Scenario: You have been interviewing for a position within your company. It just so happens the best-qualified person for the position is a foreign national.
They are a bit vague when asked about their work permit, but you really want this person to work for you. This article deals with what the employer has to do to cover themselves.
There are obligations by the employer when employing foreign nationals.
By law, employers are obliged to determine whether all employees are in possession of the correct legal documents which allow them to be employed regardless of whether they are foreign employees or South African citizens. Failing to adhere to these obligations can lead to consequences for the employer, including criminal charges.
To comply with South African immigration law, employers have two main responsibilities:
1. Do not employ foreign nationals who are illegally in the Republic;
2. Do not employ a foreign national in any position or allow a foreigner to perform a work function not allowed by his or her visa or permit.
From a practical point of view, employers must be aware of what the employee’s citizenship status is. In the case of temporary and permanent citizens, but particularly employees in possession of temporary visas, it will require asking for the visa or permit, and knowing what the documentation presented means. There is a variety of work visas, each allowing for different types of employment.
If it is found that a foreign national is present on any premises where business is conducted, it shall be presumed the person was employed by the person who has control over such premises, unless the employer is able to provide proof to the contrary.
As said above, this means the employer is obliged by law to determine whether the existing and potential employee(s), who are foreign nationals, are in possession of a valid visa and therefore allowed to be employed by the employer on whose premises such person is found.
It is interesting that about 70 per cent of permits we verify are actually fake and therefore we urge employers to verify the validity of the documentation.
• Penalty
Should an employer be found guilty of employing a foreign national who does not have the correct permit/visa, the employer may be fined or imprisoned.
We shall go into more detail about the penalties in our next article.
As Tuckers has a specialised immigration department, we have first-hand knowledge of the processes involved and have seen employers being taken to task for not complying with the law.
We strongly suggest that all employers who employ foreign nationals verify the permits provided to them.
Should you require any further information on this topic, you are welcome to contact our offices on 011 897 1900 or info@tuckers.co.za
Article contributed by Kenny Smith & Sandra Franke of Tuckers Attorneys.
ALSO READ:
Way forward due to medical negligence
Follow us:
For more #hyperlocal news at your fingertips, visit Benoni City Times, Springs Advertiser, Brakpan Herald, African Reporter and Kathorus Mail.
