7 November 2011 by

Dismissing foreign employees: facts over assumptions

Employers cannot simply overlook the importance of verifying the residency status of foreign employees before dismissal on the grounds of illegal status. The Labour Appeal Court (the LAC) recently considered this issue in the matter of Dunwell Property Services CC v Morgan Sibande and Others (under case number JA7/10, as yet unreported, judgment handed down 15 September 2011)

In this case, the employer addressed a letter to an employee informing him of the termination of his services. As reasons for such termination the employer stated that:

  • the employee had been using a fraudulent identity document and therefore the Department of Home Affairs (DHA) had obtained an order for his deportation to Zimbabwe (his alleged home country); and
  • it was therefore illegal for the employer to continue with an employment contract as it could result to a fine against them.

The employee had previously applied to the High Court for an order to interdict the DHA from deporting him. Stegmann J had found that the immigration officer had reasonable grounds to suspect that the employee is an illegal immigrant and that he had not abused his powers and thus the application was dismissed.

In dismissing the employee from his service, the employer relied solely on information they received from the immigration official. In the process, they failed to take into consideration that Stegmann J's decision did not declare an employee as an illegal immigrant. They also overlooked the fact that the immigration officer had not complied with certain provisions of the Aliens Control Act 96 of 1991 (Aliens Control Act).

Section 9 (1) of the Aliens Control Act permits the immigration officer, where a person fails to satisfy him that he/she is a South African citizen or holds a valid permit, to declare him/her as a prohibited person. Section 10(5) allows the immigration officer to order a prohibited person to leave the country. In this case, the immigration officer had neither declared an employee as an illegal immigrant nor ordered him to leave the country in accordance with the provisions of the Aliens Control Act.

A letter from the Zimbabwean Consulate was also produced by the employee who confirmed that he is not a Zimbabwean citizen.

The LAC concluded that it was incumbent on the employer to conduct a proper investigation about the allegation that Sibande was an illegal immigrant. As a result, the LAC found Sibande's dismissal to be both procedurally and substantively unfair and awarded him 12 months compensation.

It appears that the employer acted in good faith upon information given by the immigration officer. The information, however, merely consisted of a series of allegations which had not been proved as facts. The employer could thus not rely on the unproven facts as reason to dismiss the employee.

The judgment again highlights the perils of dismissing employees based on "facts" arising from another forum. It is incumbent on an employer who had dismissed an employee to satisfy the CCMA or Court that (1) it had valid reason to dismiss the employee and (2) that the dismissal was preceded by a fair procedure. Employers ought to take care in testing the veracity of "facts" relied on to dismiss an employee.

Michael Yeates and Siphephelo Buthelezi

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