Kylie v. Commission for Conciliation, Mediation and Arbitration and Others

1. Case Title & Citation 

Case Name: Kylie v. Commission for Conciliation, Mediation and Arbitration and Others 

Court & Citation: Labour Court of South Africa, Case No.: CA10/08

2. Court & Bench

Court Name: Labour Appeal Court of South Africa

Judges: Davis JA, Zondo JP, and Jappie JA

Bench Type: The judgement was delivered by a full bench of the Labour Appeal Court.

3. Date of Judgement 

20 May 2010

4. Parties Involved

Appellant: Kylie, a sex worker who sought to protect her identity and was the original applicant in the matter.

First Respondent: Commission for Conciliation, Mediation and Arbitration (CCMA)

Second Respondent: Commissioner Bella Goldman, who initially ruled that the CCMA lacked jurisdiction to hear the case.

Third Respondent: Michelle van Zyl t/a, the employer, who terminated Kylie’s employment.

5. Facts of the Case

The appellant, “Kylie”, was employed as a sex worker in a massage parlour to perform various sexual services for a reward. On April 27, 2006, her employment was terminated without a prior hearing. The reasons for her dismissal were not relevant to the subsequent legal dispute. On August 1, 2006, the appellant referred the dispute to arbitration at the CCMA.  Before the matter could proceed, the second respondent, the commissioner, questioned whether the CCMA had the jurisdiction to hear the case, given that the appellant was a sex worker and her employment was considered unlawful.

On December 11, 2006, the Commissioner issued a ruling that the CCMA did not have jurisdiction to arbitrate a case of unfair dismissal related to unlawful employment. The appellant then brought this ruling before the Labour Court on review.

6. Issues Raised 

The primary legal issue addressed by the Labour Appeal Court was whether a sex worker, whose contract of employment is unlawful under common law, is entitled to the protection against unfair dismissal as provided for in Section 185(a) of the Labour Relations Act 66 of 1995 (LRA)  and Section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. 

More specifically, the court had to determine:

Whether the definition of “employee” in the LRA is broad enough to include a person in an employment relationship that is considered unlawful under the common law.

Whether public policy, as derived from the rule of law and the constitutional principle that courts should not sanction illegal activity, precludes a sex worker from enjoying constitutional rights to fair labor practices.

Whether a remedy such as reinstatement, which is a primary remedy for unfair dismissal under the LRA, would amount to a court ordering the commission of a crime, thereby sanctioning illegal activity.

7. Arguments of the Parties

Reasoning of the Labour Court (Court a quo): The Labour Court, presided over by Cheadle AJ, held that while the definition of an “employee” in the LRA was broad enough to include a person with an unenforceable contract, a sex worker was not entitled to protection against unfair dismissal because it would be contrary to a common law principle that courts should not “sanction or encourage illegal activity.” Cheadle AJ invoked the principle of  ex turpi causa non oritur actio, which prohibits the enforcement of immoral or illegal contracts. He reasoned that because the Sexual Offences Act 23 of 1957 criminalizes aspects of sex work, any contract of employment related to it is illegal and thus void and unenforceable as being against public policy.

Cheadle AJ also addressed the constitutional question, concluding that granting fair labour practice rights to a sex worker would undermine the fundamental constitutional value of the rule of law by sanctioning legally prohibited activity. He further argued that the primary remedy of reinstatement would be particularly problematic, as it would not only sanction illegal activity but could also constitute an order for the employer to commit a crime. In an alternative analysis, he concluded that even if Section 23 of the Constitution did apply, the Sexual Offences Act would constitute a justifiable limitation on those rights.

Appellant’s Case: The appellant’s counsel, Mr. Trengove, argued that the proper approach was to begin with the Constitution, specifically Section 23, and not the common law principles of contract. He contended that the LRA must be interpreted in a way that implements the Constitution’s primary objects. He submitted that the phrase “everyone” in Section 23(1) of the Constitution (“Everyone has the right to fair labour practices”) is a term of “general import and unrestricted meaning”. He supported this with Constitutional Court precedents, such as S v Makwanyane, which established that constitutional rights, including the right to dignity, vest in every person, even criminals. 

