Sex worker turns to Labour Court

2008-02-04 22:23

Johannesburg - A Cape Town sex worker who says she was unfairly dismissed is seeking the Labour Court's help this week, the Women's Legal Centre said on Monday.

"The Labour Court will hear a review on the application of the Labour Relations Act brought by a Cape Town sex worker," said the WLC.

This move comes after the Commission for Conciliation, Mediation and Arbitration (CCMA) dismissed her case, saying it did not have jurisdiction because she had been employed to do illegal work.

WLC director and the sex worker's attorney, Jennifer Williams, said the application was not about legalising prostitution but ensuring everyone in society was protected by law.

Particularly vulnerable

"Sex workers are particularly vulnerable to exploitation in the employment relationship, both because sex work is outlawed and because of the nature of their work," said Williams.

The Sex Workers' Advocacy and Training organisation (SWEAT) approached the WLC to represent the sex worker, who is referred to by the pseudonym "Kylie" in court papers, in an application to have the Labour Court review the CCMA decision.

The WLC said the Labour Relations Act (LRA) protected all "employees" against unfair dismissal.

An "employee" is defined as anybody "who works for another person" for remuneration.

"In other words the LRA protects anybody who is in fact in an employment relationship with someone else whether their relationship is underpinned by the enforceable contract or not," said Williams.

Right to dignity undermined

Kylie is alleging that her rights under the LRA and constitutional rights for fair labour practices and a right to dignity have been undermined.

Williams said if the CCMA's interpretation of an employment relationship was upheld, it would exclude a number of employees who deserved legal protection.

"It would exclude all employees who are in an employment relationship but whose contracts of employment are unenforceable for one reason or another.

Williams said vulnerable workers, especially women, who often faced uncertain employment conditions needed to know their work situations were legally acknowledged.

The Labour Court has previously accepted employment relationships that were set up without contracts.

Williams said the LRA legally took preference over any other law expect the Constitution.

Therefore a sex worker could still be protected under it, without her work being legalised. [The Sexual Offences Act still criminalises sex work].

Wasn't informed of allegations

Kylie was employed by Brigitte's Massage Parlour in Cape Town as a sex worker from 1993 until she was dismissed on April 30 2003.

The WLC said Kylie considered the dismissal "procedurally and substantively unfair".

She says she was not informed of the allegations that could lead to dismissal and was given no opportunity to state her case as no enquiry was held.

Kylie apparently received a letter on April 23 2006 terminating her employment and telling her to vacate the premises within a week.

Apparently the reasons alleged for her dismissal were that she failed to do sufficient bookings, did not manage her time and chose specific clients and conduct.

She allegedly also spent an hour in her room with her boyfriend who did not pay for the service.

Oral sex

The employer apparently also told Kylie she was still using drugs and refused to perform oral sex.

"Kylie believes that she was not charged with anything or ever found guilty of anything and she never had an opportunity to prove that she was not guilty of the misconduct."

The WLC said that Kylie felt even if there was some misconduct, the remedy for it was not dismissal.

The matter will be heard in the Labour Court in Cape Town on Thursday.

- SAPA