From the point of departure, it is essential to acknowledge that the CCMA is a creature of statute, and jurisdiction will be limited to the powers given to the presiding Commissioner by the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), or the Employment Equity Act (EEA). The CCMA cannot grant or deprive themselves of the jurisdiction that was initially afforded. Since the jurisdiction of the CCMA is limited, the CCMA are regularly confronted with questions of whether some issues fall within their jurisdiction.

When confronted by circumstances where an employee’s work is illegal, or the worker is illegally in South Africa, and legislation prohibits the work or the employee from being employed by a company, the presiding Commissioner must determine if they can proceed with the matter. It will then be the difficult task of the Commissioner to determine if the contract of employment is valid and enforceable. If there is no valid employment contract, the Commissioner will need to determine if there is an employment relationship between the employer and the employee. The Commissioner must also consider the relief granted should the dismissal be procedurally unfair.

In Kylie v CCMA and Others (2010) 31 ILJ 1600 (LAC), the Court had to determine if a sex worker, whose employment was unlawful, was entitled to refer an unfair dismissal dispute and if the CCMA would have the necessary jurisdiction to adjudicate the dispute. Since the nature of the work is prohibited by legislation, it would be automatic that any employment contract between the employer and the employee would not be valid nor enforceable. Acting Judge Cheadle concluded that the essential question was whether ‘as a matter of public policy, courts and tribunals by their actions ought to sanction or encourage illegal conduct in the context of statutory and constitutional rights’.

To assess the question before the Court, the Court considered Section 23(1) of the Constitution of South Africa, which provides that ‘everyone has the right to fair labour practices’. The Court was also conflicted with the fact that the contract between the employer and the employee was unlawful in terms of the statutory requirements, as the business itself was unlawful. After the assessment of the Constitution, the Court considered Section 1(a) of the Labour Relations Act, which states that the purpose of the Act is to give effect to Section 23 of the Constitution. The Court also considers that even though the contract between the employer and the employee was unlawful, there was still an employment relationship between the parties.

In Discovery Health Limited v CCMA and Others [2008] 7 BLLR 633 (LC), the question before the Court was raised whether a foreign national who works for another person without a permit issued under the Immigration Act 13 of 2002 would be considered an “employee” as per the LRA. The Court came to the same conclusion as in the Kylie case that despite the validity of the contract of employment, in terms of the definition of Section 213 of the Labour Relations Act, the Applicant was considered an employee and entitled to refer a matter to the CCMA for unfair dismissal.

In The Universal Church of the Kingdom of God v CCMA and Others (2015) 36 ILJ 2832 (LAC), the Court had to take into consideration the effect of a contract of employment in the case where the employee’s work was not illegal, but the contract was questioned. The Court had to interpret Section 200A of the Labour Relations Act, which stipulates that until the contrary is proven, a person who works for or renders services to any other person, regardless of the form of contract, to be an employee if any or more of the following factors are present:

  • The manner in which the person works or their hours of work is/are subject to the direction or control of another person;
  • The person forms part of the organisation;
  • The person has worked for the other person for an average of at least 40 hours per month for at least three months;
  • The person is economically dependent on the other person;
  • The person is provided with tools of the trade by the other person;
  • The person only provides services to one person.

In conclusion, various factors should be considered when determining the jurisdiction of the CCMA. When an employee is an illegal immigrant and employed by a company, the contract of employment might not be valid. Still, an employee-employer relationship might exist, which may afford an employee the right to refer a labour dispute to the CCMA.

Christie de Villiers | Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)