This case raised the question of whether a foreign national who works without a work permit issued under the Immigration Act (IA) is an 'employee' as defined by the Labour Relations Act (LRA). The Court discussed whether the contract of employment between the Applicant and the Third Respondent was invalidated by s38(1) of the LRA, which prohibits employment of a foreigner without a valid work permit. The court held that the LRA should be interpreted in a manner that does not limit fundamental rights, and that because the right to fair labour practices was a fundamental human right, the provision did not render the employment contract unenforceable. This interpretation was supported by policy reasons, i.e. to avoid exploitation of illegal foreigners by ‘unscrupulous employers’. The Court also held that, even if the contract was invalid, the definition of 'employee' in the LRA was not necessarily rooted in a contract of employment.
Rights of refugees; right to work; foreign nationals without work permits; right to fair labour practices
The Applicant had employed the Third Respondent, a foreign national, and terminated his employment when it discovered that he did not have a valid work permit. The Third Respondent referred the matter to the First Respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA), arguing that the dismissal was unfair. The Applicant contended that the CCMA did not have jurisdiction to hear the matter as the employment was illegal and the Third Respondent was therefore not an ‘employee’ as per the Labour Relations Act 66 of 1995.
The application was dismissed.
The contract of employment was not invalid, despite the fact that Applicant did not have a valid work permit. Applicant was an 'employee' as defined in s 213 of the LRA and entitled to refer the dispute concerning his unfair dismissal to the CCMA. Further, the definition of 'employee' is not dependent on a valid and enforceable contract of employment.