South African Labour Laws Apply to Sex Workers

CAPE TOWN May 28

 

A Cape Town woman claiming unfair dismissal from her job as a sex worker has won a precedent-setting ruling that she is entitled to protection under South African labour law.

 

Labour Appeal Court president Dennis Davis said in a judgment handed down on Friday that the ruling "cannot and does not" sanction sex work.

 

However, he said,

 

He ruled that the Commission for Conciliation, Mediation and Arbitration (CCMA) which initially rejected the case, indeed "has jurisdiction to determine the dispute between the parties in the present case".

 

The 43-year-old former sex worker, who has been identified only as "Kylie", said on Friday afternoon she burst into tears when she heard the ruling.

 

"I'm glad: I'm very glad," she said at the offices of the Women's Legal Centre (WLC).

 

"It's been a long, tough road.

 

"I hope it's going to change a lot of things for girls that are still in the business.

 

"What gets done to the girls in the [escort] agencies is not fair. I've come this far: I'm not going to stop now."

 

Kylie was fired in 2006 from her job at Brigitte?s Massage Parlour in the city.

 

Claiming unfair dismissal, she approached the CCMA, but it refused to hear the merits, saying that because she was not working in a legal job, it did not have jurisdiction.

 

The Labour Court also ruled against hearing her, saying the right to claim unfair dismissal did not apply when the acts involved were illegal.

 

Davis, with two other judges agreeing, said sex workers could not be stripped of the right to be treated with dignity by their clients, the same protection should hold in their relationship with their employers.

 

including Kylie.

 

It appeared from papers in the case that she had been required to work 14 hours a day, seven days a week, and was subjected to a strict regime of rules and fines.

 

"Her dignity is not to be exploited or abused," he said.

 

"This remains intact and the concomitant constitutional protection must be available to her as it would to any person whose dignity is attacked unfairly."

 

Davis said it would clearly be against "public policy" to order the reinstatement of a sex worker in her job even if she could show that her dismissal was unfair.

 

"But that conclusion should not constitute an absolute prohibition to, at least, some protection provided under the LRA [Labour relations Act], a protection which can reduce her vulnerability, exploitation and the erosion of her dignity."

 

He said the award of financial compensation as "solatium" for a procedurally unfair dismissal would be more appropriate than compensation for loss of income from a job that was illegal.

 

WLC director Jennifer Williams said the

 

"I am very pleased that the Labour Appeal Court emphasised that our client Kylie has a right to dignity," she said.

 

Williams said the case, plus Davis' judgment, would now be referred back to the CCMA, which had no option to refuse to hear it.

 

She said Kylie would now have to show she was unfairly dismissed, an issue which neither the CCMA nor the Labour Court have yet deliberated on.

 

Kylie said on Friday that after being fired from Brigitte's, she had worked on her own as a sex worker for about six months.

 

Since then she had been largely jobless, and was trying desperately to find other employment after recently leaving what she said was an abusive boyfriend.

 

"I'm struggling to find work. I'm 43 years old: finding work is tough, but I knew that."

 

Her case made headlines after she was dismissed for allegedly being too selective about her clients and refusing to perform oral sex.

 

According to court papers, Kylie worked at Brigitte?s Massage Parlour in Bellville for about 10 years before Michelle van Zyl, trading as Brigitte, fired her in April 2006.

 

The reasons provided were that Kylie allegedly failed to do enough bookings, did not manage her time, chose specific clients, refused to perform oral sex and spent time in her room with her boyfriend, who was not a paying customer.

 

The Women?s Legal Centre assisted her in taking legal action on the matter.

 

While Kylie refused to comment on the settlement, a lawyer at the centre, Stacey-Leigh Manoek, said: ?The parties signed a financial settlement on October 25, the exact terms of which are confidential.

 

But Kylie?s battle for justice has been a struggle. In August 2006 the CCMA?s commissioner Bella Goldman ruled that the commission did not have jurisdiction over a case of this nature. Kylie then approached the Labour Court, but the court declined to enforce her rights because the nature of her work was illegal. Kylie also tried to approach the Constitutional Court but was directed to the Labour Appeal Court in Joburg, where she was represented by top advocates Wim Trengove and Colin Kahanowitz.

 

In May the Labour Appeal Court ruled that the CCMA did have the jurisdiction to handle Kylie?s case. This ruling led to the out-of-court settlement.

 

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