What the law says about hiring an illegal foreign worker in South Africa

With unemployment figures at an all-time high and South Africa facing numerous economic challenges, the Department of Home Affairs (DHA) and the Department of Labour are taking steps to curb the employment of illegal foreign nationals living in South Africa, says Jo-lene Da Silva-Vergottini, expatriate solutions advisor at Xpatweb.

“With a spotlight on corruption at immigration level, in the form of falsified visas and bribery, this has only made the topic more sensitive,” she said.

“Consequently, the DHA has taken action and established an anti-corruption unit comprising of immigration experts, lawyers and forensic investigators, in the hopes that employment practices towards foreign nationals will be put under scrutiny.”

Da Silva-Vergottini stated that companies turning a blind eye to the validity of employee visas are putting themselves and their businesses at risk.

What the law says

The Immigration Act and the Employment Services Act clearly state that no one shall employ foreign nationals whose status prohibits them from being employed in South Africa.

However, companies still employ candidates without doing the necessary checks, ensuring they adhere to the regulations put forth in both amended acts, said Da Silva-Vergottini.

“This will not only result in the immediate deportation of the foreign national, but it can also leave the South African employer facing a hefty fine or even imprisonment, not to mention the bill for repatriating the individual to their home country.

“As sobering as all this is, the employee, regardless of being a foreign national without a valid working visa, is still afforded legal protection from an unfair dismissal under the Labour Relations Act, especially if they can prove negligence on the part of the employer.”

In other words, besides already facing penalties or imprisonment, if the act of deporting the foreign national results in them being unfairly dismissed, the employer can still be drawn into a lengthy legal dispute with the employee through the Commission for Conciliation, Mediation and Arbitration (CCMA), said Da Silva-Vergottini.

“For small to medium enterprises (SME), one such exercise could cripple their business and force closure.

“For larger corporates, the full weight of the decision would be cast on the Human Resources (HR) department within the organisation, as they are tasked to ensure compliance and adherence to all regulations.”

Da Silva-Vergottini said it could also lead to the government conducting regular audits on the company’s employment records, which is akin to constant surveillance from both regulatory bodies.

She said the question will always be what HR departments can do to protect their company when employing foreign nationals.

Establishing vetting processes and staying current

It is imperative to incorporate updated vetting processes when employing foreign nationals, Da Silva-Vergottini said. “Fine-combing each job applicant is a tedious but necessary task, which forms part of the HR duties and obligations.

“Understanding permit and visa types, which categories they belong to, and what the accompanying regulations say about employment on that permit or visa, is just as important.

She said that while it is a challenge to stay current with legislation, it is not impossible. There are numerous platforms and resources available to HR departments.

“Teachings and subsequent implementation of changes to legislation regarding the employment of foreign nationals should be a company standard.”

The onus rests on the employer and the HR department in a company to provide the relevant assurances that their workforce is fully compliant in all regards, Da Silva-Vergottini said.

Read: Questions around new maternity rules proposed for South Africa

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What the law says about hiring an illegal foreign worker in South Africa