The social relief announced by the President was welcomed with open arms across the Republic. One would assume that the Covid-19 Social Relief of Distress Grant would be available to every person employed in South Africa to provide relief for persons not receiving any other form of assistance or income. However, the grant is still unavailable to asylum-seekers and special-permit holders.
Should preference be given to our nationals and thereafter look to assist those with nationality elsewhere?
The Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) and the Unemployment Insurance Fund Act is clear. If you are employed on a permanent basis and make contributions, you qualify to claim. The challenges with TERS have been well publicized but individuals with immigration status issues are feeling that they are being excluded from the Fund.
From the outset, it must be noted that a foreign employee’s entitlement to a UIF benefit stems directly from Section 213 of the LRA in determining whether or not they are considered an employee. Accordingly, this section makes provision for any person but precludes an independent contractor.
In the case of Southern Sun Hotel Interests (Pty) Ltd I.R.O. Southern Sun Waterfront Hotel v CCMA and Others the court held, having had regard to Discovery Health Limited v CCMA (Annexed hereto marked “A”), that the respondent was, “entitled to the protection offered to employees in terms of the LRA, even though she did not have a valid work permit.”
It is trite law that the validity of a foreign employee’s work permit is not to be considered. Accordingly, the court considered the nature of the employees’ contract to ascertain whether they qualify to claim UIF. The employees’ contract must be permanent – and not be for a definitive time or specified project as indicated below.
The following list precludes foreign employees from claiming UIF:
- Employees entering South Africa for a contract of service;
- Apprenticeship and;
- Learnership of a fixed duration
- Working less than 24 hours a month for an employer;
- Public servants;
- Foreign employees working on contract;
- Workers who get a monthly State (old age) pension or;
- Workers who only earn commission
However, many asylum-seekers and employees in the country in terms of special permits meet the requirements to claim but, still find it difficult to obtain any funding from the grant. Therefore, the Scalabrini Centre has taken the government to court and submitted that, “it is irrational and unreasonable to exclude such persons from being able to apply for it solely on the basis of their nationality or immigration status.” The exclusion of the abovementioned employees is contrary to the objective of the grant in that it is aimed at alleviating the suffering of households affected by the Covid-19 pandemic.
Therefore, to be eligible to claim UIF benefits from the Fund as a foreign employee, both employer and employee must have been contributing to the Unemployment Insurance Fund and be compliant in all the other aspects referred to above.
Click here for the TERS user guide should you have any further questions.
Article by Darian Hock, Candidate Attorney at Faure & Faure Inc. Email: firstname.lastname@example.org