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Don't land up in jail because you didn't know if your employee can work for you... legally!

by , 04 May 2015
If you knowingly employ a foreign worker who doesnʼt have the right papers or has entered the country illegally, youʼre committing a criminal offence. Youʼll face fines and/or imprisonment.

Plus, youʼre legally required to check the status or citizenship of all the employees in your organisation. This is just one of your obligations as an employer outlined by the Immigration Act.

Keep reading for the four steps you can follow to hire foreigners legally...

Four steps to make sure you hire foreign workers legally
Use these steps to make sure you hire foreigners who can legally work in South Africa.
Step 1: Find out where your prospective employee is from
Find out the nationality of the employee before you hire him. 
Ask for identification like:
  • An identity book or card;
  • A passport; 
  • A residence permit; or
  • Require him to complete a BI-529 form. You can download this from the Department of Home Affairs' ('DOH') homepage. The DOH will then confirm the foreigner's status as it reflects on their records in writing.  

Step 2: Get evidence that he can legally work in South Africa
Your candidate must have a valid work permit. This must show when it was given to him, when it expires and how long it's valid for. A lot of work permits will also show what kind of work he can do and who he work for. For example, it might say 'general work' or it might say "sales for Bolt Holdings". So, ask for his residence or work permit. 
There are four main types of work permits:
  • General work permit. This is the most common type of work permit and like the name suggests it's a general permit given to someone who wants to work in South Africa. It's valid up to five years;
  • Corporate permit. This type of permit allows your company based in South Africa to employ more than one foreigner. It's not like the general work permit because your company gets this permit, not the employee. This type of permit is also valid up to five years;
  • Exceptional Skills Permit. This is a special permit that someone with exceptional skills or qualifications receives. His immediate family members also receive it, as determined by the Director-General. This type of permit is also valid for three years; and
  • Intra-company transfer permit. This allows an employee working for a company outside of South Africa, to transfer to the company's South African branch, subsidiary or affiliate. This permit has a limit of two years.

Keep reading below for the last two steps.

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You see, what most employers don't realise is that you only have three months after Government signs in law changes to comply. 
That means, if your company isn't already implementing last year's changes to the Employment Equity Act and the Basic Conditions to Employment Act, you're in BIG trouble. 
And it could cost you up to R2.7 million or 10% of your annual turnover depending on the offence you commit. 
And with the Labour Relations Amendments Act coming into effect at the start of January, you only have until the 1st of April to get up to speed with these too.
That's no time at all when you think there are over 70 amendments to these acts you need to implement. 
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Step 3: Verify the information
Now that you have his ID documents, you must make sure they're valid. His ID or passport mustn't be tampered with or show incorrect details in any way. It must clearly show a picture of him and his personal information. The permit must match the details in his passport. For example, his passport number must be the same as the number in his permit. If you aren't sure if his information is correct, verify his id and permit with the Department of Home Affairs. You can contact them on 0800 60 11 90.
Step 4: Offer an employment contract with a suspensive condition 
If the candidate doesn't have a work permit yet, include a suspensive condition in his offer. State you'll only hire him once he complies with the legal requirements of the Immigration Act. Include a specific time frame for him to comply. It'll be up to him to get the right work permit from the Department of Home Affairs. The time limit you give him depends on your operational needs.
But bear in mind you might have to appoint someone else in that position for a short time.
If he doesn't comply with the suspensive condition, the job offer won't be available anymore. Don't let him work until he complies with these rules.

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