Mr. Trengove also drew on the minority judgment in S v Jordan, which stated that prostitutes are not “stripped of the right to be treated with dignity by their customers”.  He argued that by logical extension, this dignity must also be afforded by their employers. He submitted that the focus of Section 23 is on the employment relationship itself, not necessarily a formal contract of employment, and that the substance of the relationship should be considered over its legal form. Therefore, a person engaged in an employment relationship, even an illegal one, should be covered by Section 23.

8. Judgement / Final Decision

The Labour Appeal Court unanimously upheld the appeal. The court set aside the order of the Labour Court and replaced it with an order that the CCMA’s ruling on jurisdiction was reviewed and set aside. The court also ordered that the CCMA has jurisdiction to determine the dispute between the parties.

9. Legal Reasoning/Ratio Decidendi 

The Labour Appeal Court, per Davis JA, began its reasoning by analysing the appellants’ submissions, agreeing that the constitutional question must be the starting point. The court found that the term “everyone” in Section 23 of the Constitution is all-encompassing and that a person’s involvement in an illegal activity does not automatically strip them of their constitutional rights. The court referenced the minority judgement.

S v Jordan, which affirmed that sex workers are not stripped of their right to be treated with dignity, even by their customers. The court reasoned that this dignity should also extend to the relationship with their employers. The court stated that the constitutional right to fair labour practices protects the dignity of those in an employment relationship and that this right should apply to the appellant.

The court adopted a generous approach to the definition of “employee” and “employment relationship”, emphasizing that the substance of the relationship is more important than its legal form. It cited cases like State Information Technology Agency (Pty) Limited v CCMA and Denel (Pty) Ltd v Gerber to support the view that the court should not allow the form of an agreement to disregard the reality of the relationship, which could be abused to circumvent important labour legislation.  

The court further reasoned that a labour practice, such as the termination of employment, remains a labour practice regardless of whether the work itself is legal or illegal. The court rejected the argument that granting a remedy would sanction or encourage illegal activity. The court distinguished between acknowledging the existence of an employment relationship for the purpose of protecting constitutional rights and enforcing the illegal contract itself. The court held that upholding the right to a fair hearing regarding dismissal does not legitimise the illegal activity of sex work. It merely ensures that the employer, like a client, treats the sex worker with the dignity and fairness they are entitled to under the Constitution.

The court concluded that the Act does not intend to preclude the recognition of rights or claims arising from the employment relationship itself, only to penalise the prohibited activity. While the court recognised that a remedy of reinstatement would indeed be a difficult issue, it held that the difficulty of the remedy does not negate the existence of the right to protection against unfair dismissal. The court affirmed that the CCMA had jurisdiction to hear the case, and the matter could proceed to a determination on the merits of the unfair dismissal, including the appropriate remedy.

10. Conclusion 

The Labour Appeal Court’s decision in Kylie v. Commission for Conciliation, Mediation and Arbitration and Others is a landmark judgement that significantly expands the scope of labour protection in South Africa. The court’s ruling establishes that the constitutional right to fair labour practices applies to all persons in an employment relationship, regardless of whether the work itself is illegal. The judgement affirms that even those engaged in illegal activities retain their fundamental constitutional rights, including the right to dignity and fair treatment by their employers. By focusing on the substance of the employment relationship rather than the legality of the contract, the court ensured that vulnerable workers, such as sex workers, are not stripped of their basic human rights to due process and fairness. The decision represents a significant victory for the protection of workers’ rights and the broad interpretation of the Constitution in South African jurisprudence.

Bibliography 

Cases

• Denel (Pty) Ltd v Gerber 2005 (9) BLLR 849 (LAC)
• Kylie v Commission for Conciliation, Mediation and Arbitration and Others (CA10/08) [2008] ZALC 10 (LC)
• S v Jordan 2002 (6) SA 642 (CC)
• S v Makwanyane 1995 (3) SA 391 (CC)
• State Information Technology Agency (Pty) Ltd v CCMA and Others [2008] ZALAC 12

Legislation

• Constitution of the Republic of South Africa, 1996
• Labour Relations Act 66 of 1995
• Sexual Offences Act 23 of 1957