Employment of foreign nationals – Know your rights

There have been many reports in the media in the past week highlighting planned ‘visits’ to the hospitality industry to assess how many foreign nationals the sector employs in South Africa.

As a hospitality business owner, it is now more important than ever to know your rights, as well as how best to respond to requests for information, allegations, or even threats.

Firstly, it’s important to note that FEDHASA and its members are bound by a code of conduct and by the Constitution to respect the rights of others and the more recently introduced POPI Act.

In terms of the POPI Act and the Constitution, disclosing personal information is in contravention of South African law. FEDHASA and its members are thus legally bound to not disclose the personal information of employees, including the nationality of staff, to anyone. This is regardless of whether a formal meeting has been scheduled, or this information is requested during an impromptu visit.

When do you have to disclose staff information?

Depending on the circumstances, any number of officials or official representatives will have a lawful right of access to employee information and records.

This includes certified officials/inspectors acting lawfully with sufficient reason and representing anyone of the following organisations:

  • SA Police Services
  • SA Revenue Services
  • Department of Labour
  • Representatives from:

– Occupational Health & Safety
– Workman’s Compensation
– Unemployment Insurance
– Department of Home Affairs
– Sector Education Training Authority
– CCMA
– Court subpoena
– Certain senior employees of the establishment concerned

Keep in mind that the officials mentioned above would not necessarily be given access to all the information making up an employee’s record. The information provided would need to be relative to the nature of the inspection, request, or inquiry.

Under no circumstance is any political party entitled to any information regarding your employees.

Employment and the POPI Act

In addition, and in terms of the POPI Act, employees have the right to know if their personal information on record is made available to a third party. They have a right to object should access be permitted to persons not lawfully entitled to view their records.

In terms of the POPI Act, a member of the public may request, through the correct channels and using the appropriate forms, information concerning an employee which, depending on the circumstances, may be granted, or refused.

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