South Africa has become the home of many inter-regional and inter-continental migrants seeking gainful employment due to its socio-economic prospects throughout Africa.
The fact is that many employers are unaware that they need to follow specific laws when employing and dismissing immigrants.
The following are some of the key factors to consider when hiring foreign nationals.
The Immigration Act prohibits employers from employing foreigners who are not authorised to work in South Africa. To work in South Africa, foreigners must possess a valid work visa. Many of these visas are tied to a specific employer and cannot be transferred.
Also, all employers must ensure that no illegal foreigners work for them. A fine or jail sentence may be imposed for employing a foreigner without the required visa and neglecting to make the necessary good faith effort to determine the foreign employee’s status. Therefore, employers are obliged to obtain the identity documents of all employees and ensure the validity of their visas.
Oftentimes, employers are faced with the dilemma of how to handle situations where they realize after hiring that employees do not have the required permits to work legally in South Africa. Either due to the employee’s expired work visa or the employee never had the required visa to start with.
An employer’s inclination may be to simply terminate the relationship because the relationship is unlawful due to the Immigration Act. Nevertheless, such a termination does not comply with the provisions of the Labour Relations Act which protects all employees, regardless of the employee’s legal status to work in South Africa.
Lawful termination of an employment relationship can only occur for a good reason and after following a proper process, as with any other employee. An employer is only permitted to terminate an employment relationship under three circumstances: misconduct, incapacity, and operational requirements.
An employer has to follow a specific process based on the ground for termination. Failure to possess a required visa may be regarded as an incapacity issue.
An employer must assist an employee who is in an illegal status in resolving the issue. This includes providing the employee with time off to engage with the DHA as well as completing and submitting necessary forms to assist the employee.
An employer must ensure that the employee is treated with dignity and respect throughout the entire process. The facts and circumstances of each individual are unique, so each situation must be dealt with accordingly based on its specific merits regardless of the general guidelines presented above.
To avoid falling foul of the law, employers should review their employees’ work permits regularly to make sure they are managing any risks appropriately.
An immigration lawyer for fintech companies in SA is necessary to navigate the ever-changing visa requirements of applicants. Find a reputable immigration lawyer and keep your foreign hires above board.