Employing foreigners in South Africa
The employment of foreigners in South Africa is regulated by the Immigration Act 13 of 2002, as amended (“the Immigration Act”). The Immigration Act provides for the ability of foreigners to work in South Africa. The Immigration Act is supplemented by the Immigration Regulations which underwent significant changes in May 2014, specifically in relation to work visas.
The Employment Services Act 4 of 2014 (“ESA”), which came into effect in August 2015, further regulates the employment of foreigners. One of the specific aims of ESA is to facilitate the employment of foreign nationals. The ESA accords jurisdiction to the Labour Court to deal with issues relating to the employment of foreigners and also confirms the sanctions for non-compliance as set out in the Immigration Act.
In addition the Labour Relations Act 66 of 1995, as amended (“the LRA”) is applicable regardless of the legal status of the employee. The LRA governs disputes relating to unfair dismissal and unfair practices in employment and regulates the resolution of these disputes.
The Immigration Act and Regulations
Section 38 of the Immigration Act provides that no person shall employ:
an illegal foreigner;
a foreigner whose status does not authorise him or 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.
In terms of section 38(2) of the Immigration Act, a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs.
Furthermore, section 49(3) of the Immigration Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence.
The Labour Relations Act
It is important to note that foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the Labour Relations Act 66 of 1995, as amended (“the LRA”).
The law does not declare that a contract of employment concluded without the required permit is 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 attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. It is the illegal employment of a foreigner that is prohibited.
Therefore a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit is still an ‘employee’ for the purposes of the LRA. This means that the employee would have recourse to compensation in the case of an unfair dismissal, through the CCMA. Such employees would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act.