Illegal immigrants have equal rights – ruling

South African employers have the same duty of care to illegal foreign employees as they do to South African citizens, according to a precedent-setting Labour Court judgment, which ruled that illegal immigrants have the same labour rights as other workers. The Johannesburg Labour Court ruled last week that an Argentinian dismissed by medical insurance company Discovery Health when his work permit expired had the same labour rights as a South African citizen. Herman Lanzetta was employed by Discovery while he had a work permit. While it expired, the company dismissed him because the Immigration Act prohibits the employment of an illegal immigrant. However, Judge Andre van Niekerk ruled that Lanzetta was still an employee for the purposes of the Labour Relations Act.

The judgment means all employment contracts are valid, irrespective of whether an employee is an illegal immigrant. It means employers cannot abuse foreigners, whether or not they are in SA legally. Bishop Paul Verryn, of the Methodist Church in Johannesburg, said refugees housed in his church were frequently engaged to work under verbal agreements. However, at the end of their working week, they were either paid a lower amount than agreed on, not paid at all, or turned over to the police by their employers. Business Day reports that the court’s action follows a change of heart last month by the Commission for Conciliation, Mediation and Arbitration, which had previously said it would not consider cases involving the workplace rights of foreign nationals without proper documentation.