To what extent is a job applicant obligated to reveal to a prospective employer, that they have a criminal record?  Is a job applicant obligated to reveal to a prospective employer, that they have a criminal record?  To what extent are employers able to fairly discriminate against job applicants with criminal records?

These are vexed questions which employers, and indeed employees, face on occasion.

To begin with, there is no doubt that employers should have recruitment and selection policies and procedures which clearly obligate job applicants to reveal all information pertinent to their application, and highlighting that any material omissions in a CV or application form, would place any subsequent employment with the company at risk.

Best practice in this regard would, for example, include the incorporation of a declaratory in the employer’s application form, that the job applicant has not omitted any information that would be material to the employer being in a position to make a rationale decision regarding the employability of the applicant, in full knowledge of the fact that the employer will have recourse, should material non-disclosure on the part of the applicant come to light.

This was precisely the issue addressed in the Cape Town Labour Appeal Court (“LAC”) judgment in G4S Secure Solutions SA (Pty) Ltd v Commissioner Anthony Ruggiero & others (Case Number CA2/2015).

The employee, a security guard, had been employed by the employer in 1996.  At that time, he was asked in a written application form “have you ever been convicted of a criminal offence?”.  The employee indicated that he had not, and he was subsequently employed by the employer.

However, fourteen years later, on 10 July 2010, the employee applied for an internal promotion, and after a criminal check had been conducted, it was established that the employee had two previous criminal convictions.  One for rape when he was seventeen years old, for which he received six lashes, and another for assault with intent to do grievous bodily harm, for which he paid a fine of R200.00.

The employer responded to these revelations by issuing the employee a notice to attend a disciplinary hearing, alleging “misrepresentation and/or dishonesty concerning an application for employment and/or breach of PSIRA Regulations Code of Good Conduct”.  The employer’s disciplinary code specified that an offence of “dishonesty concerning an application for employment … occurs where information provided in support of an application for employment is subsequently found to be false, and such information has a material effect on the employee/employer trust relationship”.

At the disciplinary hearing, the employee, inter alia, stated that he did not know that he had a criminal record as he had not gone to jail.  The employee was found guilty, and dismissed.

The employee challenged the fairness of his dismissal at the CCMA, originally seeking reinstatement, and subsequently amending his remedy sought, to compensation.  At the CCMA arbitration hearing, the Commissioner was “not convinced that the (employee) contravened the rule” or, as noted in the LAC judgment “that he had misrepresented himself in his 1996 application for employment given that he was not aware that he had a criminal record at the time”.

Importantly, the employee also argued that he could not be found guilty of a contravention of the PSIRA Code of Conduct, as it had only come into effect more than 10 years after his convictions.

The Commissioner continued that he found it plausible that the employee had not willfully misrepresented the facts.  The Commissioner held that the dismissal of the employee was therefore substantively unfair, and held that the employee was to be reinstated, with two-months compensation.

At the subsequent Labour Court review, the Labour Court found it “difficult to understand how the arbitrator could reasonably have concluded the (employee) was unaware of the status of his criminal record and could have denied having any criminal conviction”. However, the Labour Court further held that whilst the employee had committed the misconduct, his dismissal was unfair, and ordered retrospective reinstatement.

The LAC held a different view on this case at the appeal.  The LAC ordered that the appeal was successful, and that the dismissal of the employee was in fact substantively fair.

According to the LAC, “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”.

The judgment continued that “A conviction of rape and assault is antithetical to employment in the position of a security guard given the nature of that position”.

Finally, the LAC noted that our courts have reiterated that whilst long service is ordinarily a compelling mitigating factor when contemplating a sanction, “there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal … one such act of misconduct is gross dishonesty”.