The validity of an employer fairly dismissing an employee based on the employee’s criminal record.

The discretion of hiring employees for a specific position in a company is up to the hiring committee / the employer responsible for the success of that position. In order to do so, all the relevant qualifications and requirements must be met for the specific position when the employee is considered. This includes investigating people’s criminal records if it is material to the position that needs to be filled,1 or requesting such information from the prospective employee. For example, if a person discloses that they were convicted of armed robbery in the past, the employer is required to consider such information if the new position is for a security guard.2

If it becomes apparent that the employee has failed to disclose their criminal record prior to being employed, it can amount to dishonest conduct and result in the employee being dismissed, as was found by the Labour Court in the case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others.3 The court stated that “the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely”.4 In this case, it would have benefitted the employee more if he had disclosed the nature of his criminal record as the tenure of his position at the company as well as the trust put in him at that time held great importance to the employer. The subsequent dishonesty about the nature of the employee’s criminal record indicated to the employer that the trust put in the employee had been broken, and that no professional relationship could be had further.

The obtaining of employment on false pretences, including falsifying the details of a criminal record, or not disclosing the contents thereof, will also amount to dismissal based on dishonest grounds as was found in the case of Boss Logistics v Phopi.5 Furthermore, the information included in the criminal record must also be examined to determine whether the crimes do suffice as lawful reasons for not employing a person or for valid ground of dismissal.

In the case of O’Connor v LexisNexis (Pty) Ltd6 the court found that even though the crimes found in the criminal record did amount to valid reasoning for dismissing the person, the crimes had been expunged by the time the matter went to court, as well as being 20 years old. The court further found that because of the nature of the position that the applicant was applying for, the nature of the employee’s criminal record was not relevant to the position and had no impact on the manner in which they were to conduct the role. The case therefore further proved that 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.7

In cases such as these, it is advisable to ensure that the employer have a system in place when opening applications for a new position in their company, and including the requirement of having the applicant grant the employer permission to view the respective criminal records, if it is of importance to the position needing to be filled. It is also advisable to inform the applicant that honesty during this process should be adhered to, as the future discovery of any criminal record or other relevant factors that were not disclosed initially may result in dismissal, as the trust relationship will subsequently be broken down. The employers will also be advised not to discriminate against employees due to disclosed petty criminal acts, and that each case must be viewed on its own merits.