution is a justifiable limitation on the scope of section 23.
The judgment expressly states that it does not decide that sex workers are not employees for the purposes of the LRA. It simply decided that neither the Labour Court nor the CCMA should enforce the statutory right not to be unfairly dismissed.
Cheadle AJ stated that the entitlement of sex workers in general to rights under other protective statutes
“has to be determined on a statute by statute analysis in order to determine whether by enforcing the right or granting the benefit under the particular statute the courts or the decision maker will be sanctioning or encouraging the prohibited activity of organised prostitution”.