Do SA labour laws apply to foreign nationals?

© Vitaliy Vodolazskyy – 123RF.com

On 9 May, raids were conducted in China City in Milnerton and Canal Walk in Century City where 25 foreign nationals were arrested for contravening the Immigration Act. In addition, a manager at one of the businesses was charged with contravention of the Act, which regulates the employment of foreign nationals in South Africa.

Wessels says many employers provide employment to foreign nationals without understanding the legal implications of their decision. “There is a misconception that if someone is a foreign national, normal labour laws, such as the Basic Conditions of Employment Act and Labour Relations Act, do not apply to them.

“It is important that employers know that foreign employees, including those who do not have valid work visas or permits, are afforded legal protection in terms of South Africa’s labour laws and they enjoy all the rights, privileges, duties and obligation of a ordinary South African citizen. They are also protected against unfair dismissal and/or unfair labour practices,” he adds.

Employers must ensure that when they dismiss a foreign national, it is done for a fair reason and in accordance with fair processes. “Employers should not be under the false impression that South Africa’s labour law does not apply to foreign nationals or that foreign nationals do not have any recourse against their employers,” says Wessels.

He adds if people are in the country illegally, they can be deported. Furthermore, 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.”

When employing foreign nationals, a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs. It is up to the employer to check if the individual has valid enabling documents to work in South Africa. “Employers also need to check the expiry date and make sure the employment contract is for the duration of the work permit.

Alternatively, such employees must take steps to renew the documentation timeously. If they don’t, the employer will have grounds to terminate their services,” concludes Wessels.