When determining which candidate to appoint, employers often, and rightly so, seek to advance their employment equity targets and to obtain the maximum amount of BBBEE points. Consequently, South African citizens are often favoured over foreign nationals for employment. What happens when a foreign national requests reasons why she/he was unsuccessful and the employer’s response is that preference was given to a South African citizen? Could such a response lead to a claim of unfair discrimination?
The employment of foreign nationals is regulated by the Immigration Act which provides that a foreign national shall “enjoy all the rights, privileges, duties and obligation of a citizen”. Critically, the Immigration Act also contains an express limitation of that right to the extent that a foreign national shall not enjoy the rights, privileges and duties which legislation or the Constitution explicitly ascribes to South African citizens.
The Employment Equity Act is one piece of legislation which explicitly ascribes rights to South Africans. It applies to ‘designated groups’ who are defined as ‘black people’, women and people with disabilities who are South African citizens or who became citizens by naturalization before 27 April 1994 (or persons who would have been entitled to acquire citizenship by naturalization prior to that date but who were precluded by apartheid policies).
The Broad-Based Black Economic Empower Act contains a similar definition and defines ‘black people’ as Africans, Coloureds and Indians who are South African citizens or who became citizens or could have become citizens prior to 27 April 1994.
Furthermore, the Employment Services Act (which came into effect in August 2015) (“the ESA”) empowers the Minister of Labour to make Regulations to facilitate the employment of foreign nationals which may include a measure that “employers must satisfy themselves that there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national”. (Our emphasis).
While the ESA’s Regulations have yet to be published, the intention is clear, foreign nationals ought only to be employed where there are no South African citizens available who can perform the role.
Our legislation, therefore, favours the employment of citizens ahead of foreign nationals. It is therefore unlikely that a foreign national would be able to sustain a claim of unfair discrimination due to the preferential appointment of a South African citizen in order to comply with an employment equity plan or to maximize BBBEE points.
Employers should ensure that when marketing new or vacant positions the job advertisements clearly provide that EE candidates will be favoured. Such clauses should prevent any undue expectation on the part of foreign nationals and may become useful should a dispute arise.