SIYABONGA HADEBE: Hope for jobseekers with expunged criminal records

The eradication of unfair discrimination from workplace practices was fundamental in crafting the new employment framework outlined by the constitution and the Labour Relations Act, which has a framework now upheld by the Employment Equity Act.

Though race and gender have traditionally been the primary grounds for unfair discrimination claims, the courts are empowered to adjudicate on all sorts of discrimination prohibited by legislation. On April 11, the labour court declared criminal conviction arbitrary grounds for discrimination. The case sheds light on the broader scope of discriminatory practices and underscores the judiciary’s mandate to address them comprehensively.

In O’Connor v LexisNexis, the labour court upheld the rights of individuals with criminal histories to seek employment without the burden of outdated convictions. The ruling sends a strong message about the importance of second chances and stereotypes that can lock people out of the workforce.

This issue hits close to home. A friend from university, Motshwene Motshwene, studied to become a psychologist. But a youthful mistake — a shoplifting incident years ago — left him with a criminal record. He went to many places around Gauteng to try to resolve the situation. Many years later he was told that his case had been expunged under section 271B of the Criminal Procedure Act. Still, his past sin continued to haunt him.

Frustratingly, Motshwene’s police clearance certificate would not reflect the expungement, leaving potential employers with a skewed picture. That, coupled with SA’s sluggish expungement process, in effect barred him from accessing crucial training opportunities and employment in his chosen field.

Motshwene’s story highlights the limitations of the system. Even with expungement, outdated information can resurface, creating hurdles for those seeking to reintegrate into society. Now, O’Connor v LexisNexis offers a glimmer of hope.

Despite disclosing an expunged conviction from 2001, Elsworth O’Connor, the plaintiff, was denied employment by LexisNexis when it discovered past offences of theft, fraud and defeating the course of justice — despite the potential employer having earlier extended him a job offer by email. The labour court supported O’Connor’s claim and ordered LexisNexis to honour its job offer, as the conviction was ruled an arbitrary ground of discrimination.

The court’s powerful statement underscored the core principle of the country’s justice system: “Our criminal justice system is premised on the idea that once the criminal has paid their debt to society, that person must be allowed back into society. To deny that person their right to freely participate in society with dignity is to deny them their constitutional rights as a person.”

Crucially, the court assessed the relevance of O’Connor’s criminal history to the requirements of his job as a senior data discovery and enrichment expert. Considering that he would be working remotely from home and his past offences were unrelated to his present position, the court concluded his criminal record should not preclude him from employment.

In other words, the court ruled that O’Connor’s prior criminal record was irrelevant to the demands of his position. Consequently, LexisNexis was mandated to hire the applicant within 10 days of the court’s order.

Unfair exclusion

The court’s ruling challenges the tendency to make blanket judgments, which can unfairly exclude people from the job market long after they have made amends. It also underscores the principles of fairness and non-discrimination in employment practices, particularly when past offences are irrelevant to the job’s responsibilities.

SA’s high unemployment rate and legacy of inequality demand solutions that break down barriers. This decision sets a precedent, reminding employers that everyone deserves an opportunity to work if they meet the minimum job requirements, including qualifications, skills and experience.

The case is a win for fairness and a step towards creating a more inclusive economy where individuals are judged on their present ability, not solely on their past mistakes.

Notwithstanding the positive outcome, Motshwene’s experience demonstrates the repercussions of an ineffective justice system in dealing with expungements of petty crimes. This system can still create problems for jobseekers in a country where access to the courts remains largely a privilege of the haves. This leads to victimisation and discrimination against those seeking reinstatement, particularly black youths from impoverished backgrounds.

The labour court’s decision in O’Connor v LexisNexis is a significant step in addressing the systemic barriers individuals with criminal records face. It serves as a beacon of hope for countless South Africans striving to rebuild their lives and contribute meaningfully to society, free from the shackles of past errors.

• Hadebe is an independent commentator on socioeconomic, political and global issues.