The Rights of foreigners employed without valid work permits in South Africa

Source: Strategies, 22/02/2018

Occasionally I get an email or a phone call from someone who has had
his or her contract abruptly terminated or amended by the employer on
the basis that their work permit is about to expire or has expired.
In some instances when an employer discovers that the work permit or
permanent residence status presented is for some or other reason
fraudulent , terminates employment of the individual immediately.
Those whose employment is not terminated find themselves in
situations where they are not remunerated because they do not have a
valid visa. This is often a common occurrence with government
departments. So what is the legal position of a foreign national who
is employed without a valid visa? Is the employment contract invalid?
Can a contract be varied on the basis of the immigration status of
the employee?
The immigration Act in:
Section 38(1) provides that no person shall employ (a) an illegal
foreigner,( b) a foreigner whose status does not authorize him or her
to be employed; (c) a foreigner on terms, conditions, or in a
capacity different from those contemplated in such foreigner`s status
Section 49(3) Anyone who knowingly employs an illegal foreigner or a
foreigner in violation of this Act shall be guilty of an offence and
liable on conviction to a fine or to imprisonment not exceeding one
year, provided that on such persons second conviction of such an
offence shall be punishable by imprisonment not exceeding two years
or a fine, and the third or subsequent convictions of such offences
by imprisonment not exceeding 3 years without the option of a fine.
The above sections are often used to justify summarily terminating
the employment of a foreigner whose status comes under dispute or
changing the terms of the contract to less favourable terms and some
instances the withholding of a salary for work done. Under different
circumstances all the above would be considered unfair labour
practices that would justify referring the employer to the CCMA.
Section 23 of the Constitution guarantees that EVERYONE has a right
to fair labour practices and this includes foreigners both legal and
illegal . It therefore seems that there is conflict between the
Immigration Act and The Constitution. The immigration Act on the one
hand appears to empower employers to dismiss anyone on the basis of
their status or lack thereof and yet the Constitution guarantees that
everyone has a right to fair labour practices and the protections
from unfair dismissals etc.
This issue was the subject of the Labour Court in Discovery Health
Limited v CCMA and Others JR2877/06. In this case Mr Lanzetta an
Argentinean National was employed by Discovery Health whilst his work
permit was endorsed with a condition to work for another employer.
The permit then subsequently expired as a result of a delay by
Discovery to issue Lanzatte with the requisite paperwork to apply for
his permit. He was then immediately dismissed by Discovery on the
basis that he no longer had a valid work permit. Naturally Lanzatte
referred the dispute to CCMA who ruled in his favour however
Discovery sought to challenge this in the Labour Court.
In their arguments the lawyers for Discovery health argued that the
CCMA had no jurisdiction over the matter because only an employee as
defined by the Labour Relations Act may claim protection from the
Act. It was submitted that an “employee” was party to a valid
contract of employment and since the contract concluded with an
illegal foreigner was tainted with illegality then the contract was
void ab intio. As a consequence thereof he was never an employee and
thus could not claim the right not to be unfairly dismissed and the
CCMA also had no jurisdiction over the matter.
The court in its assessment of the case pointed out section 38(1) and
49(3) referred only to the employer and not the employee. The judge
highlighted that it is apparent neither section directly or
indirectly declare that a contract concluded without the necessary
permit is void nor does a person commit an offence by accepting work
from or preforming work for another without a valid work permit.
In interpreting these provisions the court reminded the parties that
if a statute is capable of interpretation in a manner that does not
limit fundamental rights , then that interpretation should be
preferred. The court relied on the Constitutional Courts Judgment in
Numsa // Others and Bader Bop Pty Ltd.
The right to fair labour practices is a fundamental right and there
is no clear indication from the Immigration Act or any other statute
that it was intended to limit that right. The court reasoned that if
section 38(1) were to render a contract of employment concluded by a
foreign national who does not have a valid work permit void ,” it
would not be difficult to imagine the inequitable consequences that
might flow from a provision to that effect . An unscrupulous
employer, prepared to risk criminal sanction , might employ a
foreigner and at the end of the payment period ,simply refuse to pay
the remuneration due, on the basis of the invalidity of the contract.
In these circumstances , the employee would be deprived of a remedy
in contract and in terms of labour legislation…”.
The court thus concluded that by criminalizing only the conduct of an
employer who employs a foreign national without a valid permit and by
failing to proscribe explicitly a contract of employment concluded in
these circumstances ,the legislature did not intend to render the
underlying contract invalid. This in the courts view was meant to be
sufficient deterrent to employing foreigners without valid permits.
Parliament has since enacted the Employment Services Act. This is an
important piece of legislation that among other objectives seeks to
facilitate the employment of foreign nationals in manner that is
consistent with the objects of the Immigration Act. The Act provides
in section 8(4) An employee who is employed without a valid work
permit is entitled to enforce any claim that the employee may have in
terms of any statute or employment relationship against his or her
employer or any person who is liable in terms of the law.
It is clear from section 8 and the Discovery Health Case that being
an illegal foreigner does not mean that one does not have other
rights in law.
So what does this mean for the employee and employer?
For starters the relationship between employer and employees and its
validity thereof is not dependent on the status of the employee.
Neither is a contract the basis of the relationship, the absences of
one does not render the relationship invalid. Employers may not
terminate or vary contracts or withhold salary payments for the sole
reason that the employee`s permit has expired or has been found to be
invalid. The Employer must afford the employee every opportunity to
rectify his or her status and assist the employee with the
immigration process. Abdicating responsibility in this case may very
well be considered an unfair labour practice in the form of
constructive dismissal. Employers must create an environment that
allows a foreigner to come forward and be assisted in these
circumstances and not fear that in revealing their immigration
challenges they will face dismissal. Employers must make a good faith
effort to ascertain the true status of an employee before concluding
a contract with him
Employees on the other hand must ensure that they have the requisite
authorisation to take up employment and where they do not immediately
take steps to rectify their status. Should one find themselves being
dismissed or have their contract changed or salary withheld on the
basis of their status only, then such conduct can be referred to the
CCMA.