Labour Law

illegal workers have the right not be unfairly dismissed

Nicolette Oberholzer, LabourNet

In the case of Discovery Health v CCMA & Others, the Labour Court decided that employees who are working illegally in South Africa are entitled to protection under the Labour Relations Act and that, in particular, they have the right not to be unfairly dismissed.

Mr Lanzetta, an immigrant, obtained a temporary residence permit and later a work permit to work for a business called MPCS. He later joined Discovery Health as a call centre agent before his work permit was renewed. He claimed that Discovery had delayed giving him the documents he needed to renew his work permit, which then expired. Discovery then terminated his employment on the grounds that his continued employment would breach section 38(1) of the Immigration Act that effectively prohibits persons from employing foreigners whose status does not authorise their employment. Lanzetta then referred a dispute of unfair dismissal to the CCMA.

Discovery Health argued that the CCMA did not have jurisdiction because only an ‘employee’ as defined by section 213 of the LRA may be entitled to protection by the Act. It argued that an ‘employee’ is a person who is party to a valid contract of employment. Since the contract of employment concluded with Lanzetta (a foreign national who was not in possession of a valid work permit) was tainted with illegality, Lanzetta’s contract was not valid and he was therefore not an ‘employee’ as defined in the LRA. Because he was not an ‘employee’, he could not claim the right not to be unfairly dismissed and the CCMA had no jurisdiction to arbitrate the dispute.

The CCMA ruled that Lanzetta was an ‘employee’. It decided that, as long as an employment relationship existed it did have jurisdiction to deal with the matter. The Commissioner stated that:

‘While it seems to me to be obvious that an employer cannot be required to continue the employment of an illegal foreigner whose specific work permit does not permit the employer to employ him, that does not mean that the protections afforded to employees by the Act cannot apply to such foreigners prior to decisions being made in that regard.’ Thus, the Commissioner was also stating that re-instatement cannot be one of the remedies available as it would result in the illegal employment being perpetuated.

On review, the Labour Court decided that the contract was valid. The Court found that Lazetta was legally resident in South Africa even though his employment may have been illegal. Section 49(1) of the Immigration Act, therefore, does not apply; the employer contravened the Immigration Act as the Act prohibits the employment of a foreign national, in violation of the Act rather than prohibiting foreigners from accepting employment; Section 23 of the Constitution provides that ‘everyone’ has the right to fair labour practice. There is no indication in the Constitution or in section 38(1) of the Immigration Act that illegally employed foreigners are excluded from this constitutional right. Neither does section 23 of the Constitution require the existence of an employment contract; if the effect of section 38(1) of the Immigration Act was to leave foreigners who were in illegal employment relationships without protection, then they would be vulnerable to unscrupulous employers; if employers were aware that foreign nationals who do not have work permits have recourse to the LRA and the BCEA, they would be less likely to breach section 38(1) of the Immigration Act by entering into contracts in these circumstances; the definition of an ‘employee’ extends to people who work without a contract (it does not require there to be an employment contract in order for a person to be an employee) and includes any person who ‘works’ and is ‘entitled to receive remuneration’; and the CCMA therefore did have jurisdiction to arbitrate the dispute.

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