LabourNet Industrial Relations: Can Foreign Employees claim UIF?
Foreign employees are often overlooked when it comes to their employment equity options. Here are the facts.
Before one can answer this question, one must first answer the question of whether foreign employees are considered employees in terms of the Labour Relations Act. If they are, should they then contribute towards UIF and thus be able to claim in the unfortunate event of losing their job.
According to Section 213 of the Labour Relations Act 66 of 1995, an employee is defined as “(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and (b) any other person who is any manner assists in carrying on or conducting the business of the employer.”
In court cases that dealt with this matter, it was found that illegal foreigners or undocumented immigrants are employees for the purposes of LRA. They therefore enjoyed the status of an employee for purposes of LRA and are entitled to the protection offered to employees by the LRA even though they do not have a valid work permit.
We can therefore establish that an individual who, although foreign, works for another person or for the State and who receives remuneration is considered an employee in terms of the LRA. We can further establish from case law that a foreign employee, whether legal or not, is offered protection in terms the LRA. If a foreign employee enjoys the full benefits of an employee, they should also be liable to contribute towards the Unemployment Insurance Fund, which would allow them to claim benefits.
It should be noted, however, that Section 4(1) (d) of the UIF Contributions Act 4 of 2002 does exclude some foreign employees from contributing towards UIF. These are foreign employees who enter South Africa for a contract of service, apprenticeship or learnership of a fixed duration. On termination of such service or learnership, they must return to their home country by law or per the contract. It is submitted that these exclusions are logical given that apprenticeships and learnerships do not imply permanent employment and that fixed term contracts, assuming no legitimate expectation of renewal was created, would mean that the employee is in SA for a clearly defined period of time or a clearly specified project. Burdening such employees with UIF would be at best impractical and at worse, unfair given that they would not be able to claim in the event of unemployment as they would thereafter be in SA illegally.
The UIF Act does not specifically exclude non-residents and benefits appear to apply to those who make contributions. According to Section 16 of the UIF Act “Subject to section 14, an unemployed contributor is entitled to unemployment benefits contemplated in this Part for any period of unemployment lasting more than 14 days”
We can therefore conclude that foreign employees can contribute towards UIF since they are considered employees for purposes of the LRA and can further claim UIF provided they have made contributions towards it, subject to the exceptions provided by the UIF Act cited supra.
For more information with regard to UIF claims, please contact the LabourNet Helpdesk at 0861 LABNET (0861 522638).
Lungelo Khanyile
Industrial Relations Consultant
Johannesburg North
lkhanyile@labournet.com
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