Estimated reading time: 7 minutes
Employing foreign nationals in South Africa can support business growth, fill skills gaps and strengthen operations. However, it also places specific legal responsibilities on employers. With increased attention on workplace inspections, work permits and foreign national employment, compliance risk areas may only become clear during a workplace inspection, permit issue or employment dispute.
For employers, the risk is not always obvious. A document may appear to be valid. An employee may be legally present in South Africa. A permit may be in the process of renewal. However, these situations can still create legal, operational and labour law challenges if they are not managed correctly.
This is why SEESA will be hosting an upcoming webinar to help employers better understand the risks, responsibilities and practical considerations involved when employing foreign nationals in South Africa.
Why this topic matters for South African employers
Many employers believe the main concern is whether a foreign national has permission to work in South Africa. While this is important, it is only part of the picture.
Employers also need to consider what happens when immigration-related issues overlap with South African labour law. This is where many business owners may become uncertain.
For example, what should an employer do if a work permit expires? Can employment simply be terminated? What if the employee says a renewal application is pending? What if the person is legally in South Africa, but their documentation does not clearly allow them to work in a specific position?
These are the types of questions that can create serious risk if employers are not prepared.
Being legally present is not always the same as being legally allowed to work
One of the common misunderstandings around employing foreign nationals is the assumption that a person who is legally present in South Africa may automatically work in South Africa.
This is not always the case.
Different categories of foreign nationals may have different rights, restrictions and conditions attached to their documentation. Some may be allowed to work only under specific circumstances. Others may have conditions linked to an employer, position, period of validity or other requirements.
This means employers should be careful not to rely only on verbal confirmation, expired copies, incomplete records or assumptions about an employee’s status. The Department of Employment and Labour has confirmed that employers may not employ a foreign national in South Africa before the person has produced an applicable and valid work permit issued in terms of the Immigration Act.
Before and during employment, employers should know whether they can confidently answer questions such as:
• Do we know which category this employee falls under?
• Does the documentation allow employment?
• Does it allow employment in this specific role?
• Are there any conditions attached?
• Do we know when the authorisation expires?
• Do we have proper records on file if an inspection takes place?
If these answers are unclear, the business may already have a compliance risk.
Workplace inspections can expose more than missing documents
This judgment confirms that where an employment contract or company policy provides for unpaid maternity leave and the contract clearly stateGovernment has indicated increased enforcement around foreign national employment, including greater inspection capacity. This means employers may be asked to prove, often at short notice, that their employment practices and employee records are in order.
A workplace inspection may not only focus on whether a document exists. Employers may also need to show that they have taken reasonable steps to verify, monitor and manage foreign national employment correctly.
This can include questions around:
• Employee records.
• Passport and visa documentation.
• Work authorisation.
• Expiry dates.
• Employment contracts.
• Changes in job roles or working conditions.
• Procedures followed when problems were identified.
If a business only checks documents once at appointment stage and never revisits them, important changes may go unnoticed until an inspection or dispute arises.
The risk does not end when a permit expires
One of the most important areas employers should understand is what happens when a foreign national employee’s work authorisation expires or becomes problematic.
Many employers may assume that an expired permit means the employment relationship automatically ends. However, this assumption can create further risk.
South African labour law generally requires employers to act fairly and follow an appropriate process when dealing with employment-related issues, including where immigration-related concerns arise. A foreign national may still have labour law protection even where there is an immigration compliance concern. In Discovery Health Ltd v CCMA, the Labour Court confirmed that the CCMA had jurisdiction to determine an unfair dismissal dispute involving a foreign national employee, despite the employer’s argument around work authorisation.
This creates a difficult position for employers. On the one hand, continuing employment without valid authorisation may create compliance risk. On the other hand, ending employment without following an appropriate and fair process may expose the employer to an unfair dismissal dispute.
This is why employers need to understand both sides of the issue before making decisions.
Small record-keeping oversights can become costly problems
When employing foreign nationals, compliance is not only about whether the employee had the correct document on the first day of work. Employers also need to think about what happens throughout the employment relationship.
Problems can arise when:
• Documentation is not properly verified.
• Copies are missing or outdated.
• Expiry dates are not monitored.
• An employee changes roles without checking whether their authorisation still applies.
• Renewal applications are not followed up.
• Temporary concessions are misunderstood.
• The employer acts too quickly when a problem arises.
• The business cannot show what steps it took to manage the risk.
These oversights may seem small at first, but they can become serious when the business is asked to explain its compliance position.
What employers should be asking themselves now
Before a workplace inspection or employment dispute arises, employers should take a closer look at how they currently manage foreign national employment.
Important questions include:
• Do we know how many foreign nationals we currently employ?
• Do we know what category each employee falls under?
• Do we have updated copies of the relevant documents?
• Do we know when each visa or permit expires?
• Do we understand what each employee is legally allowed to do?
• Do our managers know what to do if a permit expires?
• Are our employment records inspection-ready?
• Are we applying an appropriate and fair labour process when problems arise?
If an employer cannot answer these questions with confidence, it may be time to review your processes.
Why employers should attend SEESA’s upcoming webinar
SEESA’s upcoming webinar will help employers understand the important legal and practical considerations involved when employing foreign nationals in South Africa.
Instead of waiting for a workplace inspection, expired permit, CCMA referral or compliance issue to reveal the risk areas associated with employing foreign nationals, employers can use this opportunity to better understand where the risks may lie and what they should be paying attention to.
The webinar will create clarity around some of the most important questions employers are currently facing, including the legal landscape, different categories of foreign nationals, work authorisations, temporary concessions, employer duties, illegal employment risks, non-compliant employees and the practical compliance journey from hiring to exit.
Do not wait for an inspection to find the risk areas.
Employing foreign nationals requires more than collecting documents at appointment stage. Employers need proper verification, ongoing monitoring, accurate record-keeping and fair workplace procedures.
With increased scrutiny around foreign national employment, businesses should take this opportunity to review their current practices and ensure that they understand their obligations under South African labour law and immigration-related requirements.
Register for SEESA’s upcoming webinar to learn what employers should know before a workplace inspection or employment dispute arises. https://register.gotowebinar.com/register/7549778356845216351
IVAN HUSSELMAN | SENIOR LEGAL ADVISOR | LABOUR
SEESA can assist employers with practical labour law guidance, compliance support and fair workplace procedures when managing foreign national employment risks. Contact SEESA Labour specialists for practical guidance.