Abstract
It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.
Highlights
Migration has become a common phenomenon across the world1 and South Africa is no exception.2 Approximately 4.2 million foreign nationals live in South Africa, constituting about 7.2% of the country's population.3 With the increase in the number of foreign nationals living in the country, there is likewise an uptake in the employment of foreign nationals
The Labour Court in Discovery Health Limited v case number WECT461-18 of March 2018 (CCMA) 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees
The CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness
Summary
Migration has become a common phenomenon across the world and South Africa is no exception. Approximately 4.2 million foreign nationals live in South Africa, constituting about 7.2% of the country's population. With the increase in the number of foreign nationals living in the country, there is likewise an uptake in the employment of foreign nationals. 4.2 million foreign nationals live in South Africa, constituting about 7.2% of the country's population.. With the increase in the number of foreign nationals living in the country, there is likewise an uptake in the employment of foreign nationals. Despite the strife that has arisen due to increased competition for resources such as jobs, among others, there is no bar to the employment of foreign nationals, as long as they are authorised to work in the country.. The Labour Court ("LC") in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) (hereafter Discovery Health) has affirmed that the absence of a valid work permit does not invalidate the contract of employment with the foreign national, thereby endorsing the fact that unauthorised foreign nationals are. These articles explain the violence that was perpetrated against foreign nationals in 2008 and in early 2019
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