Department of Employment and Labour – Labour Inspections

• The Basic Conditions of Employment Act 75 of 1997 (BCEA), Chapter 10, addresses the issue of Monitoring and Enforcement Proceedings.
• It makes provision for the appointment of Labour Inspectors by the Department of Employment and Labour, and sets out the functions that they may perform, being:
  • To advise Employees and Employers of their rights and obligations as defined by employment law;
  • To conduct inspections (to ensure compliance with employment law); o To investigate complaints;
  • To ensure compliance by means of obtaining written undertakings or issuing compliance orders;
  • To refer disputes to the CCMA where they have found non-compliance with the Basic Conditions of Employment Act, National Minimum Wage Act and the Unemployment Insurance Act and the Unemployment Insurance Contributions Act.
• Inspectors are afforded powers of entry to a workplace, without notice or a warrant, to carry out an inspection, except for private residence, for which they need the consent of the owner or person occupying the home.
• They have powers to questions and inspect records or documents to which employment laws relate, make copies of such record, and question a person in such regard.
• A Labour Inspector must produce, on request, his/her signed certificate of appointment indicating his/her appointment as an Inspector and list the applicable legislation he/she is allowed to monitor and enforce.

4.1D BCEA 14A and 4.1E BCEA14B – Certificate of Appointment in terms of section 63 of the BCEA

• Employers are required to assist Labour Inspectors to perform their functions.
• If an Inspector believes that an employer does not comply with the employment legislation mentioned above, the Inspector may endeavour to obtain a WRITTEN UNDERTAKING from the employer to comply within the period allowed for in the undertaking. This includes an undertaking to pay an amount due and to provide proof of such payment to the Inspector by the date reflected on the undertaking.
• If an employer fails to comply with the undertaking, the Director General may request the CCMA to make the undertaking an arbitration award (which is capable of enforcement).

 4.1B BCEA9 – Written Undertaking

• If an Inspector believes that an employer does not comply with the employment legislation mentioned above, the Inspector may issue a COMPLIANCE ORDER. The employer must comply with this order, within the specified time frame, unless the employer refers a dispute, within the time stipulated in the order, to the CCMA (section 69(5) of the BCEA) challenging the order.
• If an employer fails to comply with the Compliance Order, the Director General may request the CCMA to make the order an arbitration award (which is capable of enforcement).

4.3 BCEA12 – Compliance Order

Exclusions

• A compliance order to pay an amount due may not be issued in the event of the employee earning above the BCEA Earning Threshold as published annually.
• Proceedings have been instituted at the CCMA or a court, to recover the amount;
• The amount has been due for longer than 36 months.

The following information is largely based on the International Labour Organisation (ILO) Convention 190: The Elimination of Violence and Harassment in the World of Work (21 June 2019) [click here] and the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2022).

[Insert a hyperlink to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace]

Gender discrimination

• The term “gender” refers to self-identification and the person’s gender role, irrespective of the sex of the person and manifests in the person’s behaviour and appearance. It therefore focuses on cultural and social characteristics, rather than the biological distinction between male and female.
• Gender-based violence refers to a type of discrimination where a person or group of a certain gender is treated differently or unfairly, simply because of the person’s gender. This is often the result of people’s ill-advised, pre-conceived ideas and stereotyping.
• It includes all forms of violence and harassment, for example: sexual harassment, gender-based violence, bullying, intimidation, threats, actual physical and psychological abuse, emotional abuse and sexual abuse. These acts often cause injury, death, physical or psychological harm, poor development, or deprivation. The acts often very badly affect people or result in the loss of benefits, opportunities or advantages in the workplace or elsewhere.
• It also includes intimate partner (husband / wife/ girlfriend / boyfriend) violence, family violence or domestic abuse which can happen face-to-face or via social media (internet) for example on Face Book, Twitter, WhatsApp. It can happen to anyone in the world of work and is an abuse of power.

