UNFAIR DISCRIMINATION UNDER THE EEA – WHETHER REFUSAL TO EMPLOY BECAUSE OF CRIMINAL HISTORY CONSTITUTE UNFAIR DISCRIMINATION BASED ON ARBITRARY GROUND?
The above question confronted the Labour Court seating at Gqeberha in an Urgent Application brought by Mr Elsworth John O’ Connor against LexisNexis (PTY) LTD under case title of the same name, Elsworth John O’ Connor v/s LexisNexis (PTY) LTD Case no: P18/24 (LC). Because of urgency of the matter, the Elsworth decision was heard on 19 March 2024 and Judgement delivered on 11 April 2024, and the facts of the case appears hereunder.
THE FACTS:
The Applicant is Mr Elsworth O’Connor, and the Respondent is the well-known publisher of legal and other academic texts, LexisNexis. At the beginning of 2024 the Respondent offered the Applicant a job but, when it discovered that the Applicant had a criminal history, the Respondent retracted the Offer of Employment. During December 2023 the Respondent advertised a position it wanted to fill in its taxonomy team. The position was for a “Senior Data Discovery and Enrichment Expert I” which job entailed, inter alia, organising and classifying the information published in the Respondent’s various legal products. The Applicant applied for the position.
On 20 January 2024, the Respondent’s company 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 filing out a “RefCheck Consent and Indemnity Form.”
When filing “RefCheck Consent and Indemnity Form,” the Applicant responded “yes” to a question in relation to whether he had ever been criminally charged and again answered “yes” in relation to the details of charge / conviction. He further stated that the offence for which he was convicted of in 2001 is theft which has since been expunged. He furthermore provided his fingerprints at a local PostNet for the purposes of the Respondent conducting a criminal background check.
Thereafter the Respondent offered him a Contract of Employment, which he then accepted. The parties therefore concluded a written Contract of Employment, which they duly signed.
On 6 February 2024, the Respondent emailed the Applicant stating that it 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 then approached the CCMA and later the Labour Court.
Although the Applicant raised few issues in the Labour Court, this article will limit itself to the question on whether refusal to employ because of criminal history constitute unfair discrimination based on arbitrary ground.
THE LEGAL QUESTION RAISED IN THE LABOUR COURT:
Although the Applicant raised other issues in the Labour Court, namely, that firstly 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 the LRA, alternatively that the Respondent’s conduct constituted a simple unfair dismissal in terms of Section 188 and secondly that by retracting its Offer the Respondent repudiated the Contract of Employment, this article will only limit itself to the third alternative question raised by the Applicant, namely whether refusal to employ because of criminal history constitute unfair discrimination based on arbitrary ground?
THE DECISION OF THE LABOUR COURT:
It was the Applicant claim that by retracting its offer the Respondent unfairly discriminated against him on the arbitrary ground of past criminal convictions within the meaning of Section 6 of the Employment Equity Act (“EEA”).
Section 6 of the EEA provides that;
(1) of the EEA provides that no person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice on one or more grounds. Including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.
(2) It is not unfair discrimination to-
(a) take affirmative action measures consistent with the purpose of this Act: or
(b) distinguish. exclude or prefer any person on the basis of an inherent requirement of a job.
(3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (I).
The Court per acting Labour Court Judge Mark Meyerowitz examined several authorities on the subject-matter, which included amongst others paragraph 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices (the Code). The Code 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 paragraph 17.3.6 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.”
The Court reasoned (without making any finding) that convictions for which the Applicant was convicted off, might preclude him from taking up positions that require trust and honesty. The Court further noted that on the papers before it, there is no indication that the position of Senior Data Discovery and Enrichment Expert I requires any significant amount of trust and honesty, and simultaneously cautioned that Applicant’s rehabilitation should not be completely disregarded.
The Court noted and ruled further that, the Applicant will conduct his work from his home in Komani (previously Queenstown), whereas the Respondent’s main offices are in Durban, and as a result he will do his job over the internet using his own resources. It is therefore unlikely that he will sit at home and maliciously miscategorise legal information for his own benefit.
In essence the Court found that the Applicant’s criminal history is not relevant to the job which the Respondent has denied him.
In conclusion and handing judgement in favour of the Applicant the Court ruled 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, constitutes unfair discrimination within the meaning of section 6 of the EEA.
CONCLUSION:
It must therefore be noted that not every position advertised in the job market with a criminal verification checks as a prerequisite will automatically disqualify incumbents from the advertised posts upon positive criminal backgrounds checks returns. Generally each case must be treated according to its own merits with due regard being given to the incumbents criminal history relevancy to the advertised posts. This position is in line with section 6 (2) (b) of the EEA.