NATIONAL LOCK DOWN: EMPLOYERS RESPONSIBILITY TO CLAIM UIF FOR THEIR FOREIGN NATIONAL EMPLOYEES AND RELATED VISA ISSUES
The South African government has implemented the National Disaster Benefits Fund (“the Fund”) which is aimed at providing limited financial support to employees affected by the implementation of the lock down. The Fund is administered through the Unemployment Insurance Fund. Employers are encouraged to assist their employees to claim UIF benefits from the Fund or to claim on their behalf.
There appears to be confusion as to whether or not foreign national employees are eligible for UIF relief from the Fund, the impact of expiration of various visas/work permits and how this affects continued employment during the lock down period. We address these issues below.
1. In order to be eligible to claim UIF benefits from the Fund, both employer and employee must have been contributing to the Unemployment Insurance Fund (“UIF”) and be compliant in all the other aspects thereof.
2. Such foreign national employees will be afforded all the protection South African citizens receive in terms of our country’s employment laws. It is however suggested that you, as the employer, apply to UIF on behalf of your affected foreign national employees.
During this lock down period many foreign nationals may face challenges in renewing their visas and work permits. If a foreign national does not renew their visa, they could be declared an ‘undesirable person’, sent back to their country of origin and banned from entering South Africa for a period of time. Should this occur, the foreign national will have to apply to the Government to remedy their illegal status.
The Department of Home Affairs (“DOHA”) has issued temporary directives to address the current situation in relation to the expiration of visas and work permits. Foreign nationals who are already in South Africa and whose visa is due to expire or has already expired during the lock down period, will be permitted to apply for a visa and, should all the necessary requirements be met, will be issued with a visa valid until 31 July 2020.
For those foreign national individuals whose permits have expired between December 2019 and March 2020, they will not be required to complete an ‘Authorisation for an illegal foreigner to remain in the country pending an application for status’. The DOHA has advised that the above is temporary and will be reassessed and addressed once the national lock down ceases.
Therefore, if you have an employee whose visa/work permit is due to or has expired during this period, you must provide the employee with a reasonable opportunity to renew their documents. You would be entitled to request a copy of the application they submitted and ask them to report to you on the progress thereof. It is important to inform foreign national employees that you are not legally permitted to continue with the employment relationship if the employee does not have the necessary valid visa or work permit. In such an instance you would look at retrenching the employee due to operational requirements. It is also important to remember that as the employer you would still have to follow a fair process when terminating the employment relationship.
In essence, if you can assist foreign national employees where reasonably possible, you are obliged to do so.