5 days ago
What the Eastern Cape High Court ruling means for foreign employee terminations
A law firm looks at the law following a judgment saying employers are not entitled to fire foreign nationals on the spot if they are working without a valid visa.
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A foreign national employee must be provided with proper notice of their termination in line with the Basic Conditions of Employment Act (BCA). Failure to provide such notice may result in the termination being unlawful.
This is the warning of employment law experts at Cliffe Dekker Hofmeyr (CDH), following a recent Eastern Cape High Court judgment.
This was after an application by a research assistant and Zimbabwean national, Samuel Nyakudya.
He was granted a temporary residence permit allowing him to reside in South Africa and seek employment in the category of general work as provided for under the Immigration Act.
His employer, the OR Tambo District Municipality, however, terminated his employment contract due to allegations of its unlawfulness and irregularity.
Commenting on the case, CDH said that this area of termination has just become a lot clearer for employers after the recent ruling, stating that employing a foreign national without a work visa does not automatically grant an employer the right to summarily terminate the employment contract.
'This indicates a key warning for employers highlighting their responsibility to act lawfully and in accordance with the BCA,' CDH said.
The experts explained that a foreign national employee must be provided with proper notice of their termination in line with the BCA. 'Failure to provide such notice may result in the termination being unlawful. The dismissal may also be found to be unfair in the CCMA (Commission for Conciliation, Mediation and Arbitration).'
Nyakudya was employed on successive fixed-term contracts, but following the expiration of his last contract, the municipality allowed him to continue working without a new fixed-term contract.
Throughout his employment, Nyakudya was not consistently in possession of a work visa. In November 2023, the municipality notified him that his contract had expired on March 31, 2022, and that he had failed to provide a copy of his South African identity document, despite being requested to do so.
Consequently, the municipality claimed it had no choice but to terminate his employment immediately, citing the unlawful nature of his contract due to the expiration of his work visa.
While Nyakudya could have contested the fairness of his dismissal before the CCMA, he opted to challenge the termination in the High Court.
The court ultimately ruled that Nyakudya's employment contract termination was unlawful..
CDH said the Immigration Act outlines an employer's responsibilities regarding the employment of foreign nationals, specifically in Section 38, which prohibits the employment of illegal foreigners or those whose status does not authorise them to work.
It said the court also referenced Section 49(3) of the Immigration Act, which states that employing an illegal foreigner or a foreigner in violation of the Act constitutes a criminal offence.
The court confirmed that such employment is punishable by fines or imprisonment upon conviction.
Regarding the summary termination of Nyakudya's contract, the court considered Section 37(1) of the BCEA, which stipulates the notice period required for termination based on the duration of employment.
The court highlighted that the purpose of providing notice is to allow employees to prepare for a smooth transition.
'Nyakudya's lack of a work visa or South African identity document was a critical factor in the case. The court determined that employing a foreign national without a work visa is prohibited, and thus, the municipality's immediate termination of Nyakudya's contract was unlawful.
'This case serves as a significant reminder that employing a foreign national without a work visa does not automatically grant an employer the right to terminate the employment contract summarily,' CDH warned.
