Scenario: You have been interviewing for a position within your company. It just so happens that the best qualified person for the position is a foreign national. They are a bit vague when asked about their work permit, but you really want this person to work for you. This article deals with what the employer has to do to cover themselves.
Obligation by the Employer when employing foreign nationals
By law Employers are obliged to determine whether all employees are in possession of the correct legal documents which allow them to be employed regardless of whether they are foreign employees or South African citizens. Failing to adhere to these obligations can lead to heavy consequences for the Employer, including criminal charges.
To comply with South African immigration law, employers have two main responsibilities:
1. Do not employ foreign nationals who are illegally in the Republic; and
2. Do not employ a foreign national in any position or allow a foreigner to perform a work function not allowed by his or her visa or permit.
From a practical point of view, Employers must be aware of what the employee’s citizenship status is. In the case of temporary and permanent citizens, but particularly employees in possession of temporary visas, it will require asking for the visa or permit, and knowing what the documentation presented to you means. There are a variety of work visa’s each allowing for different types of employment.
Ignorance is not an excuse!
If it is found that a foreign national is present on any premises where business is conducted, it shall be presumed that the person was employed by the person who has control over such premises, unless the employer is able to provide proof to the contrary.
As said above, this means that the employer is obliged by law to determine whether existing and potential employee(s) who are foreign nationals are in possession of a valid visa and therefore allowed to be employed by the Employer on whose premises such person is found.
It is interesting that about 70% of permits that we verify are actually fake and therefore we urge employers to verify the validity of the documentation.
Should an employer be found guilty of employing a foreign national that does not have the correct permit/visa then the employer may be fined or imprisoned.
We shall go into more details about the penalties in our next article so watch this space.
As Tuckers has a specialized immigration department we have firsthand knowledge of the processes involved and have seen employers being taken to task for not complying with the law. We therefore strongly suggest that all employers that employ foreign nationals verify the permits which they are produced.
Should you require any further information on this topic you are welcome to contact our offices on 011 897 1900 or firstname.lastname@example.org.
Article contributed by Kenny Smith of Tuckers Attorneys.