Skip to main content

Article 38/2025

Previous articles this year dealt with a zero-tolerance policy when tested positively for alcohol or drugs, as well as a zero-tolerance policy in respect of having tested positive for cannabis. In short, the courts hold the viewpoint that, by means of such policies, an employer is not permitted to create an absolute ‘no go zone’ and, furthermore, held that, at all given times, one of the fundamental questions to be asked, irrespective of the content of such zero-tolerance policy, is the effect of the drugs/alcohol/cannabis on the ability of the employee to do his/her job.

This is the third article this year dealing with a zero-tolerance policy. In this article, the scenario entails an employer in such policy adopting the viewpoint that, if an applicant for a job has a criminal record, such applicant is automatically disqualified, or, alternatively, if such criminal record has been established and the parties have concluded an employment contract, the employer is entitled to automatically cancel such contract.

The above considerations came to the fore in Ellsworth John O’Connor v LexisNexis (Pty) Ltd (2024) 35 SALLR 124 (LC) and this article attempts to identify some of the relevant principles applicable in dealing with such a zero-tolerance policy.

_____________________________________

In the O’Connor judgment (supra), the applicant successfully applied for a job and, subsequently, concluded an employment contract with LexisNexis, subject to the resolutive condition that he should have a clean criminal record. Subsequent to such employment contract being established, the full extent of the criminal history of the employee was established.

This article only focuses on the principles as to whether or not such resolutive condition that led to the employment contract no longer being operative amounts to unfair discrimination on an arbitrary ground, namely, the criminal history of the employee.

The LC approached the aforesaid issue as follows:

  • is honesty, integrity, etc an inherent requirement for the job?
  • if such values are inherent requirements of the job, then the automatic non- qualification of an applicant for a job, or the automatic cancellation of a concluded employment contract, does not amount to unfair discrimination
  • in short, what the employer is relying upon is the defence as set out in s6(2)(b) of the EEA
  • on the other hand, if honesty, integrity, etc are not inherent requirements of the job, then the following considerations are applicable:
    • in terms of item 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices (the Code), no criminal checks are permitted unless they are relevant to the job: this restriction also applies to qualifications and credit preferences
    • in terms of item 17.3.6 of the Code, no collection of personal data, including criminal convictions, are permissible, except if they are directly relevant to employment decisions
  • what also has to be established is whether or not there is a rational connection between the zero-tolerance policy pertaining to criminal records and the purpose sought to be achieved through this restriction – the LC had no problem in deciding that, if honesty, integrity, etc, are not inherent requirements of the job, then the abovementioned automatic non-qualification and automatic cancellation is not rationally justified in terms of Law Society of South Africa and Others v President of the Republic of South Africa and Others (2019) 2 SA 30 (CC)
  • in conclusion, in applying the test as set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (as applied in Naidoo v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC)), the LC held that, in the circumstances in casu, the non-employment of an applicant and the resolutive condition becoming operative as a result of the employee’s criminal record, constitutes unfair discrimination on an arbitrary ground, seeing that:
    • such ground has attributes or characteristics with the potential to impair human dignity, or
    • such ground affects the employee adversely in a manner comparable to discrimination on a listed ground
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?