South Africa has a number of legal and illegal immigrants working in all sectors across the economy. What rights do these workers enjoy, if any?

 

Quite often, these workers could be paid low wages, deprived of employee benefits and dismissed without reason or procedure, as an employer could be under the impression that the Labour Relations Act does not apply to them and that these workers have no recourse.

 

In the matter of Discovery Health Ltd v CCMA & Others (2008) 29 ILJ 1480, the applicant obtained a temporary residence permit and a permit to work in South Africa. Subsequently, he was employed by Discovery Health before his work permit was renewed. His work permit expired, and he claimed that Discovery failed to provide him with the documents he required to renew his work permit. Discovery terminated employment on the grounds that continued employment would have breached 38(1) of the Immigration Act, which states 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, terms and conditions or in a capacity different from those contemplated in such foreigner’s status

 

The dispute was referred to the CCMA where Discovery raised a jurisdictional point that the contract of employment was null and void due to applicant’s illegal status and that he was therefore not an employee in terms of the Labour Relations Act. The CCMA held that if an employment relationship existed, it did have jurisdiction to entertain the matter. The ruling was taken to the Labour Court, which confirmed that the applicant was an employee as defined in the Labour Relations Act.

 

In August Lapple (SA) v Jarret & Others (2003 12 BLLR 1194) the dismissed employee worked for the South African subsidiary of a German Company. The matter was referred to the Bargaining Council for the Motor Industry in South, where again the employer disputed jurisdiction and claimed that it was the company’s head office in Germany that dismissed the employee. The arbitrator ruled that the council did have jurisdiction. This ruling was also taken to the Labour Court, which found that although the employee had been employed by the German parent company, he was also employed by the South African subsidiary. The bargaining council, therefore, had jurisdiction to entertain the matter.

 

Once deemed to be an employee, a person would enjoy full protection under the Labour Relations Act, and the CCMA and Bargaining Councils have the relevant jurisdiction to entertain such disputes.

 

Article by: Ruaan Heunis

Dispute Resolution Official – East London