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Are you an Employee (Part 2)
Well, in part 1 we looked at the factors that indicate that one is indeed an employee and not a contractor. The ILO guidelines set clear guidelines and they are quite straightforward. As discussed in previous article Employers tend to want to avoid responsibilities associated with having employees such as training, following proper termination of employment procedures, taxes and other benefits employees are legally entitled to. Interestingly there is a quite a whole other dimension to as who fits into the bracket an employee. Persons performing an illegal act or illegal work like a gang of bank robbers or assassins for example may fit well into the ILO regulations in as for as being labelled an employee because of the principle “ex turpi causa non oritur actio” (no action arises out of a dishonourable cause) . However because of the illegal work they do they will not be legally recognized as employees. It should be that simple however that’s not the end of the inquiry. What of a person working and providing a lawful service but for some reason has a status that is undesirable and affects his/her legal standing in as far as work is concerned. We shall look at a few common cases and instances where the illegal status of a worker or where the work the worker performs is illegal. Does that person now then meet the criteria of being legally recognized as an employee?
1. Illegal Immigrants
The world has become such a global village and this village is slowly eroding borders between nations as migration has become a way too common feature in our lives. Millions of people migrate from their home countries to others in search of better economic opportunities. Sadly this reality has created an outer rim class of people that migrate, live and work in other countries without the proper documentation. What then is the status of such workers, such employees? Are they recognized as employees? The South African Constitution has been interpreted in case law in a manner that accomodates these workers/employees. Section 23 of The Constitution of South, 1996 provides that everyone has the right to fair labour practices. This was interpreted well in the case Discovery Health vs CCMA 2008 BLLR 633 (LC). In this particular case a foreign person worked for Discovery Health but did not have a valid work visa. He was subsiquently dismissed as a result of his illegal immigrant status. He filed an unfair dismissal case at the CCMA and the CCMA held the following;
Section 23 of the Constitution 1996 was wide enough to include illegal immigrants as the text was designed to include “everyone”. Therefore every one in the bracket of a worker or employee was included in the definitition.
The CCMA thus had jurisdiction to make a ruling on the matter regardless of the illegal status of the person/employee.
Another interesting ruling in the case was that it was the employer and not the employee that had contravened the Immigration act as it is the Employer’s responsibility to make sure he/she doesn’t hire prohibited people.
The Immigration Acts prohibition of illegal foreigners does not void the employment contract of such foreigner.
2. Sex Workers
A wise man once said, “ we need to legalize commercial sex work so we can better protect sex workers from the true criminals such as pimps, traffickers, rapist and violent abusers”. This wise man was truly wise…. But the point I want to drive home is, “are sex workers considered employees and can they be afforded protection under the law?”
The Kylie vs CCMA & Others 2012 SA 383 (LAC) case which is a “beautiful” expression of Labour Law and ILO principles. In the Appelate divsion of the Labour Court of South Africa the appellant in this case was a sex worker who alleged she was unfairly dismissed from her employment at a massage palour. At the CCMA and Labour Court it was held that these forums lacked juristiction and because the work in question here was illegal the contract of employment was thus void and unenforceable respectively. The Labour Court held that a sex worker was not entitled to protection against unfair dismissal in terms of the Labour Relations Act (LRA) as this would be contrary to common law principles incorporated in the Constituion that a court ought not to sanction or encourage illegal activities.
The Labour Court further held that although section 23 of the Constitution of South Africa provides that, “everyone has the right to fair labour practices,” it did not protect a person engaged in illegal employment.
The Labour Appeal court (LAC) then held that Constitutional rights including the right to fair labour practices vests in everyone, even if no formal contract of employment in concluded and even if the work is illegal. The (LAC) further held that the CCMA (Commision for Conciliation Mediation and Arbitration) had jurisdiction to determine such matter as the one at hand.
The LAC also held that a sex worker as the one in this case was to be considered as an employee for purposes of the LRA and the Constitution. The Court noted that sex workers could also be entitled to form and join trade unions although collective agreements between brothels and sex workers which amount to the commission of a crime would not be enforceable.
To make a long story short sex workers are entitled to rights unders The LRA and the Constitution. This is inline with ILO regulations on Employment.
