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Employers generally take business decisions that can boost the profitability of their businesses. Hiring employees with the necessary skills, can make a major contribution to the profitability and sustainability of the business.
The South African labour environment is a highly regulated one. Except for legislation such as the Employment Equity Act, 1998 (Act 55 of 1998) and the Basic Conditions of Employment Act, 1997 (Act 75 of 1997) which regulate the terms, conditions and benefits of employment, employers often forget that the appointment of foreign workers are also strictly regulated.
A foreign employee is any person who is not a South African citizen, but holds a valid work visa and may therefore be employed in an employment relationship.
Legislation relating to foreign workers
The employment of foreign employees in South Africa is regulated by the Immigration Act, 2002 (Act 13 of 2002), as amended. The law stipulates that employers may not employ an illegal foreign person, nor a foreign person whose status does not allow him or her to be employed by a South African employer, or who is not in possession of a valid work visa issued in terms of the Immigration Act.
At the same time, the Employment Services Act, 2014 (Act 4 of 2014) sets radical requirements that an employer must comply with before a foreign worker can be employed. This law confirms the fact that no foreign person may be employed without a valid work visa.
One radical requirement in this piece of legislation is that, before appointing a foreign person, the employer must ensure that there are no local persons with suitable skills to fill the vacancy.
Rights of foreign workers
A foreign employee enjoys the same rights as a South African citizen and acquires such all rights (and obligations) by way of South African labour legislation. Employers should also keep in mind that foreign workers, like their local counterparts, have the right to refer any labour law dispute to the Commission of Conciliation, Mediation and Arbitration (CCMA).
If the worker’s work visa has expired and the employer nevertheless continues to employ this worker, this may create certain expectations, for example the expectation of permanent employment or the renewal of the employment contract. It must, however, be noted that it is illegal to continue employing a foreign worker without a valid work visa.
The employer’s obligations
An employer who hires a foreign employee must, among other things, be assured that the worker holds a valid work visa – not just a passport – and must do what is necessary to confirm the validity of the work visa.
The termination date of the fixed-term employment contract offered may not exceed the expiration date of the work visa, and the employer may not allow the worker to remain employed once the visa has expired. Employees must have on record certified copies of the employee’s passport and work visa, as well as proof of the employee’s employment contract, job description and task list.
Should an illegal foreign worker be employed without the necessary documentation, the employer will be guilty of a crime and a possible prison sentence of up to five years can be imposed.
The employer’s rights
The rights of employers who employ foreigners are regulated by South African labour law. Employers have the right to take disciplinary action against foreign workers and to impose corresponding sanctions.
In addition, employers also have the right to act in order to protect themselves against prosecution, should it come to light that a foreign employee does not possess a valid work visa. However, the correct procedure must still be followed to terminate his or her employment in such a case.
Appropriate employment contracts
Because foreign workers’ work visas are temporary, the employer must offer a fixed-term employment contract. It is not necessary to give notice of such a contract coming to an end. The employment contract is automatically terminated due to a natural lapse of time, as agreed in advance, in accordance with the validity of the visa.
For more information, contact Ansofie van der Walt on 0861 101 828 or send an email to email@example.com.