The workplace

• The workplace refers to the place where people work. It may be a physical workplace (in the formal or informal economy), but could also include a virtual workplace, like electronic communications (for example, email or chat platforms), virtual meetings, social media, or any other on-line platforms where colleagues may interact or where a person could have a virtual presence.
• The workplace may also include employer provided transport, employer-linked events like conferences, meetings, business trips, or training sessions where colleagues are required to interact or likely to meet.

The Workplace

• The meaning of a “workplace” has become very broad and is no longer the traditional workplace as it was understood. It now refers to the almost any place where people work or conduct work-related activities. It may be a physical workplace (in the formal or informal economy), but could also include a virtual workplace, like electronic communications (for example, email or chat platforms), virtual meetings, social media, or any other on-line platforms, or at any other place, work-related event, or environment where colleagues may interact or where a person could have a virtual or physical presence.
• The workplace may also include employer provided transport, employer-linked events like conferences, social events where colleagues are partying, celebrating or entertaining clients or customers, meetings, business trips, or training and team-building sessions or anywhere where colleagues are required to interact or likely to meet.

Workplace harassment

• Harassment is defined as inappropriate and unwanted behaviour or mistreatment, aimed at gaining power and dominance over another, that violates the rights of a person, constitutes a barrier to equity in the workplace and/or creates a hostile working environment.
• A harasser generally has actual or perceived power over a victim and this power could arise from one or more sources such as the position that a harasser holds in an organisation, from personal or professional information that a harasser has about a victim, physical, psychological, or emotional power that a harasser has over a victim.
• Gender-based violence in the workplace could take the form of sexual harassment (based on grounds of sex, sexual orientation, or gender), bullying, threatening, spreading malicious rumours, ridiculing someone, exclusion, undermining a person, unjustified negative criticism and blocking a person from advancement in the organization, amongst various others humiliating forms of harassment.
• It may occur at any level amongst or between managers, supervisors, owners, directors, workers. Often it may happen between a manager and a worker or to a person with less power and say in the workplace or even between colleagues on the same level or position. GBV can also happen in the workplace of clients or in work involving dealings with the public, including during travel during business hours to and from work, in far off places with few people present or when work takes place during unusual hours, for example during a night shift, weekends or holidays.
• It may take the form of any unwanted sexual act, conduct, comment, advance, attention, proposal, coercion, threat, physical force, touching, embracing or even rape or sexual assault. It could be direct and visible, or it may be subtle and indirect. Either way it may be experienced as being offensive, unwelcome, intimidating and humiliating to the other person. It is often behind closed doors or in an environment where others cannot see or perceive what is going on.
• If it is not accepted by the targeted employee, it could result in that employee being victimised. Examples may include withholding of benefits (increases, bonuses, good performance scores or incentives), privileges (time-off), opportunities (promotion), or other negative and occupational detriments or consequences aimed at punishing the person (being unfairly disciplined or even dismissed).
• Quid pro Quo harassment is where a person coerces (threatens) someone else to give in to sexual advances by threatening or promising influence in return for that person’s employment opportunities, training, discipline, advancement, salary increases etc.
• Sexual favouritism is where a person in authority (owner, manager, supervisor) only advances or ‘looks after’ the interests of those who say ‘yes’ to that person’s sexual advances.

What are the responsibilities of an employer?

