EMPLOYING AN ILLEGAL FOREIGNER

31 May 2019, Cindy Allan 1314

It is has happened to all of us at one or other stage in our lives where an illegal foreigner has offered to assist us with small tasks either at our homes or businesses, in hoping to receive some remuneration in return.
A person’s heart automatically goes out to these people and one ends up giving small amounts that we regard as a donation instead of same being a wage.
It may however happen that the offer for assisting and the remuneration in return, happens on more than one occasion and more frequent. At this stage, this can no longer be seen as donations as one will be giving a payment for services rendered in return. This can also not be seen as volunteer work as South Africa has got a specific volunteer visa or a charitable-work-visa which allows for foreign nationals to partake in volunteer or charity work within the republic. Without this visa, a foreigner may also not volunteer for reward or payment.
The employment of foreigners in South Africa is regulated by the Immigration Act 13 of 2002 and specifically Section 38 that stipulates with regards to “Employment”:
1. No person shall employ:
  1. An illegal foreigner;
  2. A foreigner whose status does not authorize him or her to be employed by such person.
2. An employer shall make a good faith effort to ascertain that no illegal foreigner is employed by him or her or to ascertain the status or citizenship of those whom he or she employs.
Section 38(3) and (5) provide two presumptions being the following:
1. If it is proven that a person was employed in violation of section 38(1), there is a presumption that the employer knew that such a person was not allowed to be employed.
2. Further if an illegal foreigner is found on the premises of a business, it shall also then be presumed that the foreigner was employed by that person who is in control of that business, unless prima facie evidence to the contrary is adduced.
The Department of Home Affairs has warned that they will be increasing the number of audits and investigations amongst South African companies that employ foreign nationals. Anyone who is deemed responsible for the appointment of an illegal foreigner could face serious repercussions, such as fines or imprisonment. It is thus suggested that HR professionals, managers, business owners and CEO’s make sure that systems are in place to insure that expatriates are legally employed within their business.
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. It must further be noted that the Act puts a specific and more strenuous requirement on employers to do their due diligence when employing foreigners and especially in the case where five or more employees are employed. It is so that a lot of foreigners have false visas in their passports and it is the responsibility of the employer to ascertain whether such visa is legal or not and whether same has in fact been issued by the Department of Home Affairs. It is thus recommended that employers contact the Department of Home Affairs to check whether the information is accurate.
If you have already employed an illegal foreigner, it must be noted that one cannot similarly dismiss such an employee regardless of such an employment relationship being illegal. The Employment Services Act 4 of 2014 came into effect in August 2015 and this accords jurisdiction to the Labour Court to deal with issues relating to the employment of foreigners. The Labour Relations Act 66 of 1995 is thus also applicable, regardless of the legal status of the employee. Foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissals under the Labour Relations Act. It is only in the case of an independent contractor, where the Labour Relations Act would not be applicable. It must however be noted that an investigation will be made into the actual relationship of the parties instead of the documentation presented and this is specifically where one would want to blur the lines between self-employment and being employed.
A foreigner who thus accepts work without a valid permit is not guilty of an offence. The offence is however attributed to the employer as the law does not penalise the action of the foreign person who accepts the work. In the matter of Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC), the employer took the matter on review to the Labour Court and the court found that the CCMA had jurisdiction to rule whether the employee had been unfairly dismissed. It further found that when one looks at an employee, one only looks at two requirements, being one, whether same has worked for another and number two, whether a person has received remuneration. The issue of whether a valid agreement was in place or not, is not one of the determinations. The court further advised that Section 23(1) of the Constitution also protects against unfair labour practices and that this is not dependent on a valid contract of employment.

In the event of you having employed an illegal foreigner, it is suggested that you terminate such employment by providing the necessary legal notices and as is prescribed in the Labour Relations Act. We suggest that you contact our offices to obtain legal advice in this regard.

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