Employing a foreign national
Published in Labour Law · 5 July 2022
Since the inception of democracy in South Africa, there has been an increase in the number of foreigners entering the country looking for better career prospects, better opportunities or fleeing persecution in their home countries. Many foreign nationals have travelled to the country and attained the necessary documentation to live in the country legitimately. On the other hand, some foreign nationals have entered the country illegally and many foreign nationals have remained in the country illegally after the expiration of their work permits.
Most immigrants try to find jobs in South Africa, and this has indeed added to the diversity in South Africa’s labour-force.
As a business owner, you may be approached by foreigners for employment within your establishment. Cognizance must always be given to whether such a person is authorized to be in the country which can be verified by a valid work permit. Section 38 of the Immigration Act specifically prohibits the employment of foreigners who are not authorized to be in the country or are not permitted to work. Breach of this may result in a fine being imposed upon a business.
Another crucial factor for business owners to be aware of is that the Commission for Conciliation Mediation and Arbitration (CCMA) does not turn away cases referred by foreigners, irrespective of their status in the country. Just dismissing an employee because they are a foreigner to rid oneself of the problem may have adverse consequences.
You may be faced with situations where an employee’s work permit has expired, is about to expire or the individual was employed without a work permit at all. With the Department of Home Affairs in conjunction with the Department of Labour stepping up their enforcement measures, it is imperative to know how to deal with these situations.
Foreigners who produce valid work permits are often employed on a permanent basis – what happens to the status of the employment when the work permit expires? A critical aspect that employers need to be aware of when employing a foreigner on a work permit is that the Labour Relations Act makes provision for justifiable reasons to employ someone on a fixed term contract. The employment of a non-citizen who has been granted a temporary work permit is generally accepted as a valid reason to employ someone on a fixed term contract in terms of the Act.
If implemented correctly, the above would result in termination of the employment relationship once the work permit expires. Where the employee was not originally placed on a fixed term contract but employed on an indefinite basis, the issue becomes more complicated. Such persons may not be unilaterally terminated according to CCMA and Labour Court case law. There is no straightforward answer to this. Employers will have to engage with such employees and assist such employees to obtain extensions to their work permits prior to any action being taken.
The law places the onus on the employer to comply with the relevant legislation and holds the employer accountable for non-compliance. It is therefore necessary for business owners to ascertain the status or citizenship of a potential employee as well as what type of work the candidate is permitted to carry out on their work visa. In general, it is of vital importance that employers are aware of the laws and rights governing and regulating the issues of foreigners in the workplace.
This article does not constitute legal advice and is based on the author’s interpretation of legislation and case law. Book a consult for legal advice or assistance pertaining to your specific matter.