Most employers understand that it is illegal to hire someone who lacks the requisite permission to work in South Africa. The Immigration Act 13 of 2002 (“the IA”) specifically prohibits the employ of illegal foreigners. However, it is entirely possible that an employer may only discover the illegal status of an employee once the employment relationship has already commenced. Alternatively, they may believe that, perhaps, hiring foreign nationals who lack legal status is an easy, inexpensive way to circumvent South Africa’s labour legislation. Employers who hold the latter belief should think again.
Section 38(1) of the IA specifically states that “no person shall employ – (a) an illegal foreigner; (b) a foreigner whose status does not authorise him or her to be employed by such person; or (c) a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.” For example, the individual in question might not have a valid work permit, or the work permit may be close to expiring or may even have already expired. Since the IA prohibits the employment of anyone who does not have the legal permissions to work in the country, it is important to understand that South African labour legislation still protects those who fall within this category.
Section 213 of the Labour Relations Act 66 of 1995 (“the LRA”) defines an “employee” as “(a) 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 (b) any other person who in any manner assists in carrying on or conducting the business of an employer”.
Based on the provisions above, an employer might erroneously conclude that where an individual is prohibited from being employed due to their illegal status, national labour legislation does not apply when it comes to the termination of such workers’ employment contracts (verbal or written). However, this conclusion is incorrect. Despite a person’s legal status, and whether or not an employer is aware that the person working for them is prohibited from doing so, the employer remains bound to follow the requirements as set out in the LRA for lawful termination of any individual.
This means that the employment relationship can only be validly terminated owing to misconduct committed by the individual or reasons relating to operational requirements (ie retrenchment) or incapacity (such as illness, injury or incarceration) [see Chapter VIII of the LRA].
Interestingly, the Labour Court has held that that an employee’s failure to perform their role at the workplace due to legal constraints (such as in the situation where a work permit expires) may constitute incapacity and may thus be grounds for dismissal. See First National Bank, A Division of First Rand Bank Ltd v Commission for Conciliation, Mediation & Arbitration and others [2017] 11 BLLR 1117 (LC).
However, dismissals for any of the above reasons must comply with both the substantive and procedural requirements in the LRA. Should employers fail to adhere to these requirements, individuals can validly approach the CCMA or the courts (depending on the circumstances) to take action against their employers.
Note too that an employer who knowingly employs an individual who is prohibited from employment under section 38(1) of the IA is guilty of an offence under section 49(3) of the IA and, if convicted, will be liable to a fine or imprisonment for, maximum, a year. A second offence can lead to imprisonment for two years, and subsequent convictions can lead to three years of incarceration. Furthermore, per section 38(2) of the IA, unless the employer can prove otherwise, the employer will be deemed to possess knowledge of the employed individual’s status as being prohibited from employment.
It is thus pivotal to vet potential employees before entering into an employment relationship, so as to ensure that the individual is legally eligible for employment. Additionally, it is vital that employers and employees alike, be aware that employed illegal foreigners, while prohibited from such employment, remain covered by the LRA when it comes to termination of employment.
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