It is commonplace for foreign persons to be employed as domestic workers. There is no prohibition on such employment provided that the domestic worker has permanent residence or a valid work permit.
The difficulty with employing a foreign employee often arises where he/she either ceases to hold a valid work permit or alternatively has never held a valid work permit.
Where a domestic worker ceases to hold a valid work permit, the domestic worker can be dismissed for reasons of incapacity on the basis that to keep the employee employed would constitute a breach of the Immigration Act.[i]
Such employees are not entitled to any severance pay but should be dismissed on notice. They should also be given a right to be heard before they are dismissed (i.e. an opportunity to explain why their work permit has lapsed and when it will be resolved). If they do not timeously obtain a work permit, then notice of termination of employment should be given on the basis that it is an offence for the employer to continue to employ them.
Where the domestic worker never held a valid work permit, the situation is more complex.
It is a criminal offence in terms of the Immigration Act to employ someone without a valid work permit. Notwithstanding this, the Labour Court has held that where a person is employed in the absence of a work permit, that does not render the contract of employment invalid and any termination of the contract may be subject to the unfair dismissal dispensation contained in the Labour Relations Act.[ii]
The Labour Court has recently held that where a domestic worker is dismissed on the basis that he/she does not have a valid work-permit notwithstanding his/her long-term employment without such a permit, that dismissal may constitute an unfair dismissal.[iii]
Where an employer discovers that their domestic worker does not have a valid work-permit after years of service, the employer should not proceed to immediately dismiss the domestic worker. Rather, an incapacity process should be followed. The Employer should take all legal steps available to assist the domestic worker in obtaining the relevant permit and only after those steps have been exhausted resort to a dismissal on the basis of incapacity. This dismissal must be on notice.
Where an employer deliberately employed a person knowing full well at the time that they did not have a work permit, the situation is still more complicated. Any dismissal may very well be considered unfair by the CCMA for that reason. In such cases, it remains the best option to follow an incapacity process. An employer may also secure the departure of an employee through the conclusion of a written mutual termination agreement in exchange for the payment of a lump-sum ex gratia payment.
The above does not however prevent a domestic worker without a work
permit from being fairly dismissed for other reasons (i.e. misconduct,
incapacity or operational requirements). The dismissal however cannot be
related to the work permit issue.
[i] See section 38 and 49(3) of the Immigration Act and the Judgment of the Labour Court in First National Bank — A Division of First Rand Bank Ltd v Commission for Conciliation, Mediation & Arbitration & others (2017) 38 ILJ 2545 (LC)
[ii] See Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC)
[iii] See Sithole v Metal & Engineering Industries Bargaining Council & others (2018) 39 ILJ 472 (LC)
