In the matter of CONNOR V LEXISNEXIS (PTY) LTD (P18/24) [2024] ZALCPE 11 (11 APRIL 2024) the Labour Court ruled that not all criminal convictions are reason to exclude someone from employment opportunities.nbsp;
The employee applied for a job as a Senior Data Discovery and Enrichment Expert with the employer. On 20 January 2024, the employer emailed the employee saying that his interview had been positive and that the employer required further information from the employee to continue processing the application.
This information included filling out a “RefCheck Consent and Indemnity Form” which the employee submitted the following day.
When filling out the above-mentioned form, the employee responded “yes” when asked if he had ever been criminally charged. In response to the section “If yes, details of charge/conviction”, the employee filled out the available space by saying “For theft in 2001 which has been expunged…”.
On 29 January 2024, the employer sent the employee an email confirming the offer of employment of a 9 month contract. It further stated that the offer was subject to RefCheck verifying all your credentials as valid, criminal checks being clear and a positive reference from a previous employer.’
The employee accepted the offer on the same day and on 30 January 2024, the employer emailed the employee a contract of employment and the document was signed electronically by both parties.
However, on 6 February 2024, the employer emailed the employee stating that the employer 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 employee responded by explaining that these convictions took place 20 years ago and that his criminal record had been expunged. There was never any response from the employer.
The employee referred a dispute to the CCMA. The employer did not attend the conciliation and the commissioner issued a certificate of non-resolution.
On 8 March 2024, the employee sought an urgent order from the Labour Court (LC) to compel the employer to honour its original offer of employment, which the employer retracted after discovering the employee’s criminal history.
He invoked various provisions of the LRA, BCEA, and the EEA and claimed that the employer’s conduct constituted unfair dismissal, unfair discrimination, and repudiation of contract.
The LC accepted the employee’s claim for unfair discrimination, finding that the employer unfairly discriminated against him on the basis of his criminal history, which was irrelevant to the requirements of the job.
The LC ordered the employer to employ the employee on the terms and conditions of the original contract, subject to a modification of the duration of the contract to reflect the time that had elapsed since the retraction of the offer.
In summary, the criminal conviction should be relevant to the job on offer in order to exclude the candidate from employment.
