Obligation or discretion to disclose a criminal conviction when applying for employment?

The Labour Appeal Court [LAC] dealt with this issue in the case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & Others (2017) 38 ILJ 881 (LAC).

 

As per the head note of this case: “In 1996 the third respondent employee applied for employment as a security guard with the appellant security company. In the written application form he was asked. ‘Have you ever been convicted of a criminal offence? The employee indicated that he had not.

Fourteen years later, when the employee applied for a promotion, it came to light that he had two previous criminal convictions, one for rape in 1982 for which he received 6 lashes and one for assault in 1991 for which he paid a fine.

 

The employee was charged with misrepresentation and dishonesty and/or breach of the code of conduct in terms of the Private Security Industry Regulation Act 56 of 2001. He was dismissed.

 

At arbitration, the CCMA Commissioner found that the employee had not wilfully misrepresented the facts when he said that he was not aware that he had a criminal record and also found that the company could not rely on a breach of the PSIRA code because his criminal convictions fell outside the ten-year period prescribed by the Act. The commissioner concluded that the employee’s dismissal was unfair and awarded compensation.

 

On review, the Labour Court found that the employee had in fact committed misconduct in failing to disclose his criminal convictions in the 1996 application for employment, but that the circumstances did not justify dismissal for his dishonesty. The Court ordered the company to reinstate the employee.

 

On appeal, the Labour Appeal Court found that the evidence clearly showed that the employee knew that he had been convicted of criminal offences and that he chose not to disclose this when he was expressly asked to do so. He was employed on false pretences in circumstances in which he had deliberately concealed the true state of affairs from the company – his conduct was dishonest and constituted a serious breach of the company’s disciplinary code.

 

In spite of the absence of direct evidence showing a breakdown in the trust relationship and the company’s misplaced reliance on the provisions of the PSIRA, the court was satisfied that the sanction of dismissal was fair. The false misrepresentation made by the employee had been blatantly dishonest in circumstances where the company was entitled as an operational imperative to rely on honesty and full disclosure by its potential employees. The misrepresentation induced employment and when discovered, was met with an absence of remorse by the employee. The fact that a long period had elapsed since the misrepresentation, during which time the employee had rendered long service without disciplinary infraction, while a relevant consideration, did not compel a different result. This was so because the fact that dishonesty had been concealed for an extended period did not in itself negate the seriousness of the misconduct or justify its different treatment.

The court therefore found that the company had been entitled to cancel the employment contract and dismiss the employee. It accordingly upheld the appeal”.

 

In a nutshell, employees are cautioned to disclose relevant and pertinent information honestly, especially when specifically asked a question in the employment application form. To do anything less may be seen as an act of dishonesty and could lead to disciplinary action and ultimately warrant dismissal.

 

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