• Harassment is defined as a form of unfair discrimination in terms of Section 6 (3) of the Employment Equity Act No 55 of 1998, as amended (EEA). The Employment Equity Act places a duty on employers to take steps to eliminate (and prevent) any form of unfair discrimination at the workplace Contraventions of the Employment Equity Act must immediately be reported to the employer. Immediately, in the context of a claim of harassment, shall mean as soon as is reasonably possible, considering this being a sensitive issue and allegations being made against a person who is perceived to be or actually is in a position of authority and the complaint being made in the context of a fear of reprisals.
• Once the employer has been made aware of such an allegation, an investigation into the allegations must be conducted with due regard to the sensitivity and confidentiality of the situation and the parties involved. Once the facts have been established, the employer must address the situation in line with an employer’s disciplinary code and the procedure and guidelines contained in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace 2022.
• The EEA requires an employer, who hears of an allegation that one of its employees has done something that is against or contravenes that law (e.g., sexual harassment or any form of harassment), to consult all relevant parties and to take the necessary steps to eliminate the alleged conduct. If the employer fails to do so, and it is later proved that the employee did ‘break’ or contravene the EEA law, the CCMA or court may hold the employer liable for this in terms of Section 60 of the EEA (vicarious liability).
• To avoid this liability and to protect its employees, the employer must do all that is reasonably practicable to ensure that its employees do not act in contravention of the EEA. This means that, if a case is reported to an employer, that employer is expected to investigate and to take reasonable / fair /appropriate action against the employee who is accused of contravening the EEA and to create a safe environment for people of all genders.
• To encourage reporting of these incidents, it is advisable for the employer to create awareness about the EEA and the Code of Good Practice on The Prevention and Elimination of Harassment in the Workplace 2022, to identify and train responsible individuals to deal with the investigation and hearing of these matters in a skilful and sensitive manner.
• Please note that if the GBV / harassment is committed by someone who is not an employee, the employer is not liable in so far as liability is set out in the EEA.

What are the rights of an employee?

An employee has the right to:

• A safe workplace, free of harassment and unfair discrimination.
• Enjoy free and equal access to opportunities, benefits and privileges in the workplace.
• Report to management any incident of unfair discrimination, violence or harassment without recrimination or adverse consequence.
• Thorough investigation of a complaint.
• Appropriate and reasonable action to be taken against any perpetrator.
• An employee may also lodge a claim of alleged unfair discrimination with the CCMA in the event that the employee believes that his or rights in terms of the EEA have been violated.

Domestic gender-based violence

• Gender- based violence includes intimate/domestic partner abuse, which can take the form of physical abuse, emotional or psychological abuse or cyber bullying or abuse, like revenge porn. Domestic violence does not fall within the jurisdiction of the employment relationship and an employer will not have any right to interfere or intervene in such matters.
• The victims of domestic violence are encouraged to report such abuse to the authorities and obtain assistance and support to remove themselves and other vulnerable dependants from the situation.
• It is acknowledged that being exposed to this type of domestic situation will have a negative impact on an employee at work and may result in absenteeism and impact on productivity. It is advisable to bring the domestic situation to the attention of a trusted manager or HR professional at work to ensure an emphatic understanding of the circumstances. The company may also be in a position to refer the affected person to organizations providing counselling or through an Employee Assistance Programme and in this way, provide, assistance to victims of domestic abuse and prosecution of the abuser.

Organisations that can provide help

• If no investigation is conducted or the outcome of the workplace-related, gender-based violence investigation is not satisfactory, you may report the incident to the CCMA in terms of the provisions of the EEA, within six months from the date of the incident.
• Contact the CCMA at 0861 16 16 16 or download the APP #CCMAConnect to refer a dispute.
• Incidents of domestic gender-based violence must be reported to the relevant authority, e.g., the SA Police Service, the Equality Court, and the Human Rights Commission.
• The Department of Justice provides details of organisations that may assist victims of GBV. These include:
  • The GBV Command Centre: 0800 428 428
  • The STOP Gender Violence Helpline: 0800 150 150
  • The TEARS Foundation: Free USSD helpline *134*7355#
  • People Opposed to Women Abuse(POWA): 011-642 4345
  • SAPS Emergency number: 10111

Different forms of non-standard employment contracts and when they are used

Non-Standard Employment
Sections 198 A-D of the Labour Relations Act 66 of 1995 (LRA) provides specific protection to vulnerable employees employed in non-standard employment contracts who earn below the earnings threshold set from time to time in terms of section 6(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA). Non-standard employment within this context includes employees employed by a temporary employment services (TES), employees employed on fixed-term contracts and part-time employees.

