Labour Court of South Africa: While considering the instant matter revolving around unfair discrimination under the Employment Equity Act (EEA), refusal to employ because of criminal history and unfair discrimination based on arbitrary ground; the Bench of Mark Meyerowitz AJ.*, held that criminal history is not relevant to the inherent requirement of job. It was further held that the respondent’s decision to deny the applicant the job of Senior Data Discovery and Enrichment Expert I, on the sole basis of his criminal history, constituted unfair discrimination within the meaning of section 6 of the EEA.
The Court was of the view that the applicant deserves the opportunity to prove that he can be trusted to do the job during the initial three-month probationary period. “The applicant has an inherent attribute that is intimately connected to how he is perceived by society. He has been convicted of a crime. Our criminal justice system is 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, is to deny them their Constitutional rights as a person”.
Background and Contentions: The applicant gave his interview to the respondent Lexis Nexis, a well-known legal publisher in December 2023 for the post of Senior Data Discovery and Enrichment Expert I which entailed, organising, and classifying the information published in the respondent’s various legal products.
The applicant applied for the position. Upon receiving positive response in the interview, the applicant was asked to furnish certain information for further processing, which included information regarding any previous criminal charges or conviction. The applicant replied by stating a charge for theft in 2001 which had been later expunged. In January 2024, the applicant submitted his fingerprints for the purposes of the respondent conducting a criminal background check.
Eventually the applicant was offered the job effective 15-02-2024 (9-month contract) until 31-10-2024. Upon acceptance of the offer, the respondent emailed the contract of employment, and the document was signed electronically by both parties. The applicant was subsequently given access to the respondent’s “workday schedule portal” where he would receive his daily work schedule, as he was to work from home. However, in February 2024, the respondent emailed the applicant retracting the “conditional offer” of employment because his 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 been expunged.
The applicant then referred a dispute to the CCMA and the matter was set down for conciliation. The respondent did not attend the conciliation and the Commissioner issued a certificate of non-resolution.
Aggrieved with the afore-stated events, the applicant thus approached the Labour Court on an urgent basis requesting directions to the respondent to honour its original offer. In doing so the applicant has invoked various provisions of the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), and the Employment Equity Act (EEA).
The applicant contended that the parties concluded a valid contract of employment, and that the respondent’s conduct constituted an automatically unfair dismissal on the arbitrary ground of past criminal convictions within the meaning of Section 187(1)(f) of LRA, alternatively that the respondent’s conduct constituted a simple unfair dismissal in terms of Section 188 of LRA. It was further argued that retracting the offer the respondent repudiated the contract of employment. The applicant is therefore claimed specific performance of his contract.
The applicant also submitted that by retracting the offer, the respondent unfairly discriminated against him on the arbitrary ground of past criminal convictions within the meaning of Section 6 of the EEA.
Court’s Assessment and Remedy:
While analysing the case, the Court declined to entertain the applicant’s claim for unfair dismissal on an urgent basis. The remedy of unfair dismissal (whether automatically unfair or simply unfair) constitutes a statutory remedy that is fundamentally ex post facto in nature. It was pointed out that the applicant will still be able to obtain this same remedy in the normal course.
Vis-à-vis applicant’s claim of specific performance, the Court pointed out that without an urgent remedy the applicant in this matter will suffer financial prejudice which cannot be substantially redressed by a remedy in due course. Further on the issue of specific performance, the Court upon closer inspection of the contract between the parties, noted that it was apparent that the contract contains no “entire agreement clause” stating that, “this contract contains the entire agreement between the parties”. The written offer of employment made by the respondent on 29-01-2024 specifically stated that the offer was “subject to (…) the conditions set out in your contract of employment which will be sent once acceptance has been received”.
The Court also noted that the offer of employment was always subject to criminal checks being clear, and a revelation that the applicant’s criminal checks were not clear would immediately terminate the contract. Furthermore, it was noted that the respondent did not deny that the applicant’s criminal record has been expunged. The Court pointed out that “previous convictions expunged under Criminal Procedure Act, 1977 (CPA) are not deemed to have never taken place, at least not for the purposes of contract law”. Thus, the respondent was entitled to invoke the resolutive condition, and therefore did not repudiate the applicant’s contract of employment. Accordingly, the Court found that the applicant’s claim for specific performance had failed.
Vis-à-vis claim of unfair discrimination, the Court noted that unfair discrimination under Sections 6 and 50 of the EEA contemplates a remedy that is less fundamentally ex post facto in nature. The Court further noted that Sections 6 and 9 of the EEA state that no person may unfairly discriminate against an applicant for employment on an arbitrary ground. The Court further took note of the relevant provisions of Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices which strongly suggest that excluding an applicant from employment on the basis of 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 (within the normal meaning of the word) because the decision would be without rational justification.
Considering that whether it was an inherent requirement of the job for the respondent’s Senior Data Discovery and Enrichment Expert I to be able to demonstrate a clear criminal check and, would the applicant’s criminal history have in any way affected his ability to do his job, the Court noted that on the papers, there was no indication that the position of Senior Data Discovery and Enrichment Expert I requires any significant amount of trust and honesty, and certainly not so much that the possibility of the applicant’s rehabilitation should be completed disregarded. “The applicant will conduct his work from his home whereas the respondent’s main offices are in Durban. The applicant will do his job over the internet using his own resources. It stretches credulity to imagine that the applicant will sit at home and maliciously miscategorise legal information for his own benefit”.
Therefore, the Court found that in the instant case, the applicant’s criminal history did not hold relevance to the job which the respondent had denied him.
Based on the afore-stated assessment, the Court directed the respondent to employ the applicant as a Senior Data Discovery and Enrichment Expert I on the terms and condition set out in the written contract of employment concluded between the parties on 30-01-2024, except that the contract shall endure for a period of 9 months from the date of employment so specified in the order.
[Elsworth John O’ Connor v. Lexis Nexis (PTY) Ltd., Case no: P18/24, decided on 11-04-2024]
*Judgment by Justice Mark Meyerowitz, Acting Judge of the Labour Court
