Labour legislation cannot be circumvented merely because an Employee is a foreign national.

The employment of foreign nationals in South Africa is regulated by the Immigration Act 13 of 2002, as amended. This Act, inter-alia, provides for matters connected with the ability of foreign nationals to work in South Africa. In accordance with the provisions of the Act, Employers are strictly prohibited from employing illegal foreign nationals, foreign nationals whose status does not authorise them to be employed by a particular Employer, and any foreign national on terms, conditions, and in any capacity other than the capacity provided for based on their status.

In addition, the Labour Relations Act 66 of 1995 (LRA) applies regardless of the employee’s legal status. The LRA governs disputes relating to unfair dismissal and unfair labour practices in employment and regulates the resolution of these disputes.

In terms of Section 38(2) of the Immigration Act, 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.

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 on conviction to a fine or to imprisonment not exceeding one year – Provided that such person’s second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding five years without the option of a fine.

There is a misunderstanding amongst Employers that they can circumvent labour regulations when it comes to employing foreign nationals. 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.

Section 213 of the LRA defines an ‘Employee’ as:
(a) Any person, excluding an independent contractor, who works for another person or the state and who receives, or is entitled to receive, any remuneration; and
(b) Any other person who in any manner assists in carrying on or conducting an Employer’.

It is also relevant to consider the provisions of the Constitution of the Republic of South Africa, Act 108 of 1996, which provides in Section 23(1) that everyone has the right to fair labour practices. Therefore, not only citizens of South Africa enjoy this right.

Employers must therefore ensure that any dismissal of a foreign national remains both substantively and procedurally fair. The law places the onus on the Employer to comply with the relevant legislation and holds the Employer liable for the non-compliance thereof.

Article By: Porthri Blauw
Dispute Resolution Official – CEO George