You may have been following the developments lately regarding illegal immigrants and specifically the risks associated with employing illegal foreigners. 

There has been several instances where  Government has specifically indicated that employers who do employ illegal foreigners will face serious consequences, which may include facing jail time.

There has further been renewed calls to increase workplace inspections by the relevant departments of Labour and Home Affairs, therefore as an employer the likelihood is very high that you may be faced with a workplace inspection very soon.

As a result we thought it well to give brief guidance on the steps to be taken if you do employ illegal foreigners or are unsure on the employees status.  Please do keep in mind that this is a short synopsis and it would be advisable to give us a call directly in order to assess your situation. 

In terms of section 38 of the immigration act no employer shall employ;  

• an illegal foreigner;

• a foreigner whose status does not authorize 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.

Employers must make “good faith efforts” to verify the citizenship and employment status of everyone they hire.  If an employee is found to be working illegally, the law presumes the employer knew this at the time of hiring, unless the employer can prove they hired in good faith and verified the employee’s status. 

If the employer is aware of the employed illegal foreigners status steps must be taken to give the employee an opportunity to provide the correct documentation, failing the employer must then take further steps to terminate the employment relationship.  It is important to note that although such employee may be illegally employed, that the relevant Labour laws still do apply to the employee, this principle was set in the Labour Court matter of Discovery Health v CCMA.

The termination process itself must be preceded by an enquiry where the employee is at least given the opportunity to make representations on why the servcies should not be terminated.  The termination process to be followed will be based on legal incapacity and not misconduct.  This  principle entails that an employee cannot legally fullfill its contractual obligations towards the employer due to its status and due to such employment relationship being in contravention of legislation.

We should mention that there are various types of VISAS / Work Permits / Assylum or similar documents of which permits, for example the ZEP’s validity, have been extended by the Minister of Home Affairs. Therefore it is advisable to contact our offices directly in order to get guidance on the correct steps to be taken in attending to issues of this nature.