Il­le­gal work­ers do have rights

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - SIOB­HAN VILJOEN

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.

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