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Yes an illegal migrant worker has rights too
Advocate Diamond Tapiwa Chadya of MIWUSA

Yes an illegal migrant worker has rights too

*Steve* (not his real name) is a Zimbabwean migrant worker whose asylum expired in 2009 but started working in Atlantis for a Chinese shop in Cape Town from 2009 until November 2016. Steve and other employees were not only working overtime, but they were under paid by their Chinese employer. Steve reported his employer anonymously to  the Department of Labour and reported the employer anonymously, whose Satellite office  further confirmed that the report would be anonymous.

The Department of Labour called the  employer and informed him of the impending inspection. The employer pleaded with Steve and asked him not to come to work the following day  because  the Labour Inspectors were coming. When he insisted  that he would pitch up for work, the employer  then asked Steve to mislead the Labour Inspector by saying that he gets paid R700 per week when he infact was  getting  R650.

When the Labour Inspector he  discovered  discrepancies at the workplace. Amongst many other things, they were working for very long hours without breaks,  had no off days, no paid leave, and as well as no formal verbal or written contracts as stipulated by the labour regulations. The Labour Inspector  also pointed  to the employer that the major worry would be Steve as he was the longest serving employee.

From Monday to Thursday Steve worked from 9am till 6pm and on Fridays from 830am till 7pm and on Saturdays he worked from 8:30 to 5pm and on Sundays he worked from 9am till 2pm.  When Steve went to Zimbabwe in 2011 and 2015 and he was not paid for the days that he did not work.

During the interview, Steve  told the  Labour Inspector, the whole story, of  how long he had worked there, how he was under paid, the Inspector said he would attend to that issue in two weeks’time, saying he  had only come in for the preliminary findings and recommendations and would come after two weeks and see if anything had been implemented.

The Inspector was escorted out of the premises by the employer, who came back angry and confronted Steve asking him why he had misled the employer and told him  about the working conditions.

Though the  Inspector never came back, he  made a few recommendations,some  of which were 45 hour working week for the employees, written contracts, all types of leave for the employees, wages to be received in envelopes, getting payslips as well as the employee register.

After that  the employer asked Steve to sign  a  six  months contract which ran from June to November 2016.

 The employer also  paid Steve R7 000, in installments of  R3 000, R2 000 and finally R2 000.

When the employer paid the last  R2 000, Steve was handed a  Notice of Termination of Employment which would not be  valid  if Steve produced a Work Permit or Asylum. Steve was the only migrant at the shop and he had never asked about a work permit , when he was hired.

Being illegal Steve could not  produce either of the documents and he was subsequently fired. He was not paid anything, neither did he get  a severance package for the seven years that h worked there.

 Steve then  approached the CCMA in Darling Street for help and he was told that the CCMA does not assist illegal immigrants.

NOW STEVE ASKS FOR LEGAL ADVICE.

Dear Steve,

MIWUSA is a migrant workers union in South Africa and is there to assist the migrant community in their day to day social, economic, as well as bread and butter issues. The matter at hand is common amongst the migrant community and it will go a long in giving advice to other migrants out there, and hopefully they will see the importance of joining a union, and in our case, MIWUSA.

The Issues: some of the issues in Steve’s case.

Does a migrant have labour rights?

Does the CCMA assist migrants?

Does the CCMA assist illegal migrants?

What benefits are an employee entitles to?

What happens if an employee is under paid?

Does Steve have a right of recourse against the Labour Inspector for breaching the confidentiality of an anonymous reporter?

Question: Do illegal migrant Workers have Labour Law Rights in South Africa?

Answer: The short answer is YES!

Steve, there is an assumption within the employers that illegal immigrants or employees without work permits have no legal rights in South Africa. Many employers have thus mistreated the illegally employed staff believing that such employees have no right of recourse from the labour law.

