FOREIGNERS SHOULD NOT BECOME SCAPEGOATS FOR THE UNEMPLOYED

THE employment of non-South African citizens has reared its ugly head again. Unfortunately, this is an emotional issue in which emotion is being heavily pressed by the Economic Freedom Fighters as a political party.

Before one has to tackle the emotions it is important to have a look at our law.

The South African Constitution is the basis of all law in South Africa and has to be understood as being the underlying document for all other legislation.

Our Constitution is quite clear: Every single employee in South Africa is entitled to fair labour practice. Unfair discrimination (unless positive unfair discrimination) is completely outlawed by the Constitution.

This concept is unpacked and elaborated in the Employment Equity Act. Specifically, Section 6 of the EEA prohibits unfair discrimination against any employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or on any other arbitrary grounds.

In essence, an employee in South Africa or an applicant for employment has the benefit of protection under our Constitution and the Employment Equity Act.

Foreign nationals in employment have access to the same labour law system as any other employee in South Africa.

Foreign nationals obviously need to show that they have a right to be in the country and a right to work. The problem arises when an employer discovers that the foreign national does not have a work permit. If the foreign national has a forged permit and knows that the permit was forged, then this person could be subject to a disciplinary hearing and be dismissed. The onus lies on employers to ensure that every single foreign national has a currently valid permit.

The labour laws give enormous rights to employees who are in current employment. Should it be discovered that that particular employee does not have a work permit it becomes incredibly difficult to dismiss that employee.

At the same time, the employer faces the possibility of a criminal record which could consist of a fine or jail sentence. Once again, employers have an obligation to ensure that the employee is able, in terms of our law, to work in South Africa.

There are no obligations on employers, especially those employing under 50 employees, to follow any sort of quota as contained in the Employment Equity Legislation.

In other words, the entire workforce might consist of foreign nationals who are in possession of valid work permits. It must be remembered that applicants for the purposes of Sections 6, 7 and 8 of the EEA fall under the definition of “employee”.

The harassment of any employee is a form of unfair discrimination and is prohibited. Foreign nationals in South Africa today are under enormous pressure at the workplace.

Due to the unemployment of almost 10 million South Africans, there seems to be a xenophobic backlash wanting to push foreign nationals out of their legitimate jobs. This push is both unfair and illegal.

These individuals have rights and if dismissed because they are foreign nationals, they may approach the Commission for Conciliation Mediation and Arbitration (CCMA) within six months after the act that allegedly constitutes unfair discrimination.

We have read about the witchhunt being conducted by the EFF. This witch-hunt will eventually cause outbreaks of xenophobia and is certainly not legal. The only entity that may conduct inspections at private businesses in South Africa is the Inspectorate of the Department of Employment and Labour.

The bullying tactics of any other institution wanting to threaten businesses because of their employment practices is completely condemned. The CCMA has openly stated that interference by a political party into employment practices is not acceptable.

Trade Unions active at the workplace have the ability to ask questions and possibly make demands. Likewise, the Parliamentary Portfolio Committee of Employment and Labour have an oversight role which is officially done in terms of Parliament.

Even more disturbing is the practice by some employers of rather wanting to employ foreign nationals so as to exploit them. Each industry and country has a minimum wage.

The practice of paying less is illegal and discriminatory and fans the flames of xenophobia.

Sadly, the high unemployment figures are persistent and have been so for over a decade. The government is not assisting businesses in any way in order to create an environment for job creation. The flagging employment figures leave many South Africans despondent and looking for a scapegoat.

This scapegoat often boils down to xenophobic action and this must be carefully monitored and avoided.