The employment relationship is built on trust; it requires a degree of blind faith in the truth of a potential employee’s declarations in terms of, amongst other things, work experience, qualifications and criminal record. Alternatively, the employer could tip the scale towards facts by conducting background checks.

A recent (2018) case is instructive. A family employed a domestic worker without conducting background checks. Two years after her employment the staffer was implicated in the kidnapping and an extortion attempt related to a child of the family that she worked for. Had the family conducted fairly routine criminal checks they would probably have not employed the nanny. This anecdote has wide implications for employment processes.

Background checks as a condition of employment:
The employer, be it a domestic household or a multinational corporation can, and should, make background checks, including criminal checks a condition of employment. The employer must make it clear that the recruitment process will not advance if the applicant is unwilling to submit to background checks. An easy way to do this is to have applicants complete an authorisation form as part of the application process. To be clear the applicant must agree to the background checks before they are conducted; failure to agree to that condition prevents the employer from conducting the checks and, if done correctly, prevents the employment of that person at that particular employer.

Relevance and applicability of the criminal record:
Does a criminal record automatically disqualify an applicant? Not necessarily. Remember that though agreeing to background checks may be a condition of employment, the discovery of a criminal record is not an automatic disqualifier. For various reasons the employer may choose to ignore the record in making an employment decision. The COVID-19 crisis is likely to make criminals of many people. Criminal infractions established in relation to the pandemic, though serious enough now, may not be a relevant indicator of employability in all potential roles in the future; some maybe, but not all. It is important to weigh up the seriousness and relevance of the infraction before drawing a conclusion on the candidate’s suitability. A government minister was recently fined for breaking a Covid-19 lockdown rule; she will not be dismissed though, as Company Rules(in this case the company is the Government of S.A) prescribe how criminal acts are treated in the employment relationship. There isn’t a one-size-fits-all rule. Employers must act fairly and within their own rules, and where specific rules do not exist, discretion must be applied, with a premium placed on fairness.

Remedies available to the employer in cases of dishonesty:
In G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55 (25 November 2016) the Labour Appeal Court upheld the dismissal of an employee decades after his (false) declaration that he did not have a criminal record. The employee had made the declaration in 1982! The Company had not conducted background checks at the time of employment, but had done so when the employee applied for another role. It turned out that he had racked up two criminal convictions prior to 1982. The case highlights two critical requirements; the need for a pre-employment declaration and the need for criminal checks. Just as important is the inference that employers can take disciplinary action in such matters.

Derrick Thalaivirsan
HR Support Services
Ad-hoc HR services for Small and Medium enterprises. Including HR Policy formulation, Training on, and chairing and initiation of discipline.

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