Sonja Vorster

The employment of foreigners has become common practice. Many misguided employers are of the view that these workers are cheap labour and not protected under the labour law.

Foreign workers, INCLUDING the ones without a valid working visa are protected from unfair labour practices and dismissal under the Labour Relations. Section 213 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.
The Constitution of the SA, Section 23(1) provides that “everyone has the right to fair labour practices and not only citizens.”

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The onus lies squarely on the shoulders of the employer to verify as per the:
• Immigration Act 13 of 2002.
• The supplemented Immigration Regulations.
• Employment Services Act 4 of 2014, which came into effect in August 2015.

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The Immigration Act, Section 38, provides that no person shall employ, an illegal foreigner, a foreigner whose status does not authorise him/her to be employed by such person; or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.

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The duty is placed on an employer to ensure that no illegal foreigner is employed, and to ascertain the status or citizenship of the persons it employs. It states that anyone who knowingly employs an illegal foreigner or a foreigner in violation of Act shall be guilty of an offence.

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Prior to the employment of any foreign person, employers should take proper advice. Ignorance of the law is no excuse. The law places the onus on the employer to comply with legislation and holds the employer liable.

The law does not declare the contract of employment ‘void’ nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of ’employing’ a foreign national in violation of the law. All of the liability is therefore placed squarely on the shoulders of the employer as it is the illegal employment of a foreigner that is prohibited.

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A foreign national whose work permit expires whilst employed, or who is employed without a work permit is still an ’employee’ for the purposes of the LRA. In the event of an unfair dismissal or treatment it means that the employee would have recourse to compensation through the CCMA, not reinstatement if the employee is illegally in South Africa.

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