Employees employed by a temporary employment services (TES) organisation – section 198A of the LRA
Section 198 of the LRA states that a TES refers to any person who procures for or provides to a client other persons who perform work for the client and who are remunerated by the TES.
Section 198A is specific to TES (also known as labour brokers) employees who earn below the BCEA threshold.

The following protections apply to such employees:
1. The client and the TES employer are jointly and severally liable if the TES, in respect of any of its employees, contravenes a collective agreement concluded in a bargaining council, a binding arbitration award that regulates terms and conditions of employment, the BCEA, or a sectoral determination. In terms of the BCEA, as amended in 2018 and the National Minimum Wage Act, 2018, non-compliance with payment of the national minimum wage will be included here.

2. If an employer uses the services of an employee of a TES for a period in excess of three months, other than as a substitute for a temporarily absent employee (for example, where an employee is on maternity leave for a period that exceeds three months) or in certain categories of work specifically determined in a bargaining council collective agreement, sectoral determination or Ministerial determination, the employer, as client of the TES, will run the risk of that employee being deemed to be employed by it on an indefinite basis or for a period of time linked to a fixed-term contract that meets the requirements of section 198B of the LRA (see below). This is known as the “deeming provision”.

3. An employee who is deemed to be an employee of the client must on the whole be treated not less favourably than an employee of the client performing the same or similar work, unless there are justifiable reasons for different treatment. For example, long service.

Employees employed on fixed-term employment contracts – section 198B of the LRA
A fixed-term contract of employment is defined as one which terminates on the occurrence of a specific event, or on the completion of a specific task or project, or on a fixed date (other than a retirement date).

An offer to employ an employee on a fixed-term contract, or to renew or to extend a fixed-term contract must be in writing. The offer must also state the nature of the work and justifiable reasons for fixing the term of the contract. If it becomes necessary, the employer will bear the onus of proving that there was a justifiable reason for fixing the term, and that the term was agreed.

This section does not apply to:
• An employee who earns above the BCEA threshold;
• an employer that employs less than 10 people, or to an employer who employs less than 50 people if the business has been in operation for less than two years (unless the employer conducts more than one business, or the business was formed by the division or dissolution of a previously existing business); and
• an employee employed on a fixed-term contract that is allowed in terms of any law, sectoral determination or collective agreement.

Justifiable reasons for fixing the term of a contract:
Where section 198B is applicable, the fixed-term contract may not exceed three months (including any renewals of the contract) if the nature of the work is of a limited or defined duration, or if the employer cannot demonstrate any other justifiable reason for fixing the term of the contract.

If the contract exceeds three months and the nature of the work is found not to be of a limited or definite duration, or the employer is not able to provide a justifiable reason for fixing the term of the contract, the employee will be deemed to be indefinitely employed.

Justifiable reasons for fixing the term of a contract include:
• the replacement of a temporarily absent worker;
• a temporary increase in the volume of work (not expected to last longer than 12 months);
• a student or recent graduate employed for the purpose of training or to gain work experience;
• limited or defined duration projects;
• employment of a non-citizen who has been granted a work permit for a defined period;
• seasonal work;
• employment in an official public works scheme or similar job creation scheme;
• work funded by an external source for a limited period; and

• post-retirement contracts.

The list is not exhaustive, but any other reason for fixing the term must be justified. Affordability is NOT a justifiable reason, and nor is probation.

An employee must be treated no less favourably
An employee earning below the BCEA threshold and employed on a fixed-term contract exceeding three months must be treated no less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for such different treatment.

Justifiable reasons for treating employees differently, include:
• seniority, experience or length of service;
• merit;
• the quality or quantity of work performed; or
• any other criteria of a similar nature.

An employer must provide an employee employed on a fixed-term contract and an employee employed on a permanent basis with equal access to opportunities to apply for vacancies.

