Defining Fairness in Dismissals of Unauthorised Foreign Nationals

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Title Defining Fairness in Dismissals of Unauthorised Foreign Nationals
Creator Newaj, Kamalesh
Subject Unauthorised foreign nationals
unfair dismissal
dismissal on grounds of operational requirements
dismissal on grounds of misconduct
; Immigration Act
substantive fairness
procedural fairness
Description It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.
Publisher Faculty of Law, North-West University, South Africa
Date 2020-08-24
Type info:eu-repo/semantics/article
Peer reviewed article
Format application/pdf
Source Potchefstroom Electronic Law Journal; Vol 23 (2020); 1-25
Language eng
Rights Copyright (c) 2020 Kamalesh Newaj

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