Authors: Darryn Mer– Special Counsel & Lethabo Madumo– Candidate Attorney
It is common cause that the purpose of our criminal justice system is to, inter alia, rehabilitate ex-offenders and have them reintegrated into society. Once an individual has served his/her sentence, they are deemed to have been rehabilitated and therefore, they can participate and contribute to the economy and enjoy privileges afforded to all members of society. Despite this, the reality is that individuals who have criminal records often encounter significant obstacles when seeking employment. The Labour Court in O’Connor v LexisNexis (Pty) Ltd addresses issues encountered by such individuals and provides an approach to dealing with job applications from individuals with criminal records.
LexisNexis (Pty) Ltd (“LexisNexis”), the respondent in the matter, advertised a position for a Senior Data Discovery and Enrichment Expert 1. An individual occupying this role would be responsible for organising and classifying information published by LexisNexis. The applicant, Mr O’Connor, applied for the position, attended an interview, and was later notified that his interview was positive. LexisNexis required further information from Mr O’Connor including the submission of fingerprints and the completion of a “RefCheck Consent and Indemnity form” which enables employers to conduct background checks on employees and allows them to investigate an employee’s criminal background.
Mr O’Connor disclosed that in 2001 he was criminally charged with theft, however, the conviction was later expunged. LexisNexis extended an offer of employment to Mr O’Connor, which was duly accepted and both parties concluded a contract of employment.
In the meantime, LexisNexis received the RefCheck results, which revealed that Mr O’Connor has various criminal records under his name, including six counts of theft,
one count of fraud and two counts of defeating the ends of justice. It was based on this criminal history that LexisNexis decided to withdraw its offer of employment.
Mr O’Connor took the matter to the Labour Court (“the Court”) claiming that LexisNexis unfairly discriminated against him on an arbitrary ground of past criminal convictions within the meaning of section 6 of the Employment Equity Act (“EEA”).
In making its decision, the Court examined whether excluding Mr O’Connor, due to his criminal record, constituted unfair discrimination. The Court considered section 6 of the EEA together with the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices (“the Code”). Section 6 of EEA prohibits unfair discrimination on listed and arbitrary grounds and the Code provides a clear guide on the necessary considerations that employers need to be aware of when dealing with issues and procedures relating to employment equity.
The Court alluded to the fact that the EEA and the Code provide that an employee’s criminal history only becomes relevant if it has a direct bearing on an employee’s inherent job requirements. This means excluding an applicant from employment based on a criminal history would constitute unfair discrimination in circumstances where that criminal history is irrelevant to the requirements of the job. Such an exclusion would be arbitrary because the decision would be without a valid reason.
When unpacking whether there has been unfair discrimination on an arbitrary ground the Court found that more is required than just decisions based on an individual’s discretion. The Court held that a claim for unfair discrimination on an arbitrary ground under the EEA can only be sustained if the discrimination is based on attributes or characteristics which have the potential to impair the fundamental dignity of human beings, or affect them in a manner that is comparably as serious as discrimination on a listed ground, such as race, gender and culture.
The Court was of the view that Mr O’Connor’s criminal history is an inherent attribute that cannot be detached from him and influences how he is perceived by society. As such, to the extent that LexisNexis withdrew their employment offer, on the basis that Mr O’Connor has a criminal record, despite the criminal history not being linked to the inherent job requirements, such withdrawal constituted an unfair discrimination on an arbitrary ground. The Court concluded that a criminal record, while significant, should not automatically disqualify an applicant unless directly related to the role/job’s core requirements.
In light of this, employers should view this judgment as a vital lesson and ensure that any exclusions based on criminal records are directly linked to the inherent requirements of that job. Employers should approach the possible employment of criminal offenders with an open mind and take into consideration the actual work that the individual would be required to perform. To have a blanket policy disqualifying individuals with a criminal record is something that the law, as set out in this case, frowns upon. As criminal punishment is rehabilitative in nature, past offenders should be given opportunities in the workplace.
The judgment also highlights the importance of disclosure. Mr O’Connor’s upfront honesty about his criminal record demonstrated integrity, contrasting with a potential dismissal based on misconduct when applicants withhold essential information.
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