Question for today: Who has the Protection of our Labour Legislation?
There is a heated debate about who is an employee. There are guidelines, both in the Basic Conditions of Employment Act and the Labour Relations Act for determining whether persons are employees or not. The employment relationship is a complex and sometimes convoluted relationship which both employers and employees try to disguise. There was often a call by employees to structure their relationship as independent contractors so they could obtain the income tax benefit. This benefit would be accrued to the employee because the employee in turn would use his or her expenses as deductions. This structure has been effectively closed by the Receiver of Revenue as being illegal and certainly not acceptable in the majority of cases. The employers, on the other hand, want to structure a relationship outside the traditional employment relationships so that they can avoid some of the onerous conditions contained in our labour legislation. It is notorious that these conditions create all sorts of difficulties, not the least being the difficulty of dismissing an employee. If the relationship was outside the ambit of an employment relationship then the so-called independent contractor (employee) would have no protection whatsoever. It is therefore very difficult for the parties to try and establish a working relationship outside the norms of employment.
All those entering into working relationships, are persons that are dependent on each other. These persons often require the protection of the Employment Law and in particular, the Labour Legislation. The criteria of the “dominant impression test” is used to determine whether a particular person working for another, is an employee or not. If the outsider gains the dominant impression of an employment relationship, then it could well be said that that relationship is in fact one of employment. Our Labour Legislation including the Labour Relations Act and the Basic Conditions of Employment Act outlines criteria to determine who is an employee or not. The Employment Equity Act refers to a person who, in any manner, assists in carrying on or conducting the business of an employer. This is a wide definition and goes one step further than other legislation. Even if a person who does not have a valid contract of employment, may nevertheless satisfy the statutory requirements and in fact, qualify to be an employee.
An interesting example has recently been heard in our Courts, where a prostitute working in a brothel brought her allegation of unfair dismissal to the Commission for Conciliation Mediation and Arbitration. The prostitute alleged that she was unfairly dismissed and had lodged a claim for damages for this unfair dismissal. The CCMA ruled that the dismissal could not have been unfair because the employment relationship did not exist in the first place. The CCMA Commissioner stated that the relationship was illegal in its nature and therefore could not be subject to a valid contract of employment. However, it is submitted that in fact the legislation states otherwise and if the prostitute did qualify in terms of the definition, then that prostitute could qualify as an employee.
We notice on a daily basis how many foreign nationals are “employed” in various businesses, especially the building trade, and when it is necessary to either dismiss for operational requirements or terminate the employment relationship, the employer hides behind the fact that they did not have valid work permits. This practice has led to an entire sub-industry of illegal employment and has created enormous exploitation in the market. Even the illegal foreign national and the prostitute need some protection. One only has to go to our Constitution to see that the exploitation is illegal in many circumstances. The International Labour Organisation certainly would not support the blatant exploitation in circumstances such as this. Even though it is ruled in common law that any contract would be unenforceable if it was unlawful, it must be seen in the context of the employment relationship and the hardships evolving therefrom.
Obviously, working in a brothel is illegal and the very nature of prostitution is outlawed. However, it must be understood that even prostitution constitutes an employment relationship and the exploitation of a prostitution relationship, should at least be able to find the comfort of protection in our Labour Legislation. Our Courts have always said that the Adjudicating Officers must promote the spirit, purport and objects of the Bill of Rights. We live in a modern democracy and all workers should at least have the protection of our Basic Conditions of Employment Act and Labour Relations Act.