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 (DoL) are again taking steps to curb the employment of illegal foreign nationals living in South Africa.
Jo-lene Da Silva-Vergottini
Expatriate Solutions Advisor
With a spotlight on corruption at immigration level, in the form of falsified visas and bribery, this has only made the topic more sensitive.
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.
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 13 of 2002 and the Employment Services Act 4 of 2014 both clearly state that no one shall employ foreign nationals whose status prohibits them from being employed in South Africa. However, there are still companies who employ candidates without doing the necessary checks ensuring they adhere to the regulations put forth in both amended Acts.
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).
For small to medium enterprises (SME) one such exercise could possibly 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.
It could also lead to the DHA and the DoL conducting regular audits on the company’s employment records, which is akin to constant surveillance from both regulatory bodies.
The question will always be what HR departments can do to protect their company when employing foreign nationals.
Preventative measures:
Establishing vetting processes and staying current
It is imperative to incorporate updated vetting processes when employing foreign nationals. 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.
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.
Experienced work permit and immigration providers
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. For large corporations, this can be a daunting hurdle to overcome.
Calling on the experience of an immigration specialist with a sound knowledge of immigration and employment laws, as well as permit and visa requirements, will provide the necessary peace of mind that employees have been vetted accordingly.
An immigration provider that is well-versed on the specifications and requirements from the governmental stakeholders, will know the best course of action to eliminate any risk to the company. Failing which, make sure they offer specialist legal services, should there arise any legal dispute.
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