In a recent judgment of the Eastern Cape High Court, Mthatha, the dismissal of a foreign national employee was declared unlawful, despite the individual’s failure to have a valid work visa. The case underscores the complexities of managing foreign national employment in South Africa and reinforces the obligation on employers to comply with both immigration and labour laws.
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123RF.comIn Nyakudya v OR Tambo District Municipality, the court found that a foreign national employee had been unlawfully dismissed. The OR Tambo District Municipality: (i) failed to follow proper procedure in terminating the employee’s employment; and (ii) dismissed the employee without providing proper notice.
Expired visa
The employee, a Zimbabwean national, had worked for the municipality on a fixed-term basis since 2009 until his employment was terminated in November 2023. He had been employed in terms of a general work visa. However, the visa expired some years before his dismissal and was not subsequently renewed. Following its expiry, he did not possess any other valid documentation permitting his lawful employment in South Africa. Despite this, the municipality continued to employ him up until the date of his dismissal.
In the termination letter issued to the employee, the municipality’s justification for his dismissal was the expiry of his visa and his lack of legal status to continue working in South Africa. The employee challenged the fairness of his dismissal by launching an application before the court, contending that the dismissal was procedurally unfair and violated his right to fair labour practices.
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While acknowledging that employing a foreign national without a valid work visa is a contravention of section 38 of the Immigration Act, the court emphasised that this does not negate the employee’s constitutional right to fair labour practices or his statutory employment rights.
The court reaffirmed the principle established in Discovery Health v CCMA, that section 38 of the Immigration Act is not intended to limit the right to fair labour practices. Accordingly, foreign national employees should not be deprived of labour remedies merely because their contracts are invalid due to a lack of a valid work visa.
Ultimately, the court declared the employee’s dismissal unlawful and set it aside. Reinstatement was not ordered, as the court found it would not be practical in the circumstances. Compensation was also not granted as an alternative remedy. The municipality was ordered to pay the costs of the application.
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This case emphasises the obligation on employers to ensure that any dismissal is based on a legally recognised ground and effected only after following a fair procedure, regardless of the employee’s immigration status.
In addition, employers must carefully balance compliance with their obligations under the Immigration Act and applicable labour legislation. Significantly, the court reaffirmed that compliance with the Immigration Act does not override an employee’s right to fair labour practices.
Due diligence and assistance
It is prudent for employers to conduct regular due diligence and verification processes to ensure that all employees hold valid legal status to work in South Africa. Failure to comply with the Immigration Act may result in criminal sanctions, including fines or imprisonment of up to one year.
However, in doing so, employers must also ensure that foreign national employees are afforded the same procedural fairness as South African employees, which may include offering assistance where a work visa has expired or is nearing expiry.
