Illegal foreigners in your employment

Employers in the agricultural sector are regularly faced with the situation where an employed foreign national is no longer in possession of valid work documentation.  Employers are subsequently required to take the appropriate actions to terminate the contract of employment.  But how does an employer proceed to do this legally?

The law?

Employers are prohibited from employing any illegal foreign nationals in terms of the Immigration Act 13 f 2002.  Where an employer is found guilty of contravening this act, the employer faces imprisonment of no longer than one year, for a first offence, or can be fined.

Employers should ensure that potential employees are in possession of a valid work permit/visa.  Conclude a fixed term contract with such a person, clearly stating that the contract is valid for the duration of the valid work documentation.

In the instance where the foreign national is employed on a permanent contract, or without any contract, the employer must follow a fair procedure before employment can be terminated.  Take note that South African labour legislation protects foreign nationals, even if they are not in possession of a valid work permit/visa.  This means that foreign nationals can also approach the Commission for Conciliation, Mediation and Arbitration (CCMA) and lodge a claim for unfair dismissal if the employer does not follow a fair procedure with a valid reason for termination of employment.

Valid work documentation

The employer must act as soon as he/she becomes aware of the fact that the employee’s work documentation has expired:

• inform the employee that legislation prohibits the employment of illegal foreign nationals and that it is therefore a requirement to continue employment;
• warn the employee that, should he/she fail to produce a valid work permit/visa within a reasonable time, it could possibly lead to the termination of employment.

The employer must provide the employee with the opportunity to obtain the required valid work permit/visa.  This could entail providing the employee with time off in order to obtain the documentation, and even assistance with the application.  If the employee fails to produce the required valid work permit/visa, the employer must follow the proper incapacity procedure to terminate employment and dismiss the employee.

Incapacity procedure

The incapacity procedure entails the following:

1. Issue a notice of an incapacity consultation.  This notice must set out that:

• the issue regarding the employee’s valid work permit/visa will be discussed;
• due to the fact that he/she is not in possession of the required valid documentation, he/she is operationally unable to perform his/her contractual obligation;
• should he/she fail to provide the required valid documentation, it could possibly lead to termination of employment.

2. Consult with the employee and discuss the notice in full.  Provide the employee with the opportunity to respond to the allegations of not being in possession of the required valid documentation.  Discuss any possible assistance that can be offered to the employee.  Warn the employee that, if the valid documentation is not provided, it could lead to termination of employment.

3. Should the employee fail to provide the required valid documentation, issue the employee with a notice to attend an incapacity hearing. During the hearing, provide all the relevant facts/documents/evidence to the chairperson.  The employee will also be given the opportunity to state his/her case before the chairperson.  The chairperson may make a recommendation of dismissal.

UIF

Employers must also ensure that foreign employees are registered with the Unemployment Insurance Fund (UIF).  The only exception in respect of foreign employees where the employer does not have to register the employee for UIF, is when the employee is appointed on a fixed term employment contract and the employee will return to his/her country of origin after the contract expires.

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