For many South African employers, immigration compliance has historically been treated as something separate from day-to-day labour law. That approach is becoming increasingly dangerous. A March 2026 employer alert discussed a CCMA award confirming that where a foreign national employee does not have a valid work permit, continued employment may be unlawful and the employer may be required to terminate employment through an appropriate process. The matter serves as an important warning to employers across hospitality, farming, logistics, security, retail and all sectors where foreign national labour is part of the workforce.
The first principle employers must understand is that checking a permit once at the start of employment is not enough. Work authorisation is not a static issue. Permits expire. Conditions change. Renewals are delayed. Visa categories may be tied to specific work or employers. If the business has no monitoring system, it may suddenly find itself employing someone without a lawful basis to do so. That creates both immigration risk and employment law risk.
This is where many employers make a costly mistake. They either ignore expiry dates until a crisis arises, or they react abruptly when they discover a problem and create separate labour law exposure through poor process. A foreign employee without valid work authorisation does create a serious issue, but the employer still needs to approach the matter properly. The legal alert on the CCMA award indicates that the lack of a valid permit generally calls for an incapacity-based process because there is no lawful basis to continue employing the person. In other words, the problem is not always handled as ordinary misconduct unless there was deliberate dishonesty or misrepresentation by the employee.
That distinction matters greatly. Employers sometimes assume that expired documents automatically justify immediate dismissal for misconduct. That may be unsafe. If the employee did not intentionally deceive the employer but simply no longer has valid work authorisation, the employer may still have to follow a fair process grounded in the fact that continued employment is unlawful or impossible. If, however, the employee intentionally misled the employer, submitted false documentation or concealed the true position, misconduct may also come into play. Employers need to analyse the facts carefully rather than reacting in blanket fashion.
The best protection is prevention. Every employer using foreign labour should have a right-to-work compliance system. That means obtaining and retaining copies of permits, visas and supporting identity documents. It means diarising expiry dates well in advance. It means communicating with the employee early about renewals. It means requiring updated copies on a structured basis. And it means making sure the business knows what category of work authorisation the employee actually holds, rather than simply keeping a copy in a file without understanding it.
This issue is particularly acute in sectors with high turnover or decentralised management. A head office may assume site managers are checking documents, while site managers assume HR is handling it centrally. In the meantime, nobody tracks expiry dates. Smaller businesses are equally vulnerable because they may rely on trusted employees and fail to formalise their record-keeping. By the time the problem surfaces, the business may face disruption, staff shortages and possible regulatory consequences.
Employers should also be cautious about making assumptions based on nationality or accent. Immigration compliance must be handled lawfully, consistently and without unfair discrimination. The question is not who appears foreign. The question is whether the employer has carried out appropriate right-to-work verification wherever required. Informal profiling is not a compliance strategy. A proper document system is.
Another practical issue is timing. Employers should not wait until a permit has already expired before raising the matter. Advance tracking is critical. Where renewal is underway, the employer should assess the actual legal position and documentation carefully. Businesses should avoid both extremes: continuing employment blindly when there is no lawful basis, or terminating prematurely without understanding whether the employee has a valid pending status or what process is required. These cases are fact-sensitive and can become contentious quickly.
The employment relationship with a foreign national employee therefore needs careful contract drafting as well. Contracts should make continued employment subject to valid work authorisation where legally required, oblige the employee to maintain and provide updated documentation, and allow the employer to take necessary steps if the employee becomes unable lawfully to work. Even then, a fair process remains important. Contract wording helps, but it does not replace lawful procedure.
In 2026, the message to employers is straightforward. Expired permits are not merely an employee problem. They can become an employer liability. Businesses that fail to verify work authorisation before and during employment are exposing themselves unnecessarily. At the same time, employers who discover a permit problem must respond with the correct legal approach rather than with panic. Immigration law and labour law now meet very directly in this space, and employers need to manage both.
CTA: If your business employs foreign nationals and you need compliant contract clauses, right-to-work checks, permit tracking systems or guidance on fair process where permits have expired, Labour Law with Luzan can assist.
Labour Law with Luzan specifically caters for employers only and not employees.