As a result illegal immigrants are prone to receiving low wages, and are deprived of employee benefits and are dismissed at will. The pedestal platform is the assumption that their so called ‘illegal employees’ are unable to use the law to take the employer to task.

However, it has recently been confirmed that this type of employer will be hovering under a dangerous misapprehension. In the case of Discovery Health Ltd vs CCMA & others (CLL Vol. 17 April 2008) a Mr Lanzetta, an immigrant, obtained a temporary residence permit and later a work permit to work for a business called MPCS. He later joined Discovery Health as a call centre agent before his work permit was renewed.

He claimed that Discovery had delayed giving him the documents he needed to renew his work permit which then expired. Discovery then terminated his employment on the basis that his continued employment would breach section 38(1) of the Immigration Act that is an effective veto on the employer to employ foreigners whose status does not authorize their employment.

Lanzetta then referred a dispute of unfair dismissal to the CCMA. Discovery then challenged the CCMA’s jurisdiction to consider the dispute on the grounds that his employment contract had been voided by his illegal status and that Lanzetta was therefore not an employee.

It is correct that the CCMA does not have jurisdiction over cases referred by people who are not employees. The CCMA rightfully held that, as long as an employment relationship existed it has jurisdiction to deal with the matter. The employer, dissatisfied with this jurisdictional finding, took it on review to the Labour Court.

The Labour Court found that:

  • Although Lanzetta’s employment status may have been illegal he was a legal resident in South Africa.
  • The employer contravened the Immigration Act because the wording of that act prohibited employers from employing certain foreigners rather than prohibiting the foreigners from accepting employment.
  • Section 23 of the Constitution provides that ‘everyone’ has the right to fair labour practice. There is no indication in the Constitution or in the Immigration Act that illegally employed foreigners are excluded from this constitutional right.
  • The Immigration Act’s prohibitions against the employment of so called ‘illegal’ foreigners does not void the employment contract of such a foreigner.
  • The definition of an employee as per the Labour Relations Act (LRA) does not require there to be an employment contract in order for a person to be an employee.
  • Section 23 of the Constitution does not require the existence of an employment contract.
  • International law and International Labour Organization’s Convention 87 supports this principle.
  • The definition of employee extend to people who work without the existence of a contract.
  • The Court therefore agreed with the CCMA that Lanzetta was an employee in terms of labour law and that the CCMA indeed had jurisdiction to consider his dispute.

It is paramount to note that this important court decision did not include a finding that Lanzetta had been unfairly dismissed. The Court was merely asked to decide whether the CCMA was entitled to hear Lanzetta’s matter. This ruling only allows the CCMA process to go underway.

The CCMA had within its discretion to decide whether it was unfair of the employer to dismiss Lanzetta due to the fact that his continued employment breached the provisions of the Immigration Act.

Nevertheless, employers need to take heed of the warnings that stem from the Lanzetta case.

That is, employers should not

  • Treat foreign or illegal employees any differently to other employees
  • In dealing with the problem of illegally employed staff members, terminate their employment without following legal procedure
  • Employers should obtain expert advice before taking any decisions or any action in this regard.

The next question will be dealt with in the next article. www.zimsinsa.com

For more information about MIWUSA and your rights as a migrant, contact the writer on the below mentioned details or drop your opinions, comments and views in the discussion box herein-under.

AvocateChadyaTapiwa Diamond is a Legal Specialist at MIWUSA Trade Union, a former student leader, a Father, a Legal Practitioner at L. I. Phooko Attorneys, a Lecturer, a Researcher, a Political Analyst-cum-Activist, and is a man after God’s heart like King David. He read law the University of Kwa-Zulu Natal. He concomitantly lives in the Natal Midlands and Centurion. He can be contacted on 27 (0)84 566 2756 or 27 (0)81 518 5880, Whatsapp or Email him at diamondtapiwa@gmail.com,or twitter @mantronieqscie or like Tapiwa Diamond Chadya on facebook. He writes in his  personal capacity. 

 

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