Employing an illegal immigrant or an employee without a work permit has serious consequences for employers. There is a perception that illegal immigrants or employees without work permits do not enjoy any benefits of protections in terms of the labour relations laws in South African. This is a misguided perception, and employers should not be caught out.
The Immigration Act 13 of 2002 (“the Immigration Act”) provides for the admission of foreigners and their departure from South Africa, including foreigners’ ability to work in South Africa. The Immigration Act is read together with The Employment Services Act 4 of 2014 (“ESA”), which regulates the employment of foreigners. One of the main aims of ESA is to facilitate the employment of foreign nationals in a manner that is consistent with the objectives of the Immigration Act, which gives the Labour Court the powers to deal with issues regarding foreigners and the sanctions for non-compliance thereof.
Section 38 of the Immigration Act provides that no person shall employ an illegal foreigner, a foreigner whose status does not authorise him or her to be employed by such person or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.
Section 38(2) of the Immigration Act states that a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs. Further, section 49(3) of the Immigration Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence.
The Labour Relations Act (“the LRA”) is applicable regardless of the legal status of the employee. There is a view amongst some employers that they can transgress the labour regulations when it comes to employing foreigners. It is important to note that foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the LRA and enjoy the same rights, benefits and recourse as a South African employee.
Section 213 of the LRA defines an ’employee’ as follows:
- any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
- any other person who in any manner assists in carrying on or conducting the business of an employer.
The Constitution of the Republic of South Africa (“the Constitution”) provides that everyone has the right to fair labour practices, this right is not guaranteed for citizens only.
Importantly to note, the laws of South Africa do not declare the contract between the employer and the employee without a valid permit void but rather prohibits the act of employing a foreign national without valid documentation. In this instance, the liability falls on the employer, and the law does not penalise the action of the foreign person who accepts work without valid authorisation. It is the illegal employment of a foreigner that our law prohibits.
A foreign national whose work permit expires whilst employed or who at the time is employed without valid documents is still an employee in terms of the LRA. This means that the employee would have recourse to compensation in the case of an unfair dismissal through the CCMA. Such employees would not be entitled to reinstatement because such an order would be in contravention of the Immigration Act.
The above provisions were confirmed in the matter of Discovery Health Limited v CCMA & Others  7 BLLR 633 (LC), where the employee was dismissed after the expiry of his work permit. The employee referred an unfair dismissal dispute to the CCMA, where the question of the CCMA’s jurisdiction to hear the case was considered. The CCMA ruled that it did have jurisdiction to determine whether the employee had been unfairly dismissed and found further that the employee’s dismissal had been unfair. The Labour Court confirmed the above ruling on review.
It is important for employers to ensure that a foreign employee has a valid work permit before offering a contract of employment. Further, the employer must act fairly towards foreign employees because they enjoy the same rights contemplated in the LRA. This means hiring a foreign national does not excuse an employer from complying with the LRA when their permits have expired.
Article by: Tshepang Makhetha
Dispute Resolution Official – Pretoria