On 28 May 2010 the Labour Appeal Court reversed that decision – see Kylie v CCMA (Michele van Zyl t/a Brigittes). In a unanimous judgment Davis JA upheld Kylie’s appeal and reviewed and set aside the CCMA’s ruling and declared that the CCMA has jurisdiction to determine the unfair dismissal dispute between the parties.
Kylie’s appeal upheld: During April 2006 Kylie (not her true name), who worked in a massage parlour performing various services for reward, had her contract of employment summarily terminated. An unfair dismissal dispute was referred to the CCMA but on 11 December 2006 the CCMA ruled that it did not have jurisdiction to arbitrate the dispute because Kylie’s employment was unlawful.
On review and on 31 July 2008 Cheadle AJ in the Labour Court held that the definition of an ‘employee’ in the LRA was wide enough to include a person whose contract of employment was unenforceable. But under the common law Kylie was not entitled to protection against unfair dismissal in terms of the LRA because it would be contrary to common law principles entrenched in the Constitution.
The Labour Court judgment is reported Kylie v Michele van Zyl t/a Brigittes [2008] 9 BLLR 870 (LC).
In effect the LAC held that a person in Kylie’s position, who may have been unfairly treated, should not be deprived of the right to protection. Davis JA went on to state in para [56]:
“When it comes to the question of remedy, each case will have to be decided in terms of the facts thereof. Manifestly, not all persons who are in an employment relationship which is prohibited by law will enjoy a remedy in terms of the LRA”.
I’ve read through the LAC judgment quickly and find the reasoning most enlightening. I do hope it will draw more comments than recent items have, Graham, as several points deserve wider discussion and dissemination. Perhaps I can, frivolously, suggest you should use catchier headlines? How about “SEX WORKERS CAN STRIP BUT CANNOT BE STRIPPED – LAC”? (this with reference to paragraphs 25 and 26 of the judgment. Why else do learned judges say “strip” when they could as correctly have said “deprive”?
I have found several of the recent items interesting too, by the way.
Thanks again Theo. The last time I used a catchier headline I had Paul Benjamin making a joke of it. You must read the post “Paul Benjamin’s take on Kylie and my earlier post about Kylie and Cheadle AJ.
One also has to be very careful sending emails with naughty words because they get blocked by scam checkers.
I very much regret missing it at the time; thanks Graham for referring me to the posting. I have just read it and loved it! I am amazed that it drew so little response, but am grateful that my moan about the lack of comment and response to other items led me to it. Thanks Paul – who says the law is an ass? It’s a hyena!