Kylie, a sexual consultant, alleged that she had been unfairly terminated from her employment in a Massage Parlour.

Kylie was a sexual consultant who was employed in a Massage Parlour. She alleged that she was unfairly dismissed from her employment and referred her dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for arbitration. Before the arbitration commenced, the Commissioner held that the Commission did not have jurisdiction to arbitrate on an unfair dismissal in a case of this nature. The appellant sought judicial review of this ruling in front of the South African Labour Court.

Overview of the Incident

Since 2016 Kylie was offering sexual activities to clients and they pay for the services/ activities via the Massage Parlour manager called Mr Browns. Kylies’ salary was paid from the Massage Parlour account as it was an operating business. Mr Browns was in charge of the Massage Parlour ensuring that everything runs smoothly and clients’ expectations are met at all times. The Massage Parlour had several sexual consultants who were offering services to clients after the clients had paid for those services from the Parlour. Each sexual consultant had its unique list of activities that it can offer so that the clients can have a variety of options to choose from (that was a collective agreement between Mr Browns and the sexual consultants). Kylie had her list of activities that she offers. On the 7th of March 2022 one of the highly recommended paying clients paid for the services offered by Kylie at a later stage he changed and demanded services that are not listed on the services of Kylie, in one of his demands he claimed to increase the service fee as he was willing to pay more but again Kylie continued to refuse.

The following day the client went to Mr Brown’s office and complained about the bad experience and poor service he experienced with Kylie. Mr Brown the manager of the Massage Parlour contacted Kylie to come to his office and he reminded Kylie of the company’s vision, mission and goals that the company is more on meeting the client’s expectations at all times and for that Kylie was dismissed from not meeting the client’s expectation which Mr Browns view it as poor work performance.

Kylie viewed her dismissal as unfair and took her matter to the CCMA for adjudication of which the CCMA claimed not to have the jurisdiction to arbitrate such kind of dismissal. Kylie knowing the available institutions of dispute resolution in South Africa, went further and took her matter to Labour Court.

ANSWER THE FOLLOWING QUESTIONS:

1. Was Kylie an employee? Critically discuss what constitutes an employee. In your discussion link it with the case study. (20)
2. Let us assume that Kylie was indeed an employee and has been dismissed. Could her dismissal be considered fair or Unfair? As the labour relations student you are expected to advise on the procedure to be followed for dismissal to be fair. (20)
3. Criticise the response from the CCMA. (20)

4. Despite the nature of Kylie’s job, it has been mentioned in the case study that her dismissal was for poor work performance. Critically discuss the poor work performance in a broad spectrum and further link it with Kylies’ case. (20)
5. Ensure that your assignment has an introduction and conclusion. 10×2 (20)

Answers to Above Questions on Kylie

Answer 1: It is important to consider the elements of employment relationship in order to determine whether Kylie was an employee. According to the elements of employment relationship, control and supervision is an important aspect whereby the employer can control and supervise their employees. In the given case study Mr Brown controls the entire operation and he has a level of control with respect to the services provided by Kylie.

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