Facts

This was a review of an arbitration award delivered by the Commission for Conciliation, Mediation and Arbitration (CCMA) where the commissioner found the dismissal of the applicant (Muyulenu) to be both procedurally and substantively fair.

Muyulenu is a citizen of the Democratic Republic of Congo but had refugee status in South Africa. He had commenced employment with the first respondent (Lufthansa) in August 2009.

Muyulenu’s refugee status expired on 5 July 2023 and was not renewed. As a result, Lufthansa called Muyulenu to a hearing, following which he was dismissed for incapacity. However, he was afforded an opportunity to “reapply for any available positions once he is in possession of a document that allows him to take up employment within South Africa”.

Applicable law

• Unfair dismissals are governed by the Labour Relations Act 66 of 1995.
• The status of foreigners in South Africa’s borders is governed by the Immigration Act 13 of 2002 (Immigration Act) and, in this particular instance, the Refugees Act 130 of 1998 too.

Application of the law to the facts

Insofar as the substantive fairness of the dismissal was concerned, the Labour Court noted that the central issue was whether Lufthansa could continue to lawfully employ Muyulenu after his refugee status expired. The court found that Muyulenu’s continued employment would have been unlawful under section 38(1) of the Immigration Act. This section prohibits employers from employing illegal foreigners, foreigners whose status does not authorise them to be employed in South Africa, and foreigners on any terms and conditions not provided contrary to those provided on their status. The court upheld the dismissal as it related to Muyulenu’s status as an illegal foreigner.

Despite these findings, the court held that the commissioner’s conduct during the arbitration was unreasonable in relation to the following:

• she intervened persistently during Muyulenu’s cross-examination of Lufthansa’s witness, as well as intervening in Lufthansa’s examination of Muyulenu;
• she informed Muyulenu that French was not a critical skill and suggested that every South African could speak French and argued with Muyulenu about the fact that French was not stated on his visa as a critical skill;
• she told Muyulenu that he could not tell her to ask immigration any questions as it was not her job; and
• during a long debate about the status and standing of a letter that Muyulenu wished to rely on, the commissioner stated “well, maybe you shouldn’t be so flippant with me, because you need to prove your case”.

As a result of its findings on the commissioner’s conduct (as opposed to the substantive issues), the Labour Court went on to find gross irregularity in the conduct of the arbitration proceedings and that Muyulenu was denied a fair hearing by the CCMA.

This then resulted in the Labour Court ordering that the award be reviewed and set aside and substituted by an award that Muyulenu’s dismissal was both substantively and procedurally unfair.

Key takeaways

• While foreigners who are granted refugee status have an automatic right to work in South Africa, refugee permits are granted for four-year periods and are required to be renewed timeously.
• While the Labour Court did not rule on the issue, there is no legal provision that allows an individual to continue to work once their refugee permit expires and is not renewed.
• This judgment serves as a reminder to employees and employers alike of the prohibition against employing foreign nationals without a valid work visa/permit or on an expired permit.