Undocumented foreign nationals working in SA: What employers need to know

The Department of Employment and Labour has recently uncovered establishments in parts of South Africa that have employed undocumented foreigners.

The inspections by the department saw at least 80 people working in the hospitality industry getting arrested for violating the provisions of the Immigration Act 13 of 2002 (Immigration Act).

The act regulates the movement and residence of foreign nationals within the country. One of its provisions is authorities can enter workplaces to inspect employment records and ensure compliance with the Act.

Consequences for undocumented foreign national

Taryn York, Employment Law expert at Cliffe Dekker Hofmeyr (CDH) says the individuals arrested were found without the necessary valid documentation. “These arrests have included restaurant owners, managers, human resource practitioners and foreign national employees themselves.”

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Immigration Act for employers

York says Section 38 of the Act expects employers to ensure they will not employ any undocumented foreign national; a foreigner whose status does not authorise them to be employed by such industry; or a foreigner on terms, conditions or in a capacity different from their status.

“In complying with their obligations, employers are required to make a good faith effort to ensure that no foreigner is illegally employed or to determine the status of any foreigner who is employed.”

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Consequences for employers

It is advised that employers need to be aware of how to manage the situation if they suspect an undocumented foreign national has been given employment. By doing this, employers will be avoiding claims in the Commission for Conciliation, Mediation and Arbitration.

Some of the consequences for employing undocumented foreign nationals include fines, repeated offenders could be prohibited from employing any foreign nationals, loss of business reputation, and compliance issues.

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What employers can do

York advises employers to audit the employment status of foreigners to avoid being caught on the wrong side of immigration, employment, and criminal laws.

“The audits are wide-ranging and should include verification of the validity of work visas or permits to understand the employment restrictions that apply to the person.”

Any inspection by authorities should be done in accordance with the laws, which regulate the right of entry to a workplace as well as the ability to search, inspect, seize documents and arrest people suspected of having committed a criminal offence.

Unlawful inspections

She adds that the country has seen inspections by different political parties resulting in conflict because they were unlawful.

York emphasises that inspections by different departments must be welcomed by law-abiding employees to ensure compliance with the prevailing immigration, employment and occupational health and safety laws. Employers must always be prepared for this.

“The Minister of Employment and Labour has also recently indicated that over the Medium-Term Expenditure Framework period, the Inspectorate Capacity will be increased from 2000 to 20 000 inspectors.”

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