Facts

A group of Zimbabweans (applicants) were employed as general workers at Roots Butchery (Roots). The applicants were all asylum holders with no valid work permits. A blitz inspection conducted at Roots by the South African Police Service, the Johannesburg Metropolitan Police Department, officials from the Department of Home Affairs and inspectors from the Department of Employment and Labour, which resulted in the arrest of various managers employed at Roots. Subsequent to this, all arrested employees paid a fine and were left with a criminal record.

Following the inspection, Roots consulted the applicants and gave them a month to apply for their respective work permits. Importantly, the applicants had known from 2022 that their asylum was not for an indefinite period; however, they had failed to apply for work permits.

After this period lapsed, the applicants still did not have any work permits, alleging that long queues led to them being unable to apply for the permits.

Roots called the applicants to a disciplinary hearing in relation to the following allegation of misconduct: “illegal incapacity in that you are unable to render your services due to failure to submit legal documentation to work in the country as per requirement”. The applicants were found guilty of this allegation and were subsequently dismissed.

Applicable law

• Unfair dismissals are governed by the Labour Relations Act 66 of 1995 (LRA).
• The status of foreigners within South Africa’s borders is regulated by the Immigration Act 13 of 2002 (Immigration Act).

Application of the law to the facts

During the CCMA arbitration, the applicants argued that their dismissal was substantively unfair as they were given inadequate time to secure work permits, claiming that they should have been retrenched instead, which would have enabled them to receive severance packages.

The commissioner noted that the concept “illegal incapacity”, while not being defined in the LRA, involves an employee being unable to perform their duties due to legal impediments. It was found that the applicants were a prime example of this concept in that they lacked valid work permits, making their continued employment unlawful.

In relation to whether the applicants ought to have been retrenched, the commissioner clarified that the term “operational incapacity” differed from a retrenchment, which stems from a business’ operational requirements. In that regard, the commissioner found that there was no legal basis for the applicants’ retrenchment. Instead, he found that employing a foreign national who lacks the proper authorisation to work in South Africa is unlawful. In these circumstances, the commissioner confirmed that an employer is entitled, and in fact obligated, to terminate an employee’s employment.

Accordingly, the applicants’ dismissals were found to be substantively fair.

Key takeaways

• As the applicants did not challenge the procedural fairness of their dismissals, the commissioner did not consider whether it was fair that the applicants were dismissed for misconduct as opposed to incapacity.
• Generally, the lack of a valid work visa/permit requires an employer to embark on an incapacity process based on their being no lawful basis to continue employing the foreign national employee. This is having regard to the prohibition in the Immigration Act against employing foreign nationals without a valid work visa/permit.
• It still, however, remains open to an employer to dismiss a foreign national employee for misconduct where they intentionally mislead the employer in relation to their status in South Africa (e.g. where the employee concerned knowingly submits a fraudulent work visa/permit).
• Employers are encouraged to verify the status of foreign national employees before employment, as well as on a regular basis once their employment commences. This is to guard against criminal sanctions being issued against them, or their employees, for contravening the Immigration Act.

Employers should:

• keep copies of foreign national employees’ authorisations to work in South Africa; and
• take immediate steps to address a foreign national employee’s employment where their right to work lapses or expires.