Illegal Workers and the Zimbabwe Exemption Permit (ZEP) Discontinued
In December 2022, Cabinet announced that the Zimbabwe Exemption Permit (ZEP) would be discontinued. However, this came with a 12-month grace period – allowing those affected to properly and officially apply for the correct documents to remain in South Africa.
The ZEP came into force at the back-end of 2008, when millions of Zimbabweans migrated out of the country during the peak of their economic crises. The political situation was also highly volatile, forcing families to leave their homes and seek refuge elsewhere.
With the Cabinet’s decision however, as of the 30th of June 2023 the ZEP holders have to obtain alternative permits approaches, thus the fate of 178 000 permit holders and their families hangs in the balance.
Given the current court cases in play and numerous parties objecting to the above, it is our opinion that the above, in all likelihood, will be postponed yet again. However, as good corporate citizens and employers, one need to still ensure that all staff from our neighbouring countries are in fact legally allowed to work for you.
Legalities of employing foreigners
Section 38 of the Immigration Act provides that no person shall employ an illegal foreigner, a foreigner whose status does not authorise him or her to be employed by such person or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.
Furthermore, Section 38(2) of the Immigration Act states that a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs. Further, section 49(3) of the Immigration Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence.
The irony however is that The Labour Relations Act (“the LRA”) is applicable regardless of the legal status of the employee. There is a view amongst some employers that they can transgress the labour regulations when it comes to employing foreigners. It is important to note that foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the LRA and enjoy the same rights, benefits and recourse as a South African employee.
Section 213 of the LRA defines an ’employee’ as follows:
any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
any other person who in any manner assists in carrying on or conducting the business of an employer.
So where to from here?
Albeit that on the one hand, you have laws and decrees stating that one should, once the ZEP is discontinued and/or your foreign national employee’s work permit expired, need to terminate employment and send the individual home, and another stating that he or she has the same fair labour practice rights to that of South African citizens and you are not allowed to terminate… The process to be followed would be that of Section 188 of the Labour Relations Act 66 of 1995, whereby it recognises incapacity as a potential fair reason for a dismissal provided that a fair pre-dismissal procedure was followed.
1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove –
a. that the reason for the dismissal is a fair reason –
· related to the employee’s conduct or capacity
· based on the employer’s operational requirements; and
b. that the dismissal was affected in accordance with a fair procedure.
2. Any person considering whether or not the dismissal is a fair reason or whether or not the dismissal was affected in accordance with a fair procedure must take into account any relevant code of good practise issued in terms of this Act.
Thus in this instance, the incapacity manifest where an employer, employs a foreigner whose working permit lapses, and is an example of a general reason that can exist, which prevents an employee from performing his duties.
Procedural fairness, in this case, will include, for example, affording the employee time off (paid via leave or unpaid via unpaid leave) to apply for, renew or to obtain their working permit. If this effort by the employer to give the employee sufficient opportunity to remedy the existing defect bears no fruit, and there are no alternatives short of dismissal that can be considered, dismissal may be warranted.
An onus remains on employers to consider all possible alternatives and measures short of dismissal before terminating the employment relationship for reasons based on an incapacity and to ensure that they have given the employee all the available assistance, taking reasonability into account, e.g., but not limited to the following:
Assistance related to training, guidance, counselling and generally assisting the employee to reach a performance target and or required standard;
Time to improve performance to reach a performance target or required standard;
A fair and reasonable opportunity to improve their performance to reach a performance target or required standard;
Time off to heal to reach a performance target or required standard;
Time off to obtain documentation (i.e. a working permit or a driver’s license) to reach a performance target or required standard.
If these measures prove not to satisfy the employer’s required performance target or required standards, an employer also has the further onus to consider measures short of dismissal, e.g. offering the employee an alternative employment position to accommodate the employee – of which in these current circumstances, termination would be the only way forward.
Section 26(A) General Work Permit_Visit www.govline.co.za, for more requirements in applying for a valid work permit.
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