What is the Fine for Employing Someone Illegally?
Finding the right people for the right job can be a difficult task. Many employers may search high and low for skilled labourers and still not find anyone suited for the work. Eventually, they may begin hiring illegal immigrants if it means getting the job done. Most people know that this is a crime, but not everyone knows what it can cost you. So let’s consider that now. What is the Fine for Employing Someone Illegally?
Employing an illegal immigrant, or a foreign resident who does not possess a relevant work permit can result in fines ranging from R7 000 to R50 000 per employee. In particularly serious scenarios the employer may even face jail time for their violation.
Obviously, there’s quite a jump between the costs of those fines, and there’s an even bigger jump between the fines and a prison sentence. So why is this the case? What determines the cost of the fines?
Factors Considered when Punishing Illegal Employment
The Immigration Act 13 of 2002 clearly states that no South African may employ an illegal immigrant. Quite cut and dry, right?
Well, there are a few influencing features that come into play here namely –
- Intent – Section 38 of the Immigration Act notes that an employer who wishes to avoid punishment must prove that they were unaware that the worker was an illegal foreigner and that they were operating in ‘good faith’. Simply put, you may argue that you just assumed the immigrant was a true-born South African and thus you believed that there was no issue with hiring them. On the other hand, if authorities find out that you knew of the issue and hired the workers anyway, you might find yourself in a much worse position.
- Assistance issued – Hiring an illegal immigrant is one thing, but providing certain aid can be a far more severe violation. If you are found guilty of teaching an illegal foreigner a skill or trade, providing them with accommodation, or helping them obtain false identification you are much more likely to face serious criminal charges.
- Obstructing justice – When caught in the act, some employers try to lie to authorities in hopes of avoiding punishment. This can result in harsher fines and criminal charges.
At the end of the day it’s up to the Department of Home Affairs to decide how serious the infringement was and what kind of punishment you should receive.
Needless to say, a person who unknowingly hires an illegal resident to clean their home or mow their lawn will probably end up with a slap on the wrist or a warning. On the other hand, someone who is caught training illegal workers and providing them with falsified documentation will usually be looking at a lengthy stay in prison.
What Makes Someone an Illegal Worker?
The title of illegal worker can apply to many types of people and can be hard to determine. A short list of things that make a person an illegal worker are –
- A person who has not legally entered into the country and is currently breaking the law by being in South Africa.
- A person who does not own a work permit (this can apply even if you have legally entered the country).
- A person working a job that does not correspond to their work permit.
That last one might be a bit hard to understand. Basically, there are multiple permits that can be applied for when you enter the country. Each permit allows you to do a specific job, therefore, an individual may obtain a work permit but begin working a different kind of job which is still illegal.
What are the Different Kinds of Workers’ Permits?
Depending on the profession, it may be vitally important for an employer to make sure that an immigrant has the right permits/visas for the job. It’s a good idea then to recognise the different types of permits that you may need to look out for when hiring an immigrant.
|Section of Immigration Act
|Study and learning at an approved institution
|Establishing a business
Investing in a business
Working for a business
|Allows a corporation to hire necessary, legal immigrants
As you can see, different permits allow for different types of work and, as mentioned already, a worker can still be illegally employed if their permit does not match the type of work that they are doing.
What are the Rights of Illegal Workers?
One of the main draws for hiring illegal immigrants is the assumption that they can be treated differently from legal residents. Employers will often hire such individuals believing that they will be able to pay them a fraction of the cost of a normal employee.
This comes from the idea that an illegal immigrant cannot seek help from agencies like the CCMA without compromising their residency. While this may be true, employers should still be cautious about mistreating illegal workers.
In the landmark case Discovery Health Ltd vs CCMA & others (CLL Vol. 17 April 2008), the court decided that foreigners, whether here legally or not, are protected by the same workers’ rights as any South African.
What this means is that unfair treatment of illegal workers, including things like abuse and unsafe working conditions, can be punished in the same way as it would be for any other citizen.
Will you get Caught for Employing Someone Illegally?
A 2016 census placed the estimated number of illegal immigrants in South Africa at around 1.2 – 1.5 million people, although it should be noted that there are ongoing arguments over the accuracy of such studies and the numbers are often disputed.
Be that as it may, many South Africans feel that they can get away with hiring illegal workers because the authorities will often ignore the issue and the odds of getting caught are very low.
While this may have been true in the past, the government has recently stated that a hard crackdown on illegal immigrants is on its way and that it will include audits and investigations into companies that are suspected of employing illegal workers.
It makes sense then, that employers should be careful when hiring undocumented workers as the repercussions could be severe.
In Conclusion – What are the Fines for Employing Someone Illegally?
Employing a foreigner who is in the country illegally or who does not have the relevant work permits could result in fines of between R7000 to R50 000 per illegal employee. In some situations, this violation might even land you in prison. The punishment you will receive will be based on the context and extent of your crime, for example, unknowingly hiring one illegal worker may only result in a warning, whereas hiring multiple illegal workers whom you know to be undocumented could end with much higher penalties.
The factors that will influence and most likely increase the severity of your punishment are normally –
- Whether or not you knew that the person was undocumented
- How many illegal immigrants you have employed
- Any training or education you provided to the workers
- Any accommodation you provided
- Whether or not you attempted to help them gain fake identification and/or work permits
There are many different types of work permits and you must ensure that the employee has the correct type for the work that they are doing. It is illegal for a person to do work that is not covered by their specific work permit. Illegal workers benefit from the same workers’ rights as any true-born citizen. As such, you can be harshly penalized for treating undocumented workers in an unfair or inhumane way as specified by the Constitution and the Employment Equity Act of 1998.
New legislation has been proposed that may see an increase in policing against illegal employment in the country. Additionally, businesses may be audited or investigated if it is believed that they have undocumented workers employed at their company.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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