Limited entitlement to severance pay
Where an employee is employed on a fixed-term contract for a limited-duration project which exceeds two years, the employee must be paid severance pay of one week’s pay per completed year of service, on the termination of the contract, unless the employer offers or procures employment for the employee, on the same or similar terms, which commences on the expiry of the contract.

Employees employed on part-time employment contracts – section 198C of the LRA
A part-time employee is an employee who is remunerated wholly or partly by reference to the actual time the employee works and who works fewer hours than a comparable full-time employee.

This section does not apply to:
• An employee who earns above the BCEA threshold.
• An employer that employs less than 10 people, or to an employer who employs less than 50 people if the business has been in operation for less than two years (unless the employer conducts more than one business, or the business was formed by the division or dissolution of a previously existing business).
• An employee who works for fewer than 24 hours per month for an employer.
• During the first three months of continuous employment with an employer.

An employee must be treated no less favourably
The part-time employee must be treated on the whole not less favourably than a comparable full-time employee doing the same or similar work, taking into account the working hours of the part-time employee, unless there is a reason for different treatment.

The part-time employee must be given the same access to training and skills development as a comparable full-time employee.

The part-time employee must be given the same access as full-time employees to opportunities to apply for vacancies.

General Provisions
Section 198D of the LRA sets out the general provisions relating to non-standard employment. It deals with “justifiable reasons” for different treatment of fixed-term and part-time employees, compared to permanent full-time employees.

Section 198D also sets out the dispute resolution process that may be followed should a dispute arise from the interpretation or application of sections 198 A-C of the LRA. Such a dispute may be referred for conciliation to the CCMA or a bargaining council with jurisdiction within six months after the act or omission occurred.

Justifiable reasons for different treatment
In essence it is regarded as justifiable to treat a fixed-term or part-time employee differently on the grounds of:

• seniority, experience or length of service;
• merit (i.e. performance); the quality or quantity of work performed; or
• other criteria of a similar nature provided it does not constitute unfair discrimination in terms of the Employment Equity Act.

Doc 1.2L – CCMA info sheet – Section 198A-D of the LRA (Non-standard employment)

A dispute concerning the interpretation or application of section 198A, B and C may be referred to the CCMA or a bargaining council for conciliation and arbitration. A dispute, other than a dismissal dispute in terms of s198A(4) , must be referred within 6 months of the act or omission.

EXCLUSIONS FROM THE BASIC CONDITIONS OF EMPLOYMENT ACT 75 of 1997 (BCEA)

Certain categories of employees are entirely excluded from the BCEA while other categories of employees are excluded from some sections of the Act.

Complete exclusion from the application of the Act

The entire BCEA does not apply to the following persons:

• Independent contractors (Definition of employee in section 1).
• Members of the State Security Agency (section 3(1) (a)).
• Unpaid volunteers working for an organisation serving a charitable purpose (section 3(1) (b)).

The Minister may, on the advice of the National Minimum Wage Commission and by publishing a notice, deem any category of persons to be employees for the purposes of the whole or any part of the BCEA, any other employment law (excluding the Unemployment Insurance Act) or any sectoral determination (section 83(1)).

Exclusion from the application of the entire Act except Sections 9A and Chapter 10
• People who earn less than the BCEA threshold and who are classified as “workers” – “any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind” – who work for less than four hours on any day must be paid for four hours work on that day. (section 9A)

• Chapter 10 of the BCEA concerns monitoring, enforcement and legal proceedings. All reference to “employees” in this chapter should be read to include “workers”. This means that workers should also be subject to the protection offered by labour inspectors who serve to promote, monitor and enforce compliance by employers with employment law. (section 62A)

• A worker has the right to refer a dispute to the CCMA concerning the failure to pay any amount owing to that worker in terms of the BCEA, the National Minimum Wage Act 9 of 2018, a contract of employment, a sectoral determination or a collective agreement.

The Minister may, on the advice of the National Minimum Wage Commission1 and by publishing a notice, deem any category of persons to be employees for the purposes of the whole or any part of the BCEA, any other employment law (excluding the Unemployment Insurance Act) or any sectoral determination (section 83(1)).

