Woman sacked for disobeying brothel owner has no protection from labour law, says judge.
A sex worker who was sacked for refusing to give clients blow jobs has lost her labour court claim for compensation for 12 months’ pay and will now attempt to pursue her claim in the Constitutional Court.
In a groundbreaking legal challenge on the rights of sex workers ”Kylie” took her brothel-owner employer to court for unfair dismissal two years ago.
Kylie had been sacked from a Bellville brothel after refusing to give blow jobs or have sex for half price when the owner asked her to.
In his judgement Labour Court Judge Halton Cheadle said: ”There’s a fundamental principle in our law that courts ought not to sanction or encourage illegal activity.”
He said that to rule in her favour the provisions of the Labour Relations Act would have to be amended. ”The scope of the labour rights does not include sex workers and brothel keepers as bearers of those rights.
”Subject to the Constitution, the application of the enforceability of statutory claims renders a sex worker’s claim to fair dismissal under the Labour Relations Act unenforceable,” Cheadle ruled.
Kylie said she will take her case to the Constitutional Court. ”I may be a sex worker, but us girls need the law to protect us as well.”
Kylie had worked and lived at Brigitte’s Massage Parlour in Bellville. The brothel owner fired her, claiming that she didn’t work enough, refused to work at weekends, spent time in her room with her boyfriend, who didn’t pay, and refused to do blow jobs. Kylie laughed when she told the Mail & Guardian that she doesn’t give oral sex ”because it’s matter of taste”.
After being dismissed Kylie approached the Sex Worker Education and Advocacy Taskforce (Sweat) for help. Sweat, a non-profit organisation that advocates the decriminalisation of the sex industry, took her case to the Council for Conciliation, Mediation and Arbitration (CCMA).
But the CCMA said it could not rule on Kylie’s case because sex work is illegal.
She then turned to the Labour Court, where heavyweight advocate Wim Trengove argued that the Constitution protects ”everyone working for and receiving compensation from another person” against unfair dismissal and unfair labour practices, and that the Labour Relations Act should be interpreted in the spirit of the Constitution.
The Act makes no mention of the nature of the work or whether people have a legal employment contract, Trengove said.
Kylie said: ”I didn’t know what the CCMA was — I’m a bit shy of being the first person to challenge sex workers’ rights in court. My intention was not to get prostitution legalised. It was simply to get the courts to recognise that we have rights. We are treated wrongly and badly and we have no rights as things are.
”I will gladly pay tax if that means I have the same protection by law as the next person.”
She has been a dancer and sex worker for 22 years, since she was 18. ”Every time you have sex during the first year in this job, you feel as though you’ve been raped. But after that year, I chose this job and some days couldn’t wait to get to work because it made me feel good about myself.
”We girls are usually in bad personal relationships and then this job becomes a way of getting recognition and admiration,” Kylie said. ”My clients tell me I’m looking fantastic, they tell me I’m pretty, they like talking to me and even if it’s all a lie, it’s a good lie.”
”I didn’t choose this job — I answered an ad for a call girl thinking I [would] have to answer telephones. The brothel owner convinced me to try the job and I was so scared of having to sleep under a bridge that I ended up staying, promising myself ‘I will get out’. I didn’t and now I’m 40 and I have to say that this was my chosen profession.”
Kylie left the industry after being sacked and has survived for the past two years with the help of former clients and friends.
”I’m now financially so desperate that I’ve given myself until the end of the month and then I will go back into the industry,” Kylie said.
”If you do 10 clients a day — some days 16 or 18 clients — you can earn very good cash money.”
Brothel-based sex workers charge between R100 and R150 for full sex, R70 for a handjob and R140 per girl for two-girl sex.