A Labor Law perspective on the Protection of Persons in a Vulnerable Employment Relationship in South Africa

Against the backdrop of South Africa’s immense cultural diversity and famously liberal Constitution, the country’s statutes, common law and standing legal practice are continuously being challenged and reshaped. One such instance pertains to the issue of illegal contracts of employment and the legal position of those employed in terms of them. The infamous South African Kylie and Discovery Health court cases have opened the door to much speculation, confusion and debate in this regard, as they haveallowed for the possibility that persons employed under an illegal employment contract may claim labor law protection and recognition. This is largely subject to such persons being labeled ‘vulnerable’ in their employment relationship, with the possibility of their human rights being adversely affected. However, as no formal guidelines have yet been established as to what constitutes ‘vulnerability’, a lacuna has been created in the South African legal system. This article examines how South African labor law has changed over time in respect of vulnerable employment relationships, highlights important precedents set along the way, while brief reference is also made to employment vulnerability in other jurisdictions to enable comparison.It is eventually concluded that the current lacuna may be resolved in three possible ways. Firstly, to enable greater uniformity in decidingdisputes relating to illegal contracts of employment and vulnerable illegal employment relationships, these matters maybe diverted from the country’s Council for Conciliation, Mediation and Arbitration (CCMA) to a to-be-established, separate forum, which can take the form of a tribunal or a specialized court. Secondly, to provide greater legal certainty, the legislature may wish to lay down certain guidelines and rules upon which such specialized tribunal or court should adjudicate these matters. Finally, it is proposed that the statutory definitions of who qualifies as an employee in terms of the country’s Labor Relations and Basic Conditions of Employment acts be expanded or altered.