Exclusion from the application of the entire Act except for Section 41, section 62A and chapters 3, 4, 5 and 6
● Persons employed on vessels at sea in respect of which the Merchant Shipping Act applies are excluded from the application of the BCEA except for section 41, section 62A and chapters 3, 4, 5 and 6 of the BCEA.

The following sections are not excluded:
● Section 41 provides for the entitlement to severance pay where an employee’s services have been terminated based on operational requirements (retrenchment).
● Section 62A: Chapter 10 of the BCEA concerns monitoring, enforcement and legal proceedings. All reference to “employees” in this chapter should be read to include “workers”. This means that workers should also be subject to the protection offered by labour inspectors who serve to promote, monitor and enforce compliance by employers with employment law.
● Chapter 3 regulates an employee’s entitlement to leave, including, but not limited to, annual leave, sick leave, maternity leave, parental leave, adoption leave, commissioning parental leave, family responsibility leave, etc.
● Chapter 4 sets out the legal requirements concerning particulars of employment and remuneration.
● Chapter 5 regulates an employee’s rights when his or her services are terminated, or when he or she wishes to resign.
● Chapter 6 sets out the law governing the prohibition of the employment of children and forced labour.
● However, in terms of a sectoral determination covering such persons, the whole or part of the BCEA may be made applicable (section 3(3)).

Exclusion from Chapter Two – Regulation of Working Time
Chapter Two (sections 6, 9, 10, 11, 12, 14, 15, 17(2) and 18(3)) regulates all aspects of working hours, including ordinary hours of work, overtime, averaging hours of work, meal intervals, rest periods, pay for work on Sundays and night work. With the exception of section 7 (regulation of working time), Chapter Two does not apply to:

● Senior managerial employees;
● Employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work;
● Employees who work less than 24 hours a month for an employer.

Sections 9, 10(1), 14(1), 15(10). 17(2) and 18(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to have made provision and which cannot be performed by employees during their ordinary hours of work (effectively work that needs to be done in sudden emergency situations).

Sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) do not apply to employees earning more than the statutory minimum established in terms of section 6(3). This was established at R241, 110.59 with effect from 1 March 2023.

Note that section 7 applies to all the above-mentioned employees who are otherwise excluded from the application of Chapter Two. Section 7 sets out what employers must take into account when regulating working time i.e. the requirements of occupational health and safety legislation, the health and safety of the individual employees, the Code of Good Practice on the Regulation of Working Time, and the family responsibilities of employees.

Exclusion from Chapter Three – Leave
Chapter Three does not apply to:
● An employee who works fewer than 24 hours per month for an employer,
● Unless agreed otherwise, leave granted in excess of that provided for in the BCEA.

In addition, section 27 of Chapter Three, regulating Family Responsibility leave, does not apply to the following employees:
● Employees who have worked for an employer for less than four months.
● Employees who work for less than four days a week for that employer.

Exclusion of Chapter Four – Particulars of Employment and Remuneration
Chapter Four regulates the information that an employer is required to provide to employees. The entire Chapter Four (sections 29 to 35) does not apply to:
● Employees who work less than 24 hours per month for an employer.

Section 29 requires an employer to provide to each employee at the commencement of employment various particulars of employment in writing. These particulars are set out in section 29(1) and include the full name and address of the employer, the name and occupation of the employee, description of the work, the place of work, hours of work, remuneration, overtime, deduction, leave, notice periods, etc.

See Doc 1.3E Checklist – compulsory employment details 

See Doc 1.3G CCMA Info Sheet – written particulars of employment 

The following written particulars of employment do not have to be provided in the case of employers who employ fewer than five employees-

● Section 29(1) (n) – a description of any council or sectoral determination that covers the employer’s business;
● Section 29(1) (o) – any period of employment with a previous employer that counts towards that employee’s employment;
● Section 29(1) (p) – a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

Although domestic workers are no longer excluded from the application of section 29, it will be unlikely that an employer will employ five or more domestic workers. Therefore, subsections (1) (n), (o) and (p) will rarely apply to domestic workers.

