In our last article we used the following scenario:
You have been interviewing for a position within your company. It just so happens that 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.
In our previous article we focused on the importance of an employer verifying the legality of any foreign nationals in their employ. If you missed that article you are welcome to contact the newspaper or our offices to obtain a copy of it.
As a small reminder we reiterate that it is the employer’s duty to verify the legality of a foreign national in their employ.
Examples of this would be:
a) Checking the visa/permit: if X’s work permit/visa’s conditions stipulate that he may work at company A as an accountant, but you are company B, then this person may not be employed by you unless the conditions of the visa/permit are amended through the required and correct procedures.
If you employ this person, regardless of what the conditions of his visa/permit states, you may be held accountable and may face being prosecuted.
As soon as the foreigner who is in possession of this visa/permit is employed by you his visa/permit becomes null and void meaning the validity of the visa/permit is no longer valid and the foreign employee becomes illegal, which then makes you as the employer guilty of aiding and abetting an illegal foreigner.
b) In another scenario you might find is that the foreign candidate does not have a visa/permit at all. Should you employ this person you will be guilty of aiding and abetting an illegal foreigner.
Should you suspect that the visa/permit is false you may contact our immigration specialist or any other attorney who specialises in this field to do the necessary enquiries and verification process for you.
Please take note that ignorance is no excuse. The Department of Home Affairs will not accept excuses from employers who allege that they were not aware of the obligations by the employer as required in law. You have the responsibility to ensure that you are familiar with the immigration requirements.
Should an illegal foreigner be found on your premises conducting work, you may be charged formally in a court of law and may be liable for a fine not exceeding R10 000 or to imprisonment for a period not exceeding five years per offence.
For 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 Sandra Franke of Tuckers Inc.
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