3. Presumption of Employment
These two case are prime exams of how employees enjoy protection under the Constitution and the law. The LRA (section 200A) and BCEA (section 83A) have provisions that create a presumption of employment meaning there is a rebutabble presumption that a person providing a service to another is an employee. The absence of a contract of employment is not fatal in determining whether a person is an employee. As shown by the two cases illegal or unathorized work or wokers still can receive protection from the Constitution and other laws. Section 23 of The Constitution is quite a powerful provision in as as far as protecting employees. Its wording includes the word “everyone” which gives it a very wide scope or the next best thing.
Ebonyi College of Nursing Sciences Matriculates 50 Students.
By Einstein Chukwu, 8th August, 2021.
Ebonyi State College of Nursing Sciences, Uburu, on Saturday, 7th August, 2021, caped and inducted into the college’s academic programme, 50 new students who were outstanding in the Preliminary Text Section (PTS) conducted by the College in line with the recommendations of Nursing and Midwifery Council of Nigeria.
Speaking at the ceremony, Governor David Umahi represented by Secretary to Ebonyi State Government and Coordinating Commissioner, Dr. Kenneth Ugbala advised the students to shun anything inimical to the health profession, stressing that they have to work hard not to allow the light of the noble profession extinguish in their hands.
Dr. Ugbala said with their matriculation the journey to their greatness has just started and charged the students to see their education as a means to make both the parents and society proud.
He said, “On behalf of the father of Ebonyi State, Engr. Chief David Nweze Umahi, I want to congratulate you, Ebonyi State College of Nursing Sciences, Uburu, on your 3rd matriculation ceremony that inducted 50 new students into the college’s academic programme.
“To the newly admitted students, I want you to know that you are a co-partner with God in the will of your progress. I enjoin you to know that the vision to your greatness have just started. Therefore, as you commence your studies, you must shun social vices and other things that can truncate your vision and goals in life. The future lies before you with a great promise, so, you have to know that the society and of course, your parents who laid aside other important projects to enroll you into this great institution are looking up to you, so do not disappoint them”.
He commended the school management and Ministry of Health for their commitment and support to the Umahi-led administration, adding that government would look into their demands such as building more structures to accommodate size and the number of students, repair of the solar light, and additional nurses instructors.
Commissioner for Health, Dr Daniel Umezuruike who doubled as Chairman of the occasion, extolled Governor Umahi’s single-mindedness in taking the institution to a greater heights it is today since inception of office, in his first tenure, 29th May, 2015. Dr Umezuruike, said that the College which started since 1992 in the old Abia State, was one of the projects inherited as fixed assets by Ebonyi State Government in 1996.
The Commissioner admonished the students to focus on their studies and shun all forms of exam malpractice, prostitution and cultism and adhere strictly to Covid-19 Protocol to avoid contracting Delta-Variant. He called on National Association of Resident Doctors to shelve the sword and get back to work, noting that the country is in a challenging moment health wise and does not call for industrial action.
In an address presented by the Acting Provost of the College, Rev. Sr. Ezejimofor Perpetua, said that matriculating students have made an informed choice and applied for admission into the Ebonyi State College of Nursing Sciences and urged them to inculcate the virtue of self-discipline to enable them excel with good academic grades.
She appreciated the Governor for his fatherly role in the College, especially in his recent effort that aided employment of five new academic staff (Nurse Educator) restructuring the Community University Hospital to a functional level, to serve the needs of patients and the health training institutions. She further disclosed that Nursing and Midwifery Departments would be accredited soon by Nursing and Midwifery Council of Nigeria hence the need for the provision of examination hall, demonstration room, science laboratory, employing more nurses and midwife educators, library and ICT hall among others.
The College which commenced its academic activities in 2018 has been inducting 50 students’ yearly and current they have over 150 students admitted into Nursing Education Programme of the institution.
The climax of the occasion was inducting and capping of the newly admitted students, conducted by the Acting Permanent Secretary, Ministry of Health, Dr. Ekoh Joseph, goodwill message read by president, student union government of Ebonyi State College of Nursing Sciences, Uburu, Comr. Smart Obi among other things.
PRO to SSG/Cabinet Office, Abakaliki
Coronavirus also named as COVID-19 is a common type of virus which spreads from human to human. Now this disease spreads all over the world. It is named as COVID-19 as its first case occur in Wuhan, China in December 2019.
The virus infects your body by entering healthy cells. There, the invader makes copies of itself and multiplies throughout your body. The new coronavirus latches its spiky surface proteins to receptors on healthy cells especially those in your lungs.