Are you an Employee (Part 2)
Well, in part 1 we looked at the factors that indicate that one is indeed an employee and not a contractor. The ILO guidelines set clear guidelines and they are quite straightforward. As discussed in previous article Employers tend to want to avoid responsibilities associated with having employees such as training, following proper termination of employment procedures, taxes and other benefits employees are legally entitled to. Interestingly there is a quite a whole other dimension to as who fits into the bracket an employee. Persons performing an illegal act or illegal work like a gang of bank robbers or assassins for example may fit well into the ILO regulations in as for as being labelled an employee because of the principle “ex turpi causa non oritur actio” (no action arises out of a dishonourable cause) . However because of the illegal work they do they will not be legally recognized as employees. It should be that simple however that’s not the end of the inquiry. What of a person working and providing a lawful service but for some reason has a status that is undesirable and affects his/her legal standing in as far as work is concerned. We shall look at a few common cases and instances where the illegal status of a worker or where the work the worker performs is illegal. Does that person now then meet the criteria of being legally recognized as an employee?
1. Illegal Immigrants
The world has become such a global village and this village is slowly eroding borders between nations as migration has become a way too common feature in our lives. Millions of people migrate from their home countries to others in search of better economic opportunities. Sadly this reality has created an outer rim class of people that migrate, live and work in other countries without the proper documentation. What then is the status of such workers, such employees? Are they recognized as employees? The South African Constitution has been interpreted in case law in a manner that accomodates these workers/employees. Section 23 of The Constitution of South, 1996 provides that everyone has the right to fair labour practices. This was interpreted well in the case Discovery Health vs CCMA 2008 BLLR 633 (LC). In this particular case a foreign person worked for Discovery Health but did not have a valid work visa. He was subsiquently dismissed as a result of his illegal immigrant status. He filed an unfair dismissal case at the CCMA and the CCMA held the following;
Section 23 of the Constitution 1996 was wide enough to include illegal immigrants as the text was designed to include “everyone”. Therefore every one in the bracket of a worker or employee was included in the definitition.
The CCMA thus had jurisdiction to make a ruling on the matter regardless of the illegal status of the person/employee.
Another interesting ruling in the case was that it was the employer and not the employee that had contravened the Immigration act as it is the Employer’s responsibility to make sure he/she doesn’t hire prohibited people.
The Immigration Acts prohibition of illegal foreigners does not void the employment contract of such foreigner.
2. Sex Workers
A wise man once said, “ we need to legalize commercial sex work so we can better protect sex workers from the true criminals such as pimps, traffickers, rapist and violent abusers”. This wise man was truly wise…. But the point I want to drive home is, “are sex workers considered employees and can they be afforded protection under the law?”
The Kylie vs CCMA & Others 2012 SA 383 (LAC) case which is a “beautiful” expression of Labour Law and ILO principles. In the Appelate divsion of the Labour Court of South Africa the appellant in this case was a sex worker who alleged she was unfairly dismissed from her employment at a massage palour. At the CCMA and Labour Court it was held that these forums lacked juristiction and because the work in question here was illegal the contract of employment was thus void and unenforceable respectively. The Labour Court held that a sex worker was not entitled to protection against unfair dismissal in terms of the Labour Relations Act (LRA) as this would be contrary to common law principles incorporated in the Constituion that a court ought not to sanction or encourage illegal activities.
The Labour Court further held that although section 23 of the Constitution of South Africa provides that, “everyone has the right to fair labour practices,” it did not protect a person engaged in illegal employment.
The Labour Appeal court (LAC) then held that Constitutional rights including the right to fair labour practices vests in everyone, even if no formal contract of employment in concluded and even if the work is illegal. The (LAC) further held that the CCMA (Commision for Conciliation Mediation and Arbitration) had jurisdiction to determine such matter as the one at hand.
The LAC also held that a sex worker as the one in this case was to be considered as an employee for purposes of the LRA and the Constitution. The Court noted that sex workers could also be entitled to form and join trade unions although collective agreements between brothels and sex workers which amount to the commission of a crime would not be enforceable.
To make a long story short sex workers are entitled to rights unders The LRA and the Constitution. This is inline with ILO regulations on Employment.
3. Presumption of Employment
These two case are prime exams of how employees enjoy protection under the Constitution and the law. The LRA (section 200A) and BCEA (section 83A) have provisions that create a presumption of employment meaning there is a rebutabble presumption that a person providing a service to another is an employee. The absence of a contract of employment is not fatal in determining whether a person is an employee. As shown by the two cases illegal or unathorized work or wokers still can receive protection from the Constitution and other laws. Section 23 of The Constitution is quite a powerful provision in as as far as protecting employees. Its wording includes the word “everyone” which gives it a very wide scope or the next best thing.