The rights of illegal workers not to be unfairly dismissed, with emphasis on illegal immigrants and sex workers.
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Date
2019
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Abstract
Illegal workers have been and continue to be the most vulnerable category of employees in
the labour market, the reason for this is the invalidity of their employment contract due to
illegality. For the longest time, the Labour Relations Act (hereinafter the LRA) has not been
able to afford these workers protection because they did not fall within the ambit of the
legal definition of ‘employee’ and the Act only recognises employees as holders of the rights
provided for under the LRA. As a result of the Act not being able to protect these workers,
they have become victims of exploitation and vicious abuse in the hands of their employers,
making them vulnerable in their employment relationship. The law concerning illegal
workers has since changed. Courts have found that these workers are in fact employees for
the purposes of the LRA, and that, for an employment relationship to exist there need not
be a valid employment contract in existence. An employment relationship may take various
forms and the goal that the Labour Relations Act seeks to achieve is to protect those
employees who find themselves vulnerable as a result of the illegality of their employment
contract. It has also been argued that the law aims mostly at penalising the employer rather
than the employee who is economically and socially weaker than the employer, therefore,
courts have found that the Labour Relations Act should be interpreted in a manner that is
consistent with the Constitution of the Republic of South Africa (hereinafter the
Constitution) which requires a wider interpretation of who may be afforded the right to fair
labour practices.
Description
Master of Law in Business Law, University of KwaZulu-Natal, Pietermaritzburg, 2019.