DO ILLEGAL IMMIGRANTS ENJOY PROTECTION FROM UNFAIR DISMISSALS? BY KAREN FULTON & EVA MUDELY

Wednesday, October 22, 2008
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Section 38(1) of the Immigration Act deals with employment of foreign nationals and provides that no person shall employ inter alia an illegal foreigner or a foreigner whose status does not authorise him or her to be employed by such person. The Immigration Act further provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act shall be guilty of an offence and liable on conviction to a fine or to imprisonment. 
In the recent unreported case of Discovery Health Limited v Commission for Conciliation Mediation and Arbitration & others (Case No. JR2877/06 dated 28 March 2008) the Labour Court dealt with the difficult question of whether a foreign national who works for another person without a work permit issued under the Immigration Act is entitled to protection under the Labour Relations Act, 1995 (“LRA”).  
In the Discovery Health case, the employee was an Argentinean national, and was employed by the employer in terms of written contract of employment. The employee’s work permit expired whilst in the employ of his employer. When the employer learnt of this, it terminated the employee’s employment, without following any procedures. The employee invoked the dispute resolution mechanisms of the LRA and referred a dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”). The employer argued that the CCMA had no jurisdiction to determine the dispute because the employee was not an ‘employee’ as defined in section 213 of the LRA as his employment was invalid as it was in contravention of the Immigration Act. The commissioner ruled in favour of the employee, and found that it had jurisdiction to hear the matter. The employer took the commissioner’s ruling on review to the Labour Court.  
The Labour Court held the Immigration Act only prohibits a limited act of employing a foreign national who is not in possession of a valid work permit. The Labour Court held that it was not the intention of the legislature to render such an employment contract invalid. Accordingly, the court held that an employment contract concluded in violation of the Immigration Act would not be invalid, and therefore such employees will be entitled to protection under the LRA.  
This decision by the Labour Court affords significant protection to foreign nationals who are not in possession of a valid work permit. Interestingly, the court did not consider the issue of whether it was unfair for an employer to dismiss an employee due to the fact that her continued employment breached the provisions of the Immigration Act.  
We are of the view that an employer who discovers that it has been employing an employee in contravention of the Immigration Act, cannot be required to continue to employ a foreign national, in contravention of the Immigration Act. In such circumstances, we believe that an employer has a fair reason to terminate an employee’s contract of employment. This must be effected in accordance with a fair procedure. We would suggest that an employer should follow an incapacity procedure, as a foreign national who is not in possession of a valid work permit lacks the capacity to legally render services to her employer. 
Karen Fulton is a director and Eva Mudely is a senior associate at Bowman Gilfillan