Does a criminal record bar employment?
CASE:
O’Connor v LexisNexis (Pty) Ltd [2024] ZALCPE 11 (11 April 2024)
Background:
This case concerns the refusal of the respondent to employ the applicant on the grounds of his criminal record.
During December 2023 the respondent, a well-known publisher of legal and other academic texts, advertised a position it wanted to fill in its taxonomy team. The position was for a “Senior Data Discovery and Enrichment Expert 1” which job entailed organising and classifying information published in various legal products. The applicant applied for the position.
On 20 January 2024, the respondent emailed the applicant saying that his interview had been positive, and that the respondent required further information from the applicant to continue processing the application. This information included filling out a “RefCheck Consent and Indemnity Form.”
The applicant responded with the requested information the following day. When filling out the form, the applicant responded “yes” when asked if he had ever been criminally charged. In response to the section “If yes, details of charge / conviction”, the applicant filled out the available space by saying “For theft in 2001 which has been expunged…”.
On 27 January 2024, the applicant provided his fingerprints at a local PostNet for the purposes of the respondent conducting a criminal background check.
On 29 January 2024, the respondent sent the applicant an email stating the following:
‘[The respondent] is pleased to offer you permanent employment in the position of a Senior Data Discovery and Enrichment Expert I, effective 15 February 2024 (9-month contract) until 31 October 2024. Your employment will be subject to the acceptance of this estimated salary breakdown and the conditions set out in your contract of employment which will be sent once acceptance has been received…. Once your acknowledgment has been received, [the respondent] will send you a contract of employment…. This offer of employment is subject to RefCheck verifying all your credentials as valid, criminal checks being clear and a positive reference from a previous employer.’
The applicant accepted the offer on the same day. The next day the respondent emailed the applicant a contract of employment and the document was signed electronically by both parties that same day. The applicant was given access to respondent’s “workday schedule portal” where the applicant would receive his daily work schedule. However, a week later the respondent emailed the applicant stating that the respondent was now “retracting” the “conditional offer” of employment because the criminal check had revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice. The applicant responded by explaining that these convictions took place 20 years ago and that his criminal record had in fact been expunged. He concluded by saying “I plead with you [to] allow me the opportunity to explain”. There was no response from the respondent.
The applicant referred a dispute to the CCMA which remained unresolved at conciliation, which the respondent did not attend. The applicant then approached the Labour Court claiming an automatically unfair dismissal, alternatively repudiation of the contract of employment (claiming specific performance) and unfair discrimination based on an arbitrary ground. The Court declined to deal with the unfair dismissal claim as such could be determined at a later date. However, to ensure “substantial redress”, the Court dealt with the alternative claims on an urgent basis.
The Court found that given that the offer of employment was always subject to criminal checks being clear, a revelation that the applicant’s criminal checks were not clear would, according to contract law, immediately terminate the contract. This was the effect of a resolutive condition. Although the Court accepted evidence that the convictions had been expunged, this did not mean that the convictions were deemed to have never taken place (at least not for the purposes of contract law).
The Criminal Procedure Act 51 of 1977 indicated that previous convictions are “expunged” for the purpose of not taking those previous convictions into account when sentencing criminals convicted of later offences. This was a very specific purpose relating to the administration of justice. The respondent was entitled to classify an expunged criminal record as representing something less than a “clear” criminal record check. A clear criminal record in this instance would mean someone without any criminal history at all. The Court found that the respondent was entitled to invoke the resolutive condition to terminate the agreement, and therefore did not repudiate the applicant’s contract of employment. Accordingly, the applicant’s claim for specific performance under this heading was dismissed.
Turning to the unfair discrimination claim, the Court referred to paragraph 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices, which states that: ‘An employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references and investigating whether the applicant has a criminal record, if this is relevant to the requirements of the job’ and to paragraph 17.3.6 which states that ‘An employer may not collect personal data regarding an employee’s sex life, political, religious or other beliefs, or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision’ (Labour Court emphasis). Thus an exclusion on the grounds of a criminal conviction which was irrelevant to the requirements of the job would be arbitrary because the decision would be without rational justification.
However, the Court found (with reference to the Constitutional Court case of Harksen v Lane) that a claim for unfair discrimination on an arbitrary ground under the Employment Equity Act can only be sustained if the discrimination is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a manner that is comparably as serious as discrimination on a listed ground, such as race, gender and culture. The Court found that the applicant had an inherent attribute that was intimately connected to how he was perceived by society. He had been convicted of a crime. The South African criminal justice system was premised on the idea that once the criminal has paid their debt to society, that person must be allowed back into society. To deny that person their right to freely participate in society with dignity, was to deny them their Constitutional rights as a person.
The Court found that while the applicant’s convictions might preclude the applicant from taking up positions that require trust and honesty, there was no indication that the position of Senior Data Discovery and Enrichment Expert 1 required any significant amount of trust and honesty, and certainly not so much that the possibility of the applicant’s rehabilitation should be completely disregarded. The applicant was to work from home, a great distance away from the respondent’s offices, using his own resources, and it stretched credulity to imagine that the applicant would sit at home and maliciously miscategorise legal information for his own benefit. The Court therefore found that the applicant’s criminal history was not relevant to the job which the respondent had denied him, and that the said denial constituted unfair discrimination.
The respondent was ordered to employ the applicant in the position of Senior Data Discovery and Enrichment Expert 1 on a nine-month contract.
[In passing, the Court confirmed that a failure to initial all pages of an affidavit (and more specifically the annexures) did not invalidate the affidavit.]
Key takeaways
- The Court will only deal with a referral on an urgent basis if it is satisfied that the applicant would not be able to obtain substantial redress if the matter were to be heard in accordance with the normal court schedule (which the Court noted might only be a year later).
- If there is a resolutive condition included in an offer of employment (i.e. one which would lead to the termination of the contract on the occurrence of a stipulated event), a retraction of the offer after acceptance by the employee in circumstances where the condition is not met would not amount to a repudiation of the contract.
- An employee’s past criminal record can only be taken into account in determining his/her suitability for a job if it is relevant to the inherent requirements for the job.
- To deny a convicted criminal their right to freely participate in society with dignity once they had paid their debt to society, was to deny them their Constitutional rights as a person. Thus, an exclusion from employment on the arbitrary grounds of a criminal conviction, where the exclusion is not based on the inherent requirements of the job, constitutes unfair discrimination.
