It is common knowledge that employing a foreigner without a valid work permit is illegal and exposes an employer to fines and possible prosecution. Therefore, many employers upon discovering that they have employed a foreign national without a work permit or who has an expired work permit, usually panic and follow incorrect procedures which create further liability.
The legislation governing this topic is the Immigration Act 13 of 2002 and the newly enacted Employment Services Act 4 of 2014.
Section 38(1) of the Immigration Act 13 of 2002 states that “no person shall employ an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such a person; or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner status”.
Section 49(3) of the same Act states that, “Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act shall be guilty of an offence, and liable on conviction to a fine or to imprisonment not exceeding one year, provided that on such persons 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 3 years without the option of a fine”.
It is important to note from this legislation that the liability rests with the employer, and the onus is on the employer to ensure that all workers who are employed have valid work permits and work within the parameters of that work permit.
The Employment Services Act 4 of 2014, provides in section 8(4) that an employee who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person who is liable in terms of the law.
The Constitution of the Republic of South Africa, Act 5 of 2005, states that everyone has the right to fair labour practices which has been interpreted to extend beyond just South African citizens.
This constitutional right and ESA has been given effect through case law, and it was stated in Discovery Health Limited V Commission For Conciliation Mediation And Arbitration And Others 2008 7 BLLR 633 LC, and confirmed in the recent judgement of Sithole v Metal and Engineering Industries Bargaining council and others unreported case JR318/15 that, ‘the right to fair labour practices is a fundamental right, and there is no clear indication from the Immigration Act or any other statute that it was intended to limit that right. The court reasoned that if section 38(1) were to render a contract of employment concluded by a foreign national who does not have a valid work permit void, it would not be difficult to imagine the inequitable consequences that might flow from a provision to that effect. An unscrupulous employer prepared to risk criminal sanction under section 38, might employ a foreigner and at the end of the payment period, simply refuse to pay the remuneration due, on the basis of the invalidity of the contract. In these circumstances, the employee would be deprived of a remedy in contract, and if Discovery Health’s contention is correct, she would be without a remedy in terms of labour legislation.”
The court, therefore, ruled in Sithole that the contract between an illegal immigrant and the employer is not invalid and even if it were, the illegal immigrant would still be considered an employee in terms of section 213 of the Labour Relations Act 95 of 1997. What this means is that the employee is entitled to the protection afforded by the Labour Relations Act and therefore cannot be unfairly dismissed or subject to unfair labour practices.
What does this mean for employers? Firstly, that foreign nationals need to be treated fairly and in accordance with the law. In terms of dismissal, they need to undergo a fair process such as a hearing and be dismissed for a valid reason. Secondly, they need to be paid at least the minimum wage and work fair hours such as those South African citizens are entitled to. In addition to this, if their work permit expires or they do not have a valid work permit and were employed by a company, the company must assist the employee in every possible way to acquire a work permit and ensure that the employee has sufficient time in which to obtain a work permit. The request to obtain a work permit must be reduced to writing, and normally an employee is given a month in which to obtain a new work permit. If the employee refuses to obtain a work permit and the company can show that they have assisted the employee in every possible way follow a procedure, then through an impartial hearing, the employee can be dismissed.
Protection is afforded to foreign nationals, and it is the employer’s responsibility to ensure compliance with the relevant legislation.
Sarah-Jane Wood
Dispute Resolution Official – Cape Town