Illegal workers do have rights
THE Labour Court has yet again confirmed that illegal workers do have rights and should not be subjected to unfair treatment by their employers. In a recent decision of Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others, the Labour Court considered whether the suspension of a foreign national (whose permit had expired) pending her disciplinary hearing could fall within the definition of an unfair labour practice as provided for by the Labour Relations Act, 1995.
A foreign national, hailing from the
Undocumented immigrants are in fact employees for the purposes of the Labour Relations Act
ee was told that she needed to obtain a valid work permit. The employee was unsuccessful in obtaining a work permit and it was then called to a disciplinary hearing. Southern Sun dismissed the employee on the basis that she was unable to lawfully render her services.
The employee approached the Commission for Conciliation, Mediation and Arbitration (CCMA), not to challenge her dismissal but to challenge her suspension (pending her disciplinary hearing). At the commencement of the arbitration proceedings, Southern Sun objected to the CCMA's jurisdiction on the grounds that the employee could not lawfully tender her services and therefore, she was not entitled to any remuneration during her suspension.
The Commissioner issued a ruling in which he found that the CCMA does have jurisdiction. In other words, the suspension of employees who do not have valid work permits can be brought within the confines of an unfair labour practice. The Commissioner also referred to previous decisions of the Labour Court where it was held that illegal foreigners (or undocumented immigrants) are in fact employees for the purposes of the Labour Relations Act. In essence, the Commissioner found that the employee was entitled to the protection offered to employees in terms of the act, even though she did not have a valid work permit.
Southern Sun, aggrieved by the CCMA’s Ruling approached the Labour Court to review and set aside the ruling. The Labour Court agreed with the Commissioner’s ruling in that there was no merit in the argument that because the employee could not lawfully tender her services (because she did not have a valid work permit), that Southern Sun therefore did not need to pay her.
Employers must take note that illegal workers do have rights and must be treated fairly. Employers are urged to seek legal advice before suspending or disciplining illegal workers.