South African employers are being warned to prepare for increased scrutiny as authorities intensify inspections of businesses employing foreign nationals.
This was highlighted in a recent case outlined by Cliffe Dekker Hofmeyr (CDH), which underscored both labour and immigration risks businesses face.
Employment experts and senior associates, Lee Masuku and Taryn York, explained that the case centred on a Zimbabwean national who worked as a bakery manager at a grocery retailer.
The employee posted a Bible verse on his personal and management WhatsApp statuses, which “purported to suggest that foreigners were gaining power over local residents.”
The post came amid a xenophobic Facebook campaign targeting 23 foreign employees at the store, calling for protest action to “shut down” the business.
According to CDH, tensions escalated rapidly. The employer met with foreign staff and asked them not to inflame the situation while it was being investigated.
With fears of unrest mounting, the company asked for assistance from the South African Police Service (SAPS) ahead of the planned protest. However, this prompted authorities to examine the company’s compliance.
“Following the Facebook campaign, the Department of Employment and Labour (DEL) and Department of Home Affairs (DHA) investigated the store’s records, specifically the work visas of its foreign national employees,” the firm noted.
This intervention highlighted a broader trend of enforcement when disputes involving foreign workers arise.
Employees linked to the Facebook campaign were either dismissed or transferred. The employee who posted the Bible verse apologised for posting the message in the management group.
Although the post was removed within minutes, he defended his personal status. He was subsequently charged with misconduct, found guilty, and dismissed.
The employee challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), and argued that dismissal was too severe and that a final written warning would have sufficed.
The case highlights the ongoing blitz inspections of employers in South Africa
While the arbitrating commissioner agreed that the WhatsApp status was “deliberate and ill-judged,” the sanction was deemed excessive.
The commissioner found that the post did not amount to hate speech, did not incite violence, and was less severe than the Facebook campaign.
As a result, a final written warning was considered appropriate, and the employee—who did not seek reinstatement—was awarded compensation equal to three months’ pay.
The judgment reaffirmed that commissioners are not bound by an employer’s chosen sanction but must independently assess fairness.
On review, the key question is whether the decision falls within the bounds of reasonableness—not whether a different outcome might have been reached.
Apart from the labour dispute, the employment experts and CDH stressed the immigration compliance implications.
“The case highlights the ongoing blitz inspections conducted by the DEL and DHA when allegations or disputes arise relating to the employment of foreign nationals.”
During such inspections, authorities may request documentation to verify compliance with the Immigration Act 13 of 2002.
These inspections are not limited to high-profile incidents. “It is not uncommon for the DHA or DEL to conduct random workplace inspections to test compliance,” CDH warned.
Employers are advised to ensure that foreign employees have valid work visas and passports, that records are up to date and easily accessible, and that they can respond quickly to official requests.
