To Declare or Not: Previous Criminal Convictions

Jun 20, 2024

The discloser or non-disclosure of previous criminal records was mentioned but not ruled on in Moropene v Competition Commission of South Africa and Others (JA129/2022) [2024] ZALAC 14 (26 April 2024).  In this matter the Employee was dismissed, without a disciplinary hearing, for his failure to declare his previous criminal convictions to his employer.  The matter did not turn on the non-disclosure of the previous convictions, it turned on the effect and force of the agreement reached between the parties prior to the termination of employment. 

Facts were that the employee started as a junior and that these criminal convictions would not then have had an influence.  As the employee advanced to the positions of

Senior Legal Counsel in the Legal Services Division and Principal Investigator in the Cartel’s Division the previous criminal convictions would have disqualified him.  When asked why he should not be dismissed for this non-disclosure the employer was informed that the employee’s criminal record was already expunged, in terms of section 271B of the Criminal Procedure Act, prior to these senior positions being advertised.

 

Expungement Of Criminal Records

It is important to note that there is no automatic expungement of criminal records in our law.  Section 271B of the Criminal Procedures Act (51 of 1977) reads.

‘(1)(a) Where a court has imposed any of the following sentences on, or has made any of the following orders in respect of, a person convicted of an offence, the  criminal record  of that person, containing the conviction and sentence or order in question, must, subject to paragraph (b) and subsection (2) and section 271D, on the person’s written application, be expunged after a period of 10 years has elapsed after the date of conviction for that offence, unless during that period the person in question has been convicted of an offence and has been sentenced to a period of imprisonment without the option of a fine…

(2) The Director–General: Justice and Constitutional Development must, on receipt of the written application of a person referred to in subsection (1), issue a certificate of expungement, directing that the criminal record of that person be expunged, if the Director–General is satisfied that the person applying for expungement complies with the criteria set out in subsection (1).

(3) The Director-General: Justice and Constitutional Development must submit every certificate of expungement that has been issued as provided for in subsection (2) to the head of the Criminal Record Centre of the South African Police Service, to be dealt with in accordance with section 271D.’

 

Is There an Obligation To Declare

The obligation to declare was considered in Eskom Holdings Ltd v Fipaza and Others (JA 56/10) [2012] ZALAC 40; [2013] 4 BLLR 327 (LAC); (2013) 34 ILJ 549 (LAC) (3 October 2012).  The Employer acknowledged that Fipaza disclosed in her CV her previous employment with the Employer.  She did not disclose, either in her CV or during her interview that she had been dismissed by this employer for misconduct.  According to the Employer, even if she was not specifically asked about the reason(s) for her leaving the employer’s employ, she had a duty to disclose the cause for leaving in 2006. 

The court evaluated what one could expect to find in a CV and stated: “According to the dictionary meaning, a resume or curriculum vitae (the CV) refers to ‘a brief account of one’s life or career, especially as required in an application for employment”.  The court stated that it is not a requirement that a CV should provide reasons for leaving previous employment.  It is a sort of document whereby a job seeker aims to advertise or market himself or herself concisely and succinctly to potential or prospective employers.  It is a personal advertisement for purposes of seeking employment.  On this simple definition it would appear that the information provided by Fipaza in her CV was more than adequate for its purpose.  The Employer conceded that Fipaza completed the recruitment form fully and correctly.  She was only blamed for not disclosing the fact that, in 2006, she was dismissed by the Employer for misconduct.  In other words, she was accused of willful and/or fraudulent misrepresentation.  The court did not find a contractual basis in the recruitment form or the employment contract to obliged Fipaza to have disclosed the reason of her 2006 dismissal. 

The court highlighted that Fipaza could not have been guilty of withholding information as the employer she applied with now is the same employer who dismissed her and they should have record of it.  It is expected from an employer to do their background checks before making an offer of employment. 

The court referred to the representation of Fipaza, where she stated that her dismissal in 2006 had absolutely nothing to do with dishonest or immoral behaviour on her part.  In Sidumo, the Constitutional Court observed ‘… the commissioner cannot be faulted for considering the absence of dishonesty a relevant factor in relation to the misconduct simply because ‘[t]he absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal. 

The court agreed that the fact that Fipaza was, in 2006, dismissed for ‘misconduct’ did not justify a carte blanche conclusion that her integrity level was not up to standard.  It is clear that the circumstances surrounding her failure then to report for duty timeously were somewhat unique, although these did not serve to exonerate her from blame, hence she was charged for misconduct and convicted accordingly.  However, without more ado, the fact that the misconduct did not involve dishonesty, this was a significant factor which, in my view, would tend to militate against the finding of an irreconcilable breakdown in trust relationship. 

The court stated that “However, in my view, on the facts of this case, there was no legal or contractual duty on Fipaza to have disclosed the circumstances under which she left the employ of the appellant in 2006, either in her CV, in the recruitment form or during her interview.”  Further, “In my conclusion, Fipaza sufficiently complied with what was reasonably expected or required of her to do in terms of the contract and the law. She owed no further duty, either ex contractu or ex lege, to disclose to the interviewing panel that she was dismissed by the appellant for misconduct in 2006 because, as already stated, this information was not within her exclusive knowledge, but also within the knowledge of the appellant. To sum up, her ‘failure’ to mention to the appellant (as represented by the interviewing panel) anything about her 2006 dismissal did not, strictly speaking, amount to a material non-disclosure, as alleged by the appellant, but rather to a simple and immaterial omission on her part to remind the appellant of that fact, which, after all, was not necessary or compulsory of her to do. The word ‘disclose’ means ‘make secret or new information known…’  As I have alluded to earlier, in this instance there was simply no secret or new information pertinent to Fipaza’s previous employment with the appellant which was to the appellant unknown and which, therefore, warranted Fipaza to disclose.”

 

To Do for Employers

Employers are more and more under pressure from clients to prove that their employees have “clean” criminal records.  The employer then needs to provide a “police clearance” in this regard.  It takes time to obtain these clearances and no prospective employee will be able to wait that long for employment.  While, requesting the “clearance” after the fact may be too late as the employee will then already be appointed.

The proposal is to:

  1. Make appointment of the employee subject to a clean criminal record;
  2. Have the employee declare, in writing, at the interview:
    1. If they have any criminal record;
    2. Confirm that supplying false information in their CV or this document will lead to summary dismissal.

Should an applicant declare that they have a criminal record, it will disqualify the person from appointment.  Should the applicant lie in respect of the criminal record, that will constitute a valid reason for dismissal.

Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Thys Giliomee

Thys Giliomee is a Labour Consultant at LabourMan Consultants.

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