This Labour Brief examines a significant High Court ruling confirming that the dismissal of a foreign national without a valid work visa may still be unlawful if proper termination procedures are not followed.
The case involved a foreign national employed on successive fixed-term contracts whose employment was terminated with immediate effect due to the absence of a valid work visa. While the court reaffirmed that employing a foreign national without authorisation contravenes the Immigration Act and may constitute a criminal offence, it also emphasised that employers remain bound by the notice requirements of the Basic Conditions of Employment Act (BCEA).
The court found that the employer acted unlawfully by failing to provide statutory notice in terms of section 37 of the BCEA. Although reinstatement was deemed impractical, the judgment underscores that unlawful employment does not remove an employee’s right to lawful termination procedures.
This ruling serves as a critical reminder to employers and TES providers that immigration compliance and labour law obligations must be managed concurrently, and that procedural fairness remains essential even in complex compliance scenarios.