Foreigner Fired Without Work Permit—But Still Won Compensation?

Source: OT-Team(G)，清远市中级人民法院

  Recently, the Intermediate People's Court of Qingyuan, Guangdong Province, released a typical case involving a labor dispute with a foreign national.

Case Overview

A Brazilian national, referred to by the pseudonym Alex, worked as a chef at a restaurant in Qingyuan from August to December 2023. During his employment, the restaurant made partial payments covering wages and living expenses. However, due to continued delays and underpayment, Alex eventually resigned. He then filed for labor arbitration and later initiated a lawsuit, seeking unpaid wages and economic compensation for the termination of his employment.

During the proceedings, neither party provided evidence to prove whether the restaurant had obtained a Foreigner's Work Permit for Alex.

Court Ruling

The Qingyuan court held that, under Chinese law, a valid employment relationship with a foreign national requires the employer to obtain the proper work authorization. Since both parties failed to provide evidence that a valid work permit had been obtained, the verbal employment contract was deemed invalid. Nevertheless, the court acknowledged that Alex had indeed performed labor for the restaurant and was therefore entitled to receive wages for his work.

Furthermore, the court ruled that the restaurant bore full responsibility for the invalidity of the employment relationship. It had failed to fulfill its legal obligation to secure a work permit for the foreign employee and had not proven that the failure was due to any fault on Alex's part. As a result, the court ordered the restaurant to not only pay Alex his wages but also provide economic compensation.

Legal Significance

This case underscores a key principle in Chinese labor law: In addition to the usual subordinate relationship between employee and employer, a valid labor relationship involving a foreign national must also meet legal qualifications. Foreign nationals working in China must obtain employment authorization through their employer, including the issuance of a Foreigner's Work Permit.

When an employer hires a foreigner without securing the proper documentation, the employment contract is considered invalid. However, if the employee has performed labor, the employer must still pay wages and compensation in accordance with the law.