Exclusion from Chapter Five of the Act – Termination of Employment

Chapter Five (sections 36 to 42) deals with the termination of employment and does not apply to employees working less than 24 hours in a month for an employer (section 36).
Such employees are therefore excluded from the following rights/protections:
● Statutory notice periods of termination of employment provided in section 37.
● Payment instead of notice (section 38).
● The entitlement to temporarily remain in accommodation provided by the employer after termination of employment (section 39).
● Entitlement to payment by the employer for any paid time off or any accrued leave pay (section 40).
● Entitlement to severance pay (section 41).
● Entitlement to a certificate of service (section 42).

The employment of foreign nationals

• Employment of foreign nationals is governed by the Immigrations Act, 10 of 2002, Immigration Regulations issued on 22 May 2014 and the Employment Services Act, 4 of 2014.
  Immigrations Act 2002
  Immigration Regulations, 2014
  Employment Services Act 2014

• An employer may not employ a foreign national whose status does not allow him/her to be employed, or on terms and conditions, or in a capacity, that differs from those associated with his/her status.
• The employer bears the obligation to determine the status or citizenship of the person. In terms of legislation, the employer will commit an offence if a foreigner is employed in contravention of the Immigration Act, which crime is punishable with a fine or imprisonment.
• The employer must ensure that a skills plan is drafted and implemented to ensure the skills are transferred from the foreigner to a SA citizen or permanent resident.
• The Employment Services Act, 2014, in section 8(4) determines that a foreign national who is employed without the required work visa can still enforce any claim he/she may have in terms of the law or his/her employment relationship, against his employer.
• The foreign national, irrespective of his/her legal status, is therefore afforded the protection of the South African labour legislation, through the Department of Employment and Labour and the various dispute resolution forums like the CCMA, Bargaining Councils, the Labour Court and Labour Appeal Court. This is based on the principle that even if the contract of employment is invalid, the foreign “worker/employee” (which encompass a broader interpretation not necessarily connected to the validity of the employment contract) will satisfy the description of an “employee” as defined in statutes, and thus worthy of its protection.
• The Immigration Act makes provision for various types of work visas:
  • General Work Visa is valid for up to 5 years and may only be applied for by a foreign national who is already in possession of a job offer in SA. There is, however, an obligation on the employer to demonstrate that the position in question was offered to citizens of SA and despite its diligent search the skills and qualifications could not be found.
  • A Critical Skills Visa can be issued for up to 3 years with the possibility of an extension. The foreign national who applies for the visa does not have to be in possession of a job offer and may stay in SA for up to 1 year to obtain employment. He/she must register with the specialised SA Professional group within which his exceptional skill is required or utilised.
  • An Intra Company Transfer Visa may be issued to a foreigner to work in the SA operation of his/her company for a period up to 4 years and this work visa is not renewable. This is
    deemed as a secondment and the foreign national will not be employed in SA.
  • A Corporate Visa may be issued to a company enabling it to employ a number of foreign nationals who hold certain skills for a specific period of time. This visa may be issued on recommendation of the Department of Trade and Industry.

• The following visas do not allow employment in SA:
  •  Relative visas
  • Spousal/life partner visas in the absence of a specific accommodation
  •  A retired person visas
  • A medical treatment visas
  • Volunteer visas for all foreign nationals

• The Immigration Act provides for foreign nationals to enjoy all the right, privileges, duties and obligation of a SA citizen, with the exclusion of specific rights, privileges and duties explicitly ascribed to SA citizen, e.g., the Employment Equity Act’s definition of a designated group meaning black people, women and people with disabilities who are citizens of the Republic of SA by birth or decent or became citizens by naturalization before 27 April 1994 or after 26 April 1994 and who would have been entitled to acquire citizenship by naturalisation prior to that date, but who were precluded by apartheid policies.