22 February 2018 – Strategies
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.
22 February 2018 – Strategies