DO ILLEGAL WORKERS HAVE LABOUR LAW RIGHTS IN SA?
There is a strong belief that someone who has entered a county illegally cannot be entitled to the protection of its laws. As a result of this reasoning some SA employers intentionally hire employees who have entered SA illegally, underpay them and mistreat them. They do so with the belief that the employees will either have no rights in law or, in the worst case, will be too scared to recourse to law for fear of being repatriated.
What rights, if any do ‘illegal’ workers have in South Africa?
All workers have labour rights in South Africa. Regardless of whether they are illegal or whether the work they are doing is illegal. This specifically was underlined in an early case where a prostitute had taken her unfair dismissal to the Labour Court after the CCMA had ruled there was no jurisdiction.
We have on many occasions raised the issue about the lacuna in the law whereby an employer would have to request an individual who had no work permit to leave the premises because of our immigration laws. These individual do in fact go to the CCMA and claim unfair dismissal and quite rightly they are entitled to damages if no proper process was followed.
Our constitution is absolutely clear in that it doesn’t discriminate against any type of employee.
7 November 2019