There seems to be uncertainty amongst employers on how to handle and deal with foreign employees, especially when their work permit expires. For some employers this may be trite for many others there is confusion as to what is expected of them in case this eventuality happens.
It is important to note that from the onset, there are two pieces of legislation that are at play here which employers must grapple with in so far as foreign nationals are concerned; the Labour Relations Act and the Immigration Act.
In terms of the Immigration Act, employers must ensure before hiring foreign nationals that they have a valid work permit or permanent resident permit. In terms of this Act, it is the duty of the employer to ensure that the foreign employee’s citizenship and status is correct. This means that they must validate the documentation with the Department of Home Affairs.
This is important to know as if an employer is found to have employed an illegal foreigner; such an employer will be presumed to have hired the foreign employee illegally and that the employer knew of this fact, unless the employer can prove that he or she hired the employee in good faith and that he or she validated the documents with the Department of Home Affairs and were informed to be in order. More often, however, the situation arises where the foreign employee’s work permit expires whilst in the employ of the company. The question is whether the employer must immediately terminate the foreign employee’s employment due to this fact?
The facts in Southern Sun Hotel Interests (Pty) Ltd iro Southern Sun Waterfront Hotel v CCMA & Others (2011) JOL 27730 (LC) are interesting and worth discussing. Ms Lynn Ernesta, a foreign national hailing from Seychelles. She was employed by the company as a receptionist at its Waterfront Hotel in Cape Town. At the time, she only had a study permit. The permit expired on 30 May 2008.
When the permit expired, Southern Sun told Ernesta that she could no longer lawfully tender her services in terms of the Immigration Act. She was told to obtain a valid employment permit. By 18 September 2008, Ernesta had not succeeded in obtaining a valid permit. Southern Sun instructed her to attend a disciplinary enquiry on 25 September 2008. Pursuant to a disciplinary enquiry, Southern Sun dismissed Ernesta on 7 October 2008 on the basis that she was unable to lawfully tender her services.
The legal question before the court was whether an illegal foreigner is an employee for the purposes of the Labour Relations Act. The court confirmed the decision in Discovery Health Limited v CCMA & Others that an illegal foreigner is an employee and held that Ernesta still enjoyed the status of an employee and therefore still enjoyed the protection offered by the Labour Relations Act even though she did not have a valid work permit.
The court also found that there is no duty to assist a foreign employee to obtain documents but that they should be given reasonable time to obtain documentation in order to continue being lawfully employed.
By necessary implication, this means that an employer cannot immediately terminate employment of a foreign employee whose documentation has expired but after having given the employee reasonable time to renew their work permit, they can thereafter be incapacitated as a result of inability to perform their duties.