Immigration legislation very strictly prohibits the employment of foreign nationals unless extremely stringent, rigid and unrealistically lengthy procedures are first carried out. However, foreign workers often accept lower wages, are frequently willing to work without invoking their labour law rights and, in many cases, have high skill levels.
It is therefore not surprising that so many employers turn a blind eye to the law’s immigration requirements. However, they do this at their peril because the courts have the power to repatriate illegal immigrants and to impose heavy fines on offending employers.
What then must employers do when they discover that some employees are working illegally? Such employers obviously need to terminate the employment of such employees. However, what is not so obvious is how the employer should go about such terminations.
Where the employee has turned out in fact to have been working illegally employers have, in the past, got away with firing him/her summarily. This is because some CCMA commissioners used to believe that any employment contract between an employer and an illegal employee is null and void. For example, see the case of Georgieva-Deyonova vs Craighall spar (2004, 9 BALR 11143 CCMA) However, the courts have more recently afforded illegal immigrants the same rights as legal workers.
What is even more dangerous for employers is that certain xenophobic or vengeful employees could make false allegations of illegal working status against their colleagues maliciously or without being in full possession of the facts. The employer cannot dismiss a suspected illegal alien before checking up on these allegations. This is because, if the employee is incorrectly fired for being illegal, this will constitute an unfair dismissal. It might also constitute unfair discrimination on the grounds of ethnicity. This could result in the employer having to pay the employee compensation up to the equivalent of 24 months remuneration.
The wise employer’s first step is to investigate thoroughly all allegations that employees are working illegally.
Secondly, especially where the employee’s status is unclear the employer should hold a hearing to establish the truth of the matter before firing the employee. This will give a properly qualified chairperson the opportunity to look thoroughly into the legality of the employee’s status.
Thirdly, where the hearing proves that the employee is working illegally the chairperson should end the employment relationship making it clear that this has been done purely for reasons of immigration law.
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Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za.