The Legalities Of Hiring An Illegal Foreign Worker In South Africa
Arisha Rajaram
The law
The Immigration Act 13 of 2002 and the Employment Services Act 4 of 2014 states that no one shall employ foreign nationals, where their status prohibits them from being employed in South Africa.
However, not every company does checks on new employees, and this may lead to various issues for both the employee and the employer in coming days. The employee could, most likely, be deported, while the employer may face a hefty fine or even imprisonment.
Dismissal of the employee
While the employee may be a foreign national, and may not have a valid working visa, the employee would still be afforded legal protection from an unfair dismissal under the Labour Relations Act 66 of 1995, especially if the employee can prove that the employer had acted negligently.
For example, besides already facing penalties or imprisonment, if the act of deporting the foreign national results in them being unfairly dismissed, the employer can still be drawn into a legal dispute with the employee through the Commission for Conciliation, Mediation and Arbitration (CCMA).
Cautionary notes to employers
For protection of the rights of employers and employees alike, all employees must ensure that correct checks are done by employers prior to hiring any employees. An important aspect would be to ensure that employees have valid documentation to be in South Africa.
Employers would also need to ensure that they understand permits and visa types, as well as what the regulations in terms of legislation state about these permits and visas.
If these checks are not complied with, there are serious repercussions for both employers and employees, as well as criminal sanctions where an illegal foreign national is employed in South Africa.
For further information of any of your Labour Law needs, please contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za or on 073 2777 973
Article Disclaimer
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
