In South African labour law, the legal requirements for ‘hiring and firing’ employees apply equally to all employment relationships, regardless of whether the employee has legal authorisation to work. These requirements originate from the Constitution, the Labour Relations Act (LRA), and the Basic Conditions of Employment Act (BCEA).

Some employers have taken advantage of undocumented or foreign workers under the misconception that such employees have fewer rights. This is both incorrect and unlawful. You cannot contract out of the law, as such, the law protects all against unfair labour practices in an employment relationship.

In a recent case, the Labour Court re-emphasised that employers must comply with all legal obligations, even when the employee does not hold a valid work visa.

The mere fact that a person is employed without proper documentation does not entitle the employer to run rough shod of the employment relationship and the law.

If the basic conditions of employment are absent, then an unfair labour practice or dismissal dispute may be found to be unlawful in the High Court, or unfair at the Commission for Conciliation, Mediation and Arbitration (CCMA). Be guided accordingly.