SAA ‘knew’ its consultants were violating immigration laws

Source: The Citizen, 22/04/2017

New York-based consultants allegedly worked without the right
paperwork, and Malusi Gigaba allegedly failed to respond to the issue.



A New-York-based aviation consulting firm, awarded a six-month
contract for $4.5 million (R59.1 million) by South African Airways
(SAA), allegedly violated the Immigration Act by allowing its team to
work in the country on tourism visas.


Seabury Aviation Consulting, now part of Accenture, has since March
stationed about seven staffers at OR Tambo International Airport in
Johannesburg without work permits. Yet the department of home affairs
has taken no action against them.


Seabury started its work at SAA in January and the contract expires in
June.


A document seen by The Citizen shows that Seabury’s vice-chairperson,
Michael B Cox, executive director Michael Mason, associate consultants
Christopher Jacobi and Abby Nutting, consultants Queenie Chan and Erin
Jakupciak and associate Justas Gumbrevicius are among those accused by
the SA Transport & Allied Workers’ Union (Satawu) of working in South
Africa on visitors’ permits.


An SAA internal memorandum leaked to The Citizen, titled Immigration
Law Implication, dated March 3, shows that acting CEO Musa Zwane
confirmed to the board that only one team member from Seabury has the
requisite “short-term work permit”, which, according to Section 11
(2), allows foreign nationals to engage in substantive work.


The memorandum stated that several members of Seabury have ordinary
tourism or vacation visas, which only allow for attendance of meetings
or conferences and not execution of any substantive work.


“From information available and provided to SAA, it appears that the
consultants have section 11 (1) permits, which does not allow any
person to conduct any substantive work and in special circumstances be
used to attend meetings or conferences, but is intended or issued for
ordinary visitors.


“In this instance their continued work for SAA, albeit on behalf of
the consultant, is in contravention of South African immigration
laws,” reads the SAA internal memorandum.


The memorandum adds: “SAA is deemed an employer and bears the
liability in the event of a contravention of the Immigration
Act.”


The internal memorandum was circulated a few hours after Satawu
accused the airline in writing of violating the Immigration
Act.


Satawu addressed the letter to Zwane, general manager of human
resources Mbongeni Manqele, and copied it to SAA board chairperson
Dudu Myeni and the then minister of home affairs, Malusi Gigaba.
Satawu said Gigaba did not respond to them or address the issue.
A Cape Town law firm specialising in immigration services says it is a
criminal offence to employ anyone who does not have a work visa.
Prosecution and conviction of such a criminal act could result in a
fine or a prison term of no less than five years.


SAA acknowledged in its internal memorandum that it was violating
immigration laws, and informed the union the matter would be
investigated.


In its letter, Satawu demanded to know why Seabury workers were being
allowed access to SAA premises without work permits.


Satawu national sector coordinator for aviation Matthew Ramosie said
it “clearly undermines the laws of this country, which includes among
others labour laws”.


“Our understanding is that before these individuals can work in this
country, a work permit application is supposed to be done in our
embassy in the US.


“Satawu is greatly concerned and seeks your intervention in making
sure that these individuals’ employment is terminated with immediate
effect until they have work permits.”


After Satawu’s intervention, SAA’s legal adviser recommended these
workers return to their home country immediately.


SAA then recommended that they obtain a work permit in their home
country prior to coming to South Africa to execute the
contract.


SAA also said it would send a formal notification to Seabury, but the
airline would “exercise and reserve its legal and contractual rights
in so far as this contravention amounts to a breach of terms and
conditions of its contract with the consultant”.


In response to The Citizen inquiry, SAA spokesperson Tlali Tlali said
they were not aware of any member of the Seabury team who was deported
by home affairs in 2008 or recently for non-compliance.


Asked how many Seabury workers were stationed at OR Tambo, Tlali said,
“Seabury operates in accordance with its own business model on
assignments it undertakes. As such, SAA neither controls the
allocation nor movement of resources during the assignment.”


Tlali added: “When we became aware that a number of Seabury
consultants seconded to SAA were not in full compliance with South
African immigration laws in that some were not in possession of
required short work authorisation permits, SAA demanded from Seabury
to comply with immediate effect. The airline, however, continued with
the services offered by the consultants, albeit with a smaller team
whilst the outstanding compliance issues received attention. Those
issues were subsequently resolved.”


The Citizen also presented SAA and Seabury with the names of the
employees who are accused of working without proper documents,
requesting them to confirm, but they did not.


Phoned for comment, Accenture’s executive support analyst in New York,
Kisha Henry, informed The Citizen several times that she had referred
the publication’s media enquiry to Accenture corporate, Stacey Jones.
Several enquiries were also sent directly to Jones, instead, a South
African-based Accenture employee, Jonathan Mahapa, contacted The
Citizen alleging Seabury sent the response to SAA. He said SAA would
respond on their behalf, but refused to be quoted.


However, Tlali said: “I don’t speak on behalf of Seabury. I am aware
you have sent questions to them. We do not speak on behalf of any
service providers.”


Later, Seabury told The Citizen that all their workers had valid
permits or South African citizenship.


Tlali said Seabury was contracted for an all-inclusive total amount of
$4.5 million and alleged the airline was not responsible for any other
costs related to this project. He said the contract was from January
and ended in June.


“The appointment of Seabury consultants followed a multiple source
bidding process, which is provided for in our Global Supply Management
Policy (GSM Policy). Out of six potential bidders, to whom the tender
was issued, and a thorough evaluation process undertaken, Seabury
Corporate Advisors emerged as a preferred bidder and was appointed in
line with the delegated approval authority,” said Tlali.


Kruger was shocked that SAA was paying Seabury R59 million yet their
employees did not have proper work permits. She said in most cases
employees would employ illegal immigrants at a lower cost and not pay
them lots of money.


Home affairs spokesperson Thabo Mokgola said he would ask former
Gigaba whether he received a memo from Satawu and comment thereafter.
The Citizen forwarded Satawu’s memo to Mokgola, but no response was
received from him at the time of going to print.


In terms of Seabury’s team failure to comply, Mokgola said he could
comment without The Citizen’s submission of their passport numbers to
the department.


Satawu informed The Citizen that the non-compliant workers were
rotated with others, who also did not have proper work permits.


“Depending on the duration of their visitors’ permits, a team that
does not have work permits will be allowed to work for a week or two
at SAA premises.


“The same team will go back to their home country and then be replaced
by another team that does not have work permits,” said Ramosie.


South African Cabin Crew Association treasurer Gift Bilankulu and
general secretary Mpho Moikangoa said Seabury’s credibility was
questionable.


They alleged there had been the same scenario in 2008.


Bilankulu said: “We want to know why the department of home affairs
and SAA even allowed them to come back and work in South Africa
without proper documentation.


“How can home affairs allow people who were working illegally to come
back again?


“Even if they now followed the proper procedures, they were guilty so
they can’t be allowed to come back without penalising them.
“We want to know what happened.”