The rights of illegal workers not to be unfairly dismissed, with emphasis on illegal immigrants and sex workers.
Ntshalintshali, Phindile Ziningi Glenn.
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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.