In our February 14th post “Inmate Clerk Settles Sexual Harassment Case – She Is An Employee” we discussed a decision by the Iowa Supreme Court which held that an inmate clerk is an “employee” for Ttle VII purposes.   This seems to be a significant decision in the area of employment and prisoner rights.

Johann Scheepers, a commissioner at the Commission for Conciliation, Mediation and Arbitration in Johannesburg, South Africa tells us that the South African Labour Courts and Labour Tribunals – The Commission for Conciliation, Mediation & Arbitration (“CCMA”) have often “struggled,” or rather been called upon to determine the factual question of whether a claimant is an “employee” as defined in the South African legislation.

It is surely interesting to see how other nations define “employee,” and treat those who do not fit within what we might consider as an “employee.”

Johann comments as follows:

“Section 23(1) of the South African Constitution – Bill of Rights (1996) states that:  “Everyone has the right to fair labour practices.”  Section 10 protects “Human dignity” and section 13 prohibits “Slavery, servitude and forced labour.”

In Discovery Health Limited v CCMA & others [2008] 7 BLLR 633 (LC), the Labour Court had to determine the correctness of a decision by an Arbitrator as to whether the dismissal of an employee [employed in terms of having an employment contract] was unfair, based on the argument by the employer that the employee did not have a valid work permit which rendered the contract of employment void as being in conflict with the Immigration Act.

The Labour Court rejected the employer’s argument that the fact that the employee could not lawfully work in South Africa under the terms of the Immigration Act rendered the contract of employment void ab initio.  In terms of South African labour legislation, the definition of an “employee” did not contemplate an underlying valid contract of employment.

The assumption that the contract was invalid because of the absence of a valid work permit, as required by the Immigration Act, and therefore that the employee could not enjoy protection i/t/o labour legislation, could not be sustained.   The SA Constitution stipulates that “Everyone has the right to fair labour practices”  [Including “illegal aliens” and in all probability “inmates” for that matter, who render a service to a correctional facility and is remunerated for it].

The Labour Court held, at 49:

“Taking into account the provisions of section 23(1) of the Constitution, the purpose, nature and extent of relevant international standards and the more recent interpretations of the definition of ‘employee’ by this Court, I do not consider that the definition of ‘employee’ in section 213 of the LRA is necessarily rooted in a contract of employment. It follows that a person who renders work on a basis other than that recognised as employment by the common law may be an ‘employee’ for the purposes of the definition.

Because a contract of employment is not the sole ticket for admission into the golden circle reserved for ‘employees,’ the fact that Lanzetta’s [the applicant] contract was contractually invalid only because Discovery Health had employed him in breach of section 38(1) of the Immigration Act did not automatically disqualify him from that status.”