FAILURE TO DISCLOSE A CRIMINAL RECORD

Trust carries substantial weight and is the cornerstone of the employment relationship. The Employment Equity Act regulates what information an employer may request from an employee during the application process and subsequently whilst being employed. The Act however also makes provision for employers to ask applicants or prospective employees about their criminal background.

Should the applicant apply for a position and disclose their criminal record, the Employment Equity Act protects these applicants against discrimination based on their criminal record as employers have to ensure they implement a fair recruitment process. Disqualifying applicants from the application process due to their criminal records could be seen as automatic disqualification which is discriminatory.

However, if an applicant fails to disclose their criminal record, and it comes to light after the employee had been employed, this could be seen as dishonest conduct. As in the case G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55 (25 November 2016). During his application process, the employee stated that he did not have a criminal record. He worked in his role as a security guard for 14 years until applying for a promotion. The company conducted a criminal record check which revealed that the employee had a criminal record for two convictions in 1982 and 1991 respectively. Based on subsequent disciplinary action, the employee was dismissed. The matter was referred to the CCMA and thereafter to the Labour Court and in both instances, it was ruled that the dismissal was unfair. However, the Labour Appeal Court upheld the employers’ appeal. 

Judge Savage AJA, upheld the employers’ appeal and stated that: “The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely.
 
Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”. Obtaining employment on false pretences whether by misrepresenting qualifications, skills, experience or prior work history has been found to justify dismissal, with it confirmed in Boss Logistics v Phopi and others that if this were not so, a sanction short of dismissal would only serve to reward dishonesty.
 
Thus due to the above case, employers could dismiss employees for non-disclosure of criminal records during their application process. Employers are however still cautioned to not discriminate against employees due to disclosed petty criminal acts and each case must be viewed on its own merits.
 
It is further suggested that employers have a suitable application process in place where applicants are requested to disclose if they have a criminal record and should they have such a record to provide details of the case, such as the date and place of conviction and the sentence but no more than this. It is also recommended that a clause be added to the application process to state that all the information given by the applicant is true and correct, that omissions could disqualify them from the process and that the company may do criminal record checks.
 
Invictus Group is able to assist companies with the necessary advice so that all procedures and legalities are complied with. Contact Invictus Group on 0861 737 263 for us to assist you.

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