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What employers need to know about employing foreigners in South Africa

By Neil Coetzer, Partner and Shahnaaz Bismilla, Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

 

The employment of foreigners in South Africa is regulated by the Immigration Act 13 of 2002, as amended (“the Immigration Act”). The Immigration Act provides for the admission of foreigners to, their residence in and departure from South Africa and matters connected therewith including the ability of foreigners to work in South Africa. The Immigration Act is supplemented by the Immigration Regulations which underwent significant changes in May 2014, specifically in relation to work visas.

 

The Employment Services Act 4 of 2014 (“ESA”), which came into effect in August 2015, further regulates the employment of foreigners. ESA has been introduced to promote employment, encourage productivity, decrease levels of unemployment and provide training for unskilled workers. One of the specific aims of ESA is to facilitate the employment of foreign nationals in a manner that is consistent with the objects of the Immigration Act. Importantly, the ESA accords jurisdiction to the Labour Court to deal with issues relating to the employment of foreigners and also confirms the sanctions for non-compliance as set out in the Immigration Act.

 

In addition the Labour Relations Act 66 of 1995, as amended (“the LRA”) is applicable regardless of the legal status of the employee. The LRA governs disputes relating to unfair dismissal and unfair practices in employment and regulates the resolution of these disputes.

 

The Immigration Act and Regulations

Section 38 of the Immigration Act provides that no person shall employ:

 

  • an illegal foreigner;

 

  • a foreigner whose status does not authorise him or her to be employed by such person; or

 

  • a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.

 

In terms of section 38(2) of the Immigration Act, 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.

 

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.

 

The Labour Relations Act

There is a misguided view amongst employers that they can side-step labour regulations when it comes to employing foreigners.  It is important to note that foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the Labour Relations Act 66 of 1995, as amended (“the LRA”).

 

Section 213 of the LRA defines an ‘employee’ as:

 

(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and

 

(b) any other person who in any manner assists in carrying on or conducting the business of an employer.

 

It is also relevant to consider the provisions of the Constitution of the Republic of South Africa, Act 5 of 2005 (“the Constitution”) which provides in section 23(1) that everyone has the right to fair labour practices and not only citizens.

 

The law does not declare that a contract of employment concluded without the required permit is void nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of “employing” a foreign national in violation of the law. All of the liability is therefore attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. It is the illegal employment of a foreigner that is prohibited. 

 

Therefore a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit is still an ‘employee’ for the purposes of the LRA. This means that the employee would have recourse to compensation in the case of an unfair dismissal, through the CCMA. Such employees would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act.

 

These principles were confirmed in the matter of Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC) where the employee was dismissed after the expiry of his work permit. The employee referred an unfair dismissal dispute to the CCMA, where the question of the CCMA’s jurisdiction to hear the case was considered. The CCMA ruled that it did have jurisdiction to determine whether the employee had been unfairly dismissed and found further that the employee’s dismissal had been unfair.

 

In view of the CCMA’s ruling, the employer took the matter on review to the Labour Court. The Court held that the contract of employment between the employee and employer was valid, and remained so until it was terminated by the employer.  The Court also found that the employee, despite being a foreign national, fell within the definition of an employee for the purposes of section 213 of the LRA and as a consequence enjoyed the protection afforded by the LRA.

 

It is important to understand that employers must still act fairly towards foreign employees, regardless of the legality of the employment.

 

Conclusion

The law clearly places the onus on the employer to comply with the relevant legislation and holds the employer liable for non-compliance. It is therefore, necessary that prior to the employment of any foreign person, employers should take legal advice to ensure that they comply with the relevant statutory obligations, including the recently enacted ESA.

 

The employment of foreigners is designed to be a short-term measure to bridge the skills shortage within an employer’s business and to facilitate the transfer of skills. Employers should, therefore, ensure that a skills transfer plan be prepared to ensure that the relevant skills are transferred to a South African citizen and that the necessary time and resources are invested in transferring and retaining the skills in South Africa.

 

For more information please contact Neil Coetzer at [email protected], Shahnaaz Bismilla at [email protected] or (011) 783 8711 / (011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.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

 

                   

The OHS Act and the Responsibilities of Management

30 September 2021 (08:30 – 16:00)

Interactive Online Course

Employment Equity Committee Training

30 September 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

01 October 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

01 October 2021 (08:30 - 16:00) (Fully Booked)

Interactive Online Course

15 October 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

07 October 2021 (09:00 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

08 October 2021 (09:00 - 12:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

15 October 2021 (09:00 - 12:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

21 & 22 October 2021 (09:00 - 16:00)

Interactive Online Course

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

 

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