Refugee awarded compensation after unfair dismissal

Moreover, the permanent employment contract that was entered into was void ab initio (in that in law there was effectively no contract to terminate), contra public policy and unlawful.

Leppan says that although this is quite controversial in legal jurisprudence terms, the judgment was in line with the precedent set by previous decisions from South African Labour Courts.

Leppan explains that in Alain Godefroid Ndikumdavyi v Valkenberg Hospital and others, Ndikundavyi received an annual practising certificate after he obtained a nursing degree from the University of Cape Town. Later, after a written job application, he was erroneously offered a permanent position by Valkenberg Hospital despite the fact that it was 1 July 2010 and he was legally only entitled to practice for a further six months. After 19 days and an admitted administrative error, his employment offer was withdrawn and he was effectively suspended pending his acquisition of the necessary temporary approval.

Vulnerable groups are favoured

"The question must then be asked, how does the Court grant 12 months compensation in the face of principles such as void ab initio, contra public policy and good morals, unlawful and section 10 of the Public Service Act? It did so because the objects of the Labour Relations Act, No 66 of 1995 (LRA) and the protection afforded by the Constitution, take precedence over these other legal principles," explains Leppan.

"The Court said that South African jurisprudence favours vulnerable groups. The Court also came to its decision based on South Africa's international obligations and the formal status of refugees. There seem to be no limits when it comes to the protection afforded by the Constitution through the LRA. When referring to its role in this regard the Court said that it would be vigilant in ensuring that this protection is afforded to vulnerable groups," says Leppan.

Kelvin Buchanan, a candidate attorney in the employment practice notes that whether the employment contract is void ab initio, impossible (such as the present example), contra good morals and public policy, with an illegal immigrant with no valid work permit or in the most extreme case involves a sex worker, the vulnerable group employees above are afforded equal protection under the Constitution. Employers need to be cautious and not cut corners to avoid a substantial compensation award.

Pleadings are the basis

"It only seems logical that if an illegal sex worker was protected under the LRA, a lawful refugee who was a nurse in South Africa helping the public would also receive similar protection. The Court could and would have done much more if it had been given the opportunity. It reminds the parties and legal practitioners that it is bound by the principle that pleadings contain the basis upon which the Court is to exercise its competency. Accordingly, it could not rule on the substantive fairness of the dismissal or make a finding on section 10 of the Public Services Act," explains Buchanan.

Leppan explains that the employer in this case could have mitigated its loss extensively. It should have been privy to judgments such as those described above. "If it had merely afforded the employee an opportunity to be heard it would probably have avoided a 12 months compensation award. Having a keen understanding of the basic underlying legal principles was the key to this matter."