Many guest houses employ foreign nationals, asylum seekers or refugees while not understanding the risks of this practice. In saying this, it is not implied that employing local citizens do not carry risks.
The focus of this article is the obvious risks of compliance by Employers to ensure that the persons are legally in the country and remains legal whilst employed.
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.
Again, the onus is on the Employer, since it is prohibited to employ a foreign national in violation of the law and 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 Labour Relations Act.
Can a Foreigner Refer an Unfair Dismissal to the CCMA
The fact that the foreign national, who is employed with or without valid documents, is still regarded as an employee and has recourse to compensation in the case of an unfair dismissal, through the CCMA.
These principles were confirmed in the matter of Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC) where the employee was dismissed after the expiry of his work permit. The employee referred an unfair dismissal dispute to the CCMA, where the question of the CCMA’s jurisdiction to hear the case was considered. The CCMA ruled that it did have jurisdiction to determine whether the employee had been unfairly dismissed and found further that the employee’s dismissal had been unfair.
The employer took the matter on review to the Labour Court. The Court held that the contract of employment between the employee and employer was valid, and remained so until it was terminated by the employer. The Court also found that the employee, despite being a foreign national, fell within the definition of an employee for the purposes of section 213 of the LRA and as a consequence enjoyed the protection afforded by the LRA.
How Can The Employer Mitigate The Risks
First of all the Employer should not take chances.
Management of the risks starts at the recruitment stage where the Employer should properly establish the status of any candidate.
- Obtain a proper CV
- Obtain proper original identity documents
- Verify the validity of the documents
- Confirm the expiry date of any passport, work permit or Asylum Letter
- Understand your obligation that these documents must be renewed prior to the expiry date
- Conclude proper contracts of employment
- Contracts of employment for foreign nationals should contain specific clauses to cover the Employer for timeous renewal and the cost of such renewals
- Consult with specialist to assist you in regard to verification and drafting of proper contracts.
Renewal Of Current Valid Work Permits
In cases where your domestic worker has a valid work permit and it is renewable then your domestic worker does not have to return to the country of origin and the renewal can be done locally at a cost of R2870.
PLEASE NOTE THAT – the renewal application must be done before the current Work Permit expires.
My Domestic Worker Does not Have a Valid Work Permit
Where the work permit has expired, or the worker does not have a work permit, your domestic worker will be required return to the country of origin and this is where sound agreements are necessary to cover the Employer in the eventuality where the renewal process is delayed and he/she returns days or even weeks after the intended or agreed date.
Your employee will only succeed with a work permit application in his/her own country if they have a valid undertaking that you as the Employer will employ them when they return to RSA. They also need a certified copy of your ID.
Can I Dismiss My Domestic Worker When I Discover That He/She Does Not Have a Valid Work Permit?
When you employ a foreigner with or without a work permit then you must understand that you accept all the risks and responsibilities and that foreign nationals are covered by all the Labour Laws of RSA as if the worker is a South African citizen.
Termination of the services of a foreigner will be subject to the same scrutiny by the CCMA to determine whether the termination was according to a fair procedure and for a valid reason.
Please do not hesitate to contact us if you have any questions in this regard.