If, like Zambian Joel Sithole, you find yourself a job in SA but you don't have a valid work permit, does that mean employment laws will not protect you? That you are defenceless against workplace abuse and that local labour legislation will not apply?
Could an employer sack you without a good reason, and simply refuse to pay your salary, claiming your contract was as invalid as your papers? Or refuse to give you time off or paid sick leave? Would you be completely at the mercy of your bosses?
Some employers seem to think so. They quote section 38 (1) of the Immigration Act to prove their point: '….no person shall employ an illegal foreigner'. They claim this means any contract they might have had with an 'illegal foreigner' is invalid. It goes out of the window – along with all the protections the contract and the law would have provided.
Spray System Specialists Pty Ltd seems to share that view, certainly in relation to Sithole, an asylum seeker from Zambia. But Sithole saw things differently and because of his determination after Spray System sacked him, his dismissal eventually landed in the Labour Court.
There, Judge Portia Nkutha-Nkontwana grappled with those troubling questions about legal protection for undocumented foreigners, coming up with answers that will benefit other vulnerable workers as well.
Sithole worked for Spray System for about five years, first as a gardener and later as a 'general worker'. Then, one day, he asked for protective clothing. A reader might imagine protective clothing would be in abundant supply at a spray system company, virtually standard issue even. But in fact it was that very request which triggered his dismissal.
Suddenly, after Sithole's question, his employers hurried to take action though not to provide the protective clothing he asked for. Instead, though he had worked for them for five years, they now raised the question of the validity of his work permit.
They gave him three days to sort out his papers, but when he returned from an interview with officials of the Department of Home Affairs explaining that they wanted more information from the company, the bosses 'refused to assist (him) and told him never to come back'.
Sithole did not meekly accept those marching orders. The matter went to arbitration and then ended up with the Labour Court which has now delivered its decision – in his favour.
The judge considered the employers' claim that they sacked Sithole because he was an 'illegal foreigner'. She also read the view of the arbitration commissioner, going along with this line of argument, and holding that Sithole had made himself unemployable because he did not secure a work permit.
According to this line of reasoning, Sithole's 'contract' with Spray System was a nullity. As a result, he was not validly employed. He was thus not 'dismissed' either and the normal considerations at arbitration about whether the circumstances of his 'dismissal' were legal, would not therefore apply.
All of this is very odd indeed, given that a similar argument was put up in 2008 when insurance giant Discovery Health had to explain its sacking of German Lanzetta, an Argentinian staffer without the right papers. Discovery's approach was thoroughly trounced in a detailed, well-researched, landmark decision by Judge Andre van Niekerk.
You have to wonder about the advice given to Spray System by that company's lawyers, and about the arbitration commissioner's approach, both of which seem to have completely overlooked the Discovery judgment.
The judge in Sithole's matter quoted a few essential findings from the Discovery case. There was a sound policy reason to hold that section 38 (1) of the Immigration Act did not limit the right of an employee to fair labour practices. If that section invalidated an employment contract with a foreigner who did not have the right papers, it was easy to imagine the injustice that would result.
'An unscrupulous employer … might employ a foreign national and at the end of the payment period, simply refuse to pay … on the basis of the invalidity of the contract.' The employee would also then have no protection under the labour laws. The bosses could require working hours way beyond what the law permitted, for example, and it 'did not require much imagination to construct other examples of the abuse that might follow'.
In Sithole's case, the commissioner was 'overly fixated' with the work permit question and ignored the fact that Sithole was employed for about five years, the permit issue being raised for the first time only after he asked for protective clothing. The commissioner also ignored the company's refusal to help Sithole with the relevant documents that would have allowed him to get a work permit, simply telling him 'never to come back'.
Clearly, Spray System 'has been reaping the benefits of (Sithole's) employment without bothering about its legality for about five years'. And, since the commissioner 'misconceived' the true nature of the inquiry he should have conducted, his award had to be set aside.
Instead, the court dealt with the matter itself, finding that Sithole's dismissal was substantively and procedurally unfair.
What sanction should she impose on the company?
Sithole has since secured an asylum permit that allows him to be employed legally, but – understandably perhaps – he did not want his Spray System job back. Given his years of service and the 'manner in which he was dismissed', the judge ordered the company to pay him four months' salary within a month of her order.
Spray System must thus deposit R15 680 into Sithole's account by 24 December – a timely little present from a no-doubt reluctant Father Christmas.