By Ivan Israelstam, chief executive of Labour Law Management Consulting
Xenophobia deters many South African employers from employing immigrants. However, many other employers are not at averse to employing aliens whether they are in the country legally or illegally.
Some of the reasons for the high number of illegal immigrants gaining employment in South Africa include:
• Job seekers from outside our borders provide potential employers with false identity documents or work permits
• Employers do not always think of asking prospective employees for proof of their right to work here
• Other employers, aware of the holes in the law enforcement system in South Africa, close a blind eye to such legal requirements because they couldn’t be bothered
• Some employers believe that an illegal immigrant will be more likely to do his/her work properly and obey the employer’s rules for fear of being reported to the Department of Home Affairs
• Illegal immigrants are often willing to accept lower remuneration than is paid to legal employees
• Employees without legal papers are often more willing to accept poor treatment, transfers to out of the way locations, extra work and not being registered for unemployment insurance
• Many skills are difficult to find in South Africa and many employers do not care whether they obtain these skills legally or illegally.
It is therefore not surprising that so many employers turn a blind eye to the law’s requirements. However, they do this at their peril because the courts have the power under the Immigration Act to repatriate illegal immigrants and to impose heavy fines on offending employers.
Immigration legislation very strictly prohibits the employment of foreign nationals unless extremely stringent, rigid and unrealistically lengthy procedures are first carried out. That is, the employer is, before employing an immigrant, required to prove that it has done everything in its power to recruit a South African into the post in question and that no such South Africans are available. By the time the employer has dragged itself through this time consuming process the foreign national with the rare skills has accepted a job in another country. These restrictive regulations are, under the latest amendments, currently becoming even more rigid and draconian.
What then must employers do when they discover that some employees are working illegally? Such employers obviously need to terminate the employment of such employees. However, what is not so obvious is how the employer should go about such terminations.
An employer cannot dismiss a suspected illegal alien before checking up on these suspicions. This is because, if the employee is incorrectly fired for being illegal, it may constitute an unfair dismissal and/or unfair discrimination on the grounds of ethnicity. This could result in the employer having to pay the employee compensation up to the equivalent of 24 months remuneration.
The wise employer’s first step is to investigate thoroughly all allegations that employees are working illegally.
Secondly, especially where the employee’s status is unclear, the employer should hold a hearing to establish the truth of the matter before firing the employee. This will give a properly qualified chairperson the opportunity to look thoroughly into the legality of the employee’s status.
Thirdly, where the hearing proves that the employee is working illegally the chairperson should end the employment relationship making it clear that this has been done purely for reasons of immigration law.