Wiseman Khuzwayo
Illegal workers in South Africa were protected by the labour laws, which might compel companies to consider suspension or disciplinary action before verifying the worker’s legal status, Siobhan Viljoen, an associate partner in the employment law department at Shepstone & Wylie Attorneys, said yesterday.
She was commenting on a recent report published in Business Report about nine undocumented immigrants, who were reportedly arrested during a raid at a textile factory in Newcastle by Home Affairs officials. The workers were subsequently deported to Lesotho.
“Many employers have a misconception about illegal immigrants and feel these workers can be exploited. They are protected under the Labour Relations Act (LRA) and the Basic Conditions of Employment Act, especially where there is a collective agreement in place,” she said.
Viljoen said the Labour Court had confirmed that illegal workers did have rights and should not be subjected to unfair treatment by their employers.
In the case of Southern Sun Hotels vs the Council for Conciliation, Mediation and Arbitration (CCMA) and others, on June 21 the court considered whether the suspension of a foreign national whose work permit had expired, pending her disciplinary hearing, could fall within the definition of an unfair labour practice under the LRA.
The Seychelles citizen was working for Southern Sun when her study permit expired on May 30, 2008.
Upon her permit expiring, Southern Sun was of the view that the employee could no longer lawfully tender her services in terms of the Immigration Act and suspended her without payment.
The employee was told she needed to obtain a valid work permit if she wished to stay on. When she failed to obtain a work permit, she was called to a disciplinary hearing.
Southern Sun dismissed the employee on the basis that she was unable to lawfully render her services.
According to Viljoen, the employee approached the CCMA, not to challenge her dismissal but to challenge her suspension, pending a disciplinary hearing. At the commencement of the arbitration, Southern Sun challenged the CCMA’s jurisdiction on the grounds that the employee could not lawfully tender her services. The hotel group argued that she was therefore not entitled to any remuneration during her suspension.
Viljoen says: “In other words, the suspension of employees who do not have valid work permits can be brought within the confines of an unfair labour practice.
“The commissioner also referred to previous decisions of the Labour Court where it was held that illegal foreigners or undocumented immigrants are in fact employees for the purpose of the LRA.
“In essence, the commissioner found that the employee was entitled to the protection offered to employees in terms of the LRA, even though she did not have a work permit.”