Illegal foreigners employed in SA

Some employers are mistakenly under the impression that an employee who is not in possession of the relevant and legal documentation to perform work in South Africa will not be protected by South African labour legislation and therefore no claim of unfair labour practice can be made.

What does the law say

In terms of section 38(1) of the Immigration Act, Act 13 of 2002 as amended together with the regulations published under the legislation, employers are prohibited from employing a person who is not lawfully in South Africa with the necessary documentation.

However, the Basic Conditions of Employment Act, Act 75 of 1997 as amended and the Labour Relations Act, Act 66 of 1995 as amended (LRA) still provide these employees with protection against unfair labour practices. This legislation promotes the constitutional right to fair labour practices for all employees and not just South African citizens, as prescribed by section 23 of the Constitution of the Republic of South Africa, 1996.

What is the risk

Employers run the risk of being arrested by the South African Police Service and the Department of Home Affairs’ Immigration Services if they employ foreigners illegally. In such a case, the employer may face imprisonment and/or a fine for each illegal employee employed. The employee may also approach the Commission for Conciliation, Mediation and Arbitration (CCMA) for compensation in the event of unfair labour practices or unfair dismissal.

In the Labour Court case of Discovery Health Limited v CCMA and others (2008) 29 ILJ 1480 (LC), the court essentially concluded that everyone in South Africa has a constitutional right to fair labour practices, which is vested in ‘everyone’ and not just in parties included in a contract of employment. In light of the LRA’s express purpose of promoting economic development, social justice, labour, peace and the democratisation of the workplace, courts must therefore be more vigilant in protecting those employees who are vulnerable to exploitation because they are inherently economically and socially weaker than their employers.

Required documentation

It should be further noted and emphasised that the responsibility rests with the employer to conduct his/her own due diligence before appointing a foreigner in the workplace. As part of the due diligence, the employer must contact the Department of Home Affairs and/or Immigration Services to confirm the validity of the employee’s documentation provided.

Keep in mind that documentation such as a work permit will expire. The employer must then act immediately and remind and notify the employee in writing, as well as provide reasonable assistance in obtaining new documentation. Give the employee time to apply for documentation from the relevant government department, as well as the contact details of an immigration business or service provider who can assist with this.

Incapacity procedure

If the employer has done everything on his/her part to assist the employee, the employer can follow the incapacity procedure as the employee is incapacitated to legally perform his/her duties in South Africa if the employee does not have the necessary legal documentation.

Due to the complexity and sensitivity of the situation, it is always advised that the employer seek expert labour law assistance and advice to ensure that the correct processes are followed and to limit the business and employer’s risk.

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