A sacked Cape Town sex worker had three Labour Appeal Court judges on Thursday grappling with whether she was entitled to challenge her dismissal.
“When dismissed you are made to stop with something criminal … but then you say ‘please protect me from someone who is stopping me
from doing something criminal’ — it doesn’t makes sense to me,” an exasperated Judge President Raymond Zondo asked Wim Trengove, who was representing “Kylie” in the landmark case.
“We are not fighting for the right to practise sex work, but the right to protection from unfair dismissal,” argued Trengove.
Kylie, who was not present in court, and had since left the profession, worked in Brigitte’s Massage Parlour in Cape Town from 1993 but was fired in April 2003.
She was dismissed for apparently failing to do enough bookings, not managing her time, and for choosing her clients. She also spent time in her room with her boyfriend, who did not pay for her services.
The Commission for Conciliation, Mediation and Arbitration (CCMA) refused to hear her case, saying the work was illegal so she was not entitled to any recourse.
Everyone entitled to ‘get through the door’
She took the matter to the Labour Court, with the help of the Sex Worker Education and Advocacy Task Force (Sweat) and the Women’s Legal Centre (WLC).
The Labour Court also would not enforce her rights because sex work is illegal. She tried to have the case heard in the Constitutional Court, but was directed to the Labour Appeal Court in Johannesburg.
Trengove argued that at its most extreme, from an assassin to a hawker’s assistant selling fruit in contravention of city bylaws, everyone was entitled to at least “get through the door” at the CCMA.
The judges — which included Dennis Davis and Achmat Jappie — would have to decide whether, in terms of S213 of the Labour Relations Act, the word “works” would include somebody who works illegally, or whether it was only for people who do work that was not against the law.
They also had to decide whether Section 23 of the Constitution, which guarantees the right to fair labour practices to everyone, included people doing something illegal in the use of the word “everyone”.
Trengove said there were a broad range of circumstances for challenging a dismissal and the proper response was “one that recognises the dignity of every individual and gives them the right to put their case”.
Speaking on the sidelines of the hearing, Sweat advocacy coordinator Vivienne Lalu said: “Kylie has been very tenacious. It’s about other women in the industry too. She is simply fighting for the rights of sex workers to be heard at the CCMA.” – Sapa