The devastating building collapse which occurred in George, Western Cape on 6 May 2024 has become a topic of conversation on local and international news outlets, social media platforms, and households across the country. Although there were several questions raised about the cause of the incident, significantly more were raised about the hiring of foreign nationals, as it was confirmed that a large majority of the workers who were rescued and recovered from the scene, were not South African nationals. Based on the general public’s response to this information, it is evident that many people are unaware of the legal obligations South African employers have towards foreign nationals, whether they are employed legally or illegally. For purposes of this article, we will (1) record the Constitutional provisions protecting all workers in South Africa; (2) state who an ‘employee’ is as defined in the relevant employment legislation; and (3) list specific obligations employers have from a labour and employment perspective in so far as foreign nationals are concerned.
Constitutional Provisions
A common misconception is that foreign nationals, who do not have permits to work in South Africa, do not have any employment rights and protections in terms of our law. This is not correct. Section 23(1) of the Constitution of the Republic of South Africa, 1996 (“Constitution”) provides that “[E]veryone has the right to fair labour practices”. The term ‘everyone’ is indicative of the broad approach the Legislature has adopted in respect of the rights guaranteed in the Constitution, as confirmed in section 7(1) of the Constitution, which provides that the Bill of Rights “enshrines the rights of all people in our country”. In keeping with the aforementioned sections, every person is protected against being subjected to unfair labour practices in our country, irrespective of their nationality or visa status. The same is true for individuals who may be legally employed yet perform illegal work. When discussing this particular issue, reference must be made to two (2) precedent-setting judgments handed down by the Labour Court (“LC”) in Discovery Health Limited v Commission For Conciliation, Mediation and Arbitration and Others (JR 2877/06) [2008] ZALC 24 (“Discovery case”); and the Labour Appeal Court (“LAC”) in Kylie v Commission for Conciliation Mediation and Arbitration and Others (CA10/08) [2010] ZALAC 8 (“Kylie case”).
In the Discovery case, the LC found a contract of employment between the Applicant (Discovery Health) and Respondent (Mr. Lanzetta) who was an Argentinian national, to be valid, despite the Respondent not having a valid work permit as required in section 38(1) of the Immigration Act of 2002, as amended (“Immigration Act”). Although the section prohibits the employment of illegal foreigner nationals; foreigners whose status do not authorise them to be employed; or the employment of foreigners on terms and conditions or capacity different from those contemplated in their status, the LC was not convinced that this meant these categories of individuals do not enjoy protection under our law. The LC held that even if the contract concluded between the Applicant and Respondent was invalid as a result of the Applicant not being permitted to employ the Respondent in terms of section 38(1) of the Immigration Act, the Respondent was nonetheless an ’employee’ as defined by section 213 of the Labour Relations Act of 1995, as amended (“LRA”), as the definition was not dependent on a valid and enforceable contract of employment.
Also of importance is the Kylie case which exemplifies the Constitutional protection afforded to workers, irrespective of the legality of the work which they perform. The Kylie case concerned a South African sex worker who was employed in a massage parlour to perform various sexual services for a reward. A dispute arose regarding the termination of Kylie’s employment which was arbitrated in the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The CCMA Commissioner however found that Kylie’s employment was unlawful and concluded that the CCMA did not have jurisdiction to arbitrate Kylie’s unfair dismissal case as she was not an employee for purposes of the LRA. The LAC however found that the fact that prostitution is rendered illegal does not destroy all the Constitutional protection which may be enjoyed by someone like Kylie and that she was in fact an employee as defined in the LRA, notwithstanding the legality of her employment contract. The Court further found that only those rights which are necessary for the implementation of the provisions of the LRA were not enjoyed by Kylie. Her right to dignity however remained intact and was not to be exploited or abused. The associated Constitutional protection should be available to her as it would to any person whose dignity is attacked unfairly. Additionally, as an extension of section 23(1) of the Constitution, the LRA ensured that an employer respects these rights within the context of an employment relationship. For these reasons, the Court found that there was nothing which indicated that Kylie did not enjoy any form of protection in terms of the LRA.
Definition of ‘Employee’ and the Obligations of Employers
Section 213 of the LRA defines an employee as “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer…”. The Basic Conditions of Employment Act of 1997, as amended (“BCEA”), and Employment Equity Act 55 of 1998, as amended (“EEA”), contain identical meanings whereas the Occupational Health and Safety Act of 1993, as amended (“OHSA”) defines an employee as “any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person”.
Where an individual is categorised as an ‘employee’, specific obligations arise on employers, irrespective of the employee’s legal status, or the legality of the work which they perform, as seen in both the Discovery and Kylie cases. Although the Constitutional protection afforded to individuals is broad, the legislative protection afforded in the LRA or BCEA, for example, is limited to the individual/worker being categorised as an employee. In giving effect to the right to fair labour practices conferred by section 23 of the Constitution, employers are obliged to remain compliant with the provisions of the BCEA, LRA, EEA, and OHSA, which all form part of the fundamental statues governing employment relationships in South Africa. Employers therefore have to act fairly and equitably towards all their employees; comply with their duty in terms of the OHSA to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees; and register all their employees to and contribute towards the Unemployment Insurance Fund and Compensation Fund, to name a few obligations.
It is clear from the above cases and the provisions of the Constitution and aforementioned statutes that an individual’s Constitutional right to fair labour practices is not associated with the lawfulness of their employment or the work they perform. Furthermore, should an individual/worker be categorised as an employee, additional rights and protections are afforded to such persons from an employment law perspective. Employers who employ illegal workers are thus strongly encouraged to refrain from such activities and to constantly monitor the work status of foreign nationals in their employ. As per section 38(2) of the Immigration Act, such employers are explicitly required in terms to “make a good faith effort to ascertain that no illegal foreigner is employed” by them or to “ascertain the status or citizenship” of those whom they employ. Non-compliance with any of the aforementioned statutes will have far-reaching legal and operational consequences for any employer who is found to be in contravene of same.
Andrea Miguel – Candidate Attorney
JUSTINE DEL MONTE & ASSOCIATES INCORPORATED