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Illegal Workers have Labour Law Rights

Ivan Israelstam

Many employers have long assumed that illegal immigrants or employees without work permits have no legal rights in South Africa. Many employers have consequently mistreated illegally employed staff believing that such employees have no recourse to labour law. That is, employers have paid illegal immigrants low wages, deprived them of employee benefits and have dismissed them at will. They have based their actions on the assumption that their so called ‘illegal employees’ are unable to use the law to take the employer to task. However, it has recently been confirmed that this type of employer is labouring under a dangerous misapprehension.

In the case of Discovery Health Ltd vs CCMA & others (CLL Vol. 17 April 2008) a Mr Lanzetta, an immigrant, obtained a temporary residence permit and later a work permit to work for a business called MPCS. He later joined Discovery Health as a call centre agent before his work permit was renewed. He claimed that Discovery had delayed giving him the documents he needed to renew his work permit which then expired. Discovery then terminated his employment on the grounds that his continued employment would breach section 38(1) of the Immigration Act that effectively prohibits persons from employing foreigners whose status does not authorise their employment.

Lanzetta then referred a dispute of unfair dismissal to the CCMA. Discovery then contested the CCMA’s jurisdiction to consider the dispute on the grounds that his employment contract had been voided by his illegal status and that Lanzetta was therefore not an employee. It is law that the CCMA does not have jurisdiction over cases referred by people who are not employees. The CCMA decided that, as long as an employment relationship existed it did have jurisdiction to deal with the matter. The employer, dissatisfied with this jurisdictional finding, took it on review to the Labour Court.

The Court found that:

  • Although Lanzetta’s employment status may have been illegal he was resident in South Africa legally.
  • It had been the employer and not Lanzetta who had contravened the Immigration Act because the wording of that act prohibited employers from employing certain foreigners rather than prohibiting the foreigners from accepting employment.
  • Section 23 of the Constitution provides that ‘everyone’ has the right to fair labour practice. There is no indication in the Constitution or in the Immigration Act that illegally employed foreigners are excluded from this constitutional right.
  • The Immigration Act’s prohibitions against the employment of so called ‘illegal’ foreigners does not void the employment contract of such a foreigner.
  • The definition of an employee as per the Labour Relations Act (LRA) does not require there to be an employment contract in order for a person to be an employee.
  • Neither does section 23 of the Constitution require the existence of an employment contract.
  • International law and ILO Convension 87 supports this principle.
  • The definition of employee does extend to people who work without the existence of a contract.
  • The Court therefore agreed with the CCMA that Lanzetta was an employee in terms of labour law and that the CCMA did have jurisdiction to consider his dispute.

It is important to note that this most important court decision did not include a finding that Lanzetta had been unfairly dismissed. The Court was merely asked to decide whether the CCMA was entitled to hear Lanzetta’s matter. This ruling only allows the CCMA process to get going. It is still to be decided whether it was unfair of the employer to dismiss Lanzetta due to the fact that his continued employment breached the provisions of the Immigration Act. Nevertheless, employers need to take heed of the warnings that stem from the Lanzetta case. That is, employers should not:

  • Employ people whose employment is illegal
  • Delay in assisting foreign employees to obtain the documents they need to maintain the legality of their employment
  • Treat foreign or illegal employees any differently to other employees
  • In dealing with the problem of illegally employed staff members, terminate their employment without following legal procedure
  • Become the meat in the sandwich between the provisions of the Immigration Act on the one hand and the requirements of the LRA on the other. Instead, employers should obtain expert advise before taking any decisions or any action in this regard.

Ivan Israelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: [email protected]. Web Address: www.labourlawadvice.co.za.

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

We will commence on the 10th of January 2022. Please refer back to the website in early January to view upcoming courses and workshops.

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