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The Employers Guide to: Foreign employees whose documentation expired

The Employers Guide to: Foreign employees whose documentation expired

Employers often employ foreigners and when their work permit or asylum seeker permit (hereinafter referred to as documentation) expire, employers might be liable for a fine or imprisonment. The question arises, how do employers legally terminate the contract of employment when an employee’s documentation expires?

A foreigner is a person who is neither a citizen nor a permanent resident of South Africa and is regarded as a foreign national.

According to Section 38 of the Immigration Act 13 of 2002, an employer may not employ an illegal foreigner or whose status does not authorize him to be employed.

Section 49(3) of the Immigration Act 13 of 2002 states that anyone who knowingly employs an illegal foreigner shall be guilty of an offense. The employer can be liable for a fine or imprisonment not exceeding 1 year for a first offense. A second offense is punishable by up to 2 years imprisonment or a fine, and a third offense up to 3 years imprisonment without the option of a fine.

In Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC) the employee was dismissed after the expiry of his contract. The Labour Court found that the contract of employment concluded by Discovery and the employee was not invalid, despite the fact that the employee did not have a valid work permit to work for Discovery. They came to the conclusion that he was an employee as defined by Section 213 of the Labour Relations Act and as a consequence enjoyed the protection afforded by the Labour Relations Act.

Conclusion

Employers are not allowed to keep foreigners in their employ, whose documentation expired. Employers have to take action against employees as soon as possible when they discover that their permits expired or they may be liable for a fine or imprisonment as stated above. The expiring of a foreigner’s permit does not automatically terminate the contract of employment and employers are still obligated to follow a due procedure to terminate the employee’s contract.

In some circumstances, it may be required that the employee is afforded a reasonable opportunity to rectify his documentation prior to terminating their contract. Employers will ultimately have to follow the incapacity procedure to terminate the employee’s contract. Employers will also have to give the employee notice of the termination of the contract as per Section 37 of the Basic Conditions of Employment Act 75 of 1997 or as per the contract of employment. However, it is advisable to rather pay an employee for the notice period as you are not allowed to continue employing foreigners whose documentation expired. The termination of a foreign employee’s service or any breach of status on the part of him/her must also be reported to the Department of Home Affairs.

ABOUT THE AUTHOR

Frans Kriek obtained his LLB from the North West University in 2016 and joined SEESA in June 2018. He has since been employed as a Labour Legal Advisor at SEESA Head Office in Pretoria.

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