Section 38(1) of the Immigration Act prohibits persons from employing foreigners whose status does not authorise their employment. The duty is on the Employer to ascertain whether the permit authorises the foreigner to work on your premises. As there are many different permits, it is important to read through the permit prior to employing a foreigner.
Failure to adhere to above act, may result in a prison sentence or a hefty fine.
It is important to remember that permits expire. Should you find yourself in the position whereby your employee’s permit has expired, Labour Direct recommends that you provide the employee with letter drafted by our offices. This letter will inform the employee that he/she has a specific time period to obtain the necessary documentation in order to work in South Africa.
Should at the end of this period, you have not received the required documentation, our offices can assist you with scheduling an incapacity hearing as the foreigner does not possess the required documentation to work in this country.
One must keep in mind that Section 23 of the Constitution provides that everyone has the right to fair labour practices. Therefore, we recommend that you do not merely cancel or void an employment contract with an illegal foreigner as a result as the fact that his/her permit has expired.
For professional assistance and any queries pertaining to the above, please contact Labour Direct.