Dear Reader

Sex workers win some unfair dismissal rights from the Labour Appeal Court

On 29 May 2010 the Labour Appeal Court handed down judgment in the case of a sex worker (referred to as Kylie) who was unfairly dismissed by the brothel employing her.  The judgment is a step forward in the rights of sex workers in South Africa.   It overturned the previous judgment of the Labour Court which said that, although a sex worker employed by a brothel was an employee for purposes of the Labour Relations Act, the worker wasn’t entitled to protection against unfair dismissal.

The Constitution protects everyone

The LAC held that the constitutional right to fair labour practices is expressed in the Constitution including “everyone”, which is wide enough to include a person employed in an illegal activity (such as a sex worker).  It pointed out that, just because the work performed by a sex worker is illegal, this shouldn’t take the sex worker’s rights to be treated with respect and dignity by others, such as the police and the sex worker’s customers.  By logical extension, the employer of a sex worker had similar obligations to the sex worker, including the obligation to observe fair labour practice in the employment relationship.

However, the LAC didn’t go as far as holding that unfairly dismissed sex workers could obtain reinstatement orders when they’d been unfairly dismissed.  It found that an order of reinstatement in favour of a sex worker would violate the provisions of the Sexual Offences Act, which criminalises sex work.  Similarly, the LAC indicated that compensation for substantive unfairness (i.e. where there was no fair reason to dismiss) would amount to the monetary equivalent of reinstatement for the loss of employment, and it would probably be inappropriate to award this to sex workers given that they render illegal services.

Procedural fairness applies to all employers - even brothel owners

If the LAC had stopped at the above findings, Kylie would have been left with no practical and effective remedy against the brothel that unfairly dismissed her.  However, the LAC went on to find that an unfairly dismissed sex worker like Kylie could well be entitled to monetary compensation if her dismissal was procedurally unfair. This is because the compensation is for the loss by an employee of her right to a fair procedure, and not compensation for rendering illegal services.  Awarding compensation for the infringement of the right to fair procedure would not offend the Sexual Offences Act, and would be appropriate.

Unless one of the parties appeals against this judgment, Kylie must now return to the CCMA and seek an award of compensation for the procedural unfairness in her dismissal.  How much a CCMA arbitrator is prepared to award to her for this, remains to be seen.  The maximum possible award is 12 months’ remuneration.

For the brothel owners, it seems that they need not be worried about whether they have a fair reason to dismiss their sex workers - they must just make sure that they follow a fair procedure in doing so.

Until next month...

Susan Stelzner
Editor-in-chief
Labour Law for Managers Practical Handbook