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.
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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
