INDUSTRY JOURNAL Vol . 8
permit , is still employed for the purpose of the LRA . This means that the employee would have recourse to compensation in the case of an unfair dismissal . Such employees would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act – the employee would not be reinstated as this would mean that the illegality of the contract of employment is being condoned .
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 , regardless of the status of the contract of employment .
On review , the Labour 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 purpose of Section 213 of the LRA and , as a consequence , enjoyed the protection afforded by the LRA . Discovery ’ s argument , that the applicant could not be deemed an employee by virtue of the unlawfulness of the contract of employment , was rejected . The court decided that the Immigration Act merely subjects employers to criminal sanctions if they employ foreigners without work permits and that it is not the intention of the legislature to visit such contracts with nullity . The illegal worker is thus still considered to be an employee for the purposes of the LRA . From a procedural point of view the employer must be able to demonstrate that it has done all possible to assist the employee in obtaining a valid work permit .
In Sithole v MEIBC and Others ( 2018 ) 39 ILJ 472 ( LC ), the Labour Court ruled that the employer must thus act fairly towards employees , regardless of the legality of the employment .
The court has ruled that if the effect of Section 38 ( 1 ) was to render the contract of employment void , then the unfairness and inequality that could flow would be obvious . The facts included a refusal by the employer to assist in obtaining the relevant documents that would have enabled the employee to obtain a work permit , and a mere three days to secure a work permit .
The law clearly places the onus on the employer to comply with the relevant legislation and holds the employer liable for non-compliance . The provisions of the law , namely the Immigration Act and the provisions of the ESA , must be complied with by the employer .
Pertinent provisions of the Immigration Act relating to the employment of foreigners by homeowners / contractors and the potential liability of the HOA
Employment of foreigners is , as noted above , regulated by Sections 38 and 49 of the Immigration Act .
The employment in question is or can be between : i . The HOA and the employee ; or ii . A homeowner and the employee ; or iii . A contractor ( utilised on the property ) and the employee .
In terms of i ) above , the HOA , in the capacity of employer , is bound by the same law , as is a homeowner / contractor as employer , in respect of employment .
The pertinent questions relate to the HOA not being the employer , but the homeowner , or the contractor , being the employer .
The employee ’ s access to the premises is then at the discretion and behest of the HOA ( both where the homeowner is the employer or the contractor is the employer ). The employee of the homeowner or contractor cannot render services if access is declined .
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