Can Foreign National Worker on permanent contract be dismissed when work permit has expired?
No, foreign national employees in South Africa cannot be dismissed simply because their work permits have expired.
Employment Protection
The Labour Relations Act (LRA) protects foreign nationals as employees, even if their work permit has expired.
Fair Procedure
Employers must follow fair labour practices before disciplining or dismissing a foreign national employee whose work permit has expired.
If the employee fails to produce the required valid work permit/visa, the employer must follow the proper incapacity procedure to terminate employment and dismiss the employee.
Consultation and Assistance
Employers should consult with the employees and give them time to apply for an extension or assisting them in the process. The goal is to avoid dismissal if possible. Therefore, the employer has a responsibility to ensure that the employee applies for an extension before the existing work permit expires.
Incapacity Process
If there is no misconduct, the employer should follow the incapacity process. Employers who employ foreign nationals without a valid work permit or passport can face imprisonment or fines.
Compensation
If the employee is unfairly dismissed, they can seek compensation through the CCMA.
