“Kylie” and Van Zyl t/a Brigittes: Terms of Reference
29-JUN-07
“Kylie” and Van Zyl t/a
Brigittes
Case No. WE7511-06
Award Date: 11 December 2006
Jurisdiction: Cape Town
Commissioner: B Goldman, Commissioner
Subject: Terms of Reference/ Jurisdiction
Issue:
The applicant was employed as a ‘masseuse/sex worker’ by the respondent, a licensed massage parlour. The applicant’s employment was terminated and she referred a dispute to the CCMA. The issue related to whether the CCMA had jurisdiction to entertain the claim.
Summary of Facts:
The facts were not in dispute. The respondent had a licence to conduct the business of a massage parlour; the applicant performed the role of a ‘masseuse/sex worker’ and received remuneration. The applicant was, in effect, engaging in prostitution and the respondent was keeping a brothel; both of which are in contravention of the Sexual Offences Act 1957.
Summary of Judgment:
The Commissioner’s starting point was that for a contract of employment to be enforceable it must not contain provisions that are unlawful.
The applicant relied on a number of different grounds to argue that the CCMA had jurisdiction.
1. Application of the LRA to
illegal work
The applicant cited a number of examples where the CCMA
assumed jurisdiction of matters where an employee had
committed acts of illegality. The Commissioner distinguished
those decisions from the current circumstance in that the
former involved applicants committing an illegality in the
course of employment but not actually being employed to
undertake illegal work, which was the case in this instance.
2. The Constitutional
argument
The applicant relied on s.23(1) of the Constitution that
states ‘everyone has the right to fair labour practices’.
The Commissioner rejected submissions that this gave the
CCMA jurisdiction on the basis that all of the elements of a
valid employment contract were not present; the applicant
did not have the legal capacity to enter into an employment
contract and could not accordingly be given the benefit of
constitutional protection.
3. Statutory interpretation
The applicant claimed excluding sex workers from the ambit
of the LRA cannot be justified on either a literal or
purposive reading of the LRA; and hence to do so would
amount to making a policy decision of behalf of the
legislature. The Commissioner disagreed and stated that
given the common law on the validity of illegal contracts
that if the CCMA was to resolve this dispute it would place
itself in a position where it would be making policy
decisions for the legislature.
The Commissioner found that the CCMA did not have jurisdiction to arbitrate the dispute and made no orders as to costs.
It is also worth noting that the CCMA had found it appropriate, given the nature of the application, to protect the identity of the applicant worker.
