EREMY MAGGS: I want to stay with crime now. Individuals with a criminal record may be faced with significant challenges when seeking employment, I think that’s a given. Here in South Africa, employers may legally exclude an applicant from consideration for a position if having a clean criminal record is what is termed an inherent requirement of the job. That phrase, inherent requirement, is important, but what exactly does that mean, and when can an applicant be lawfully excluded for having a criminal record?

This issue has been considered in the labour court and a decision handed down in the case O’Connor versus LexisNexis. I’m going to explore that in a little more detail now with labour attorney, Patrick Deale. Patrick, welcome to you, and maybe just as a starting point, very simply, why is this case so important?

PATRICK DEALE: It’s significant, mainly because at a high level, what it does is consider conflicting legal and moral dilemmas in society, at an individual level, an employer level, and at a society level. The relationship in any employment relationship really is between the employer, on the one hand, the individual employee in the context of wider society and the wider society is represented by laws, which are underpinned by morals and principles.

In this case, it has to do with whether or not an employee, who has a criminal record, can be disqualified from getting a job and on what basis they can be disqualified and whether it’s justified or not. So that is the overall idea that lies beneath this particular case.

The idea of discrimination is found in various (statutes), it’s in the Constitution, it’s in the Employment Equity Act, and the Employment Equity Act says that an employee cannot be discriminated against on two bases.

The first is on the basis of listed grounds for discrimination, and those listed grounds are the familiar ones, they are things like you can’t discriminate against people on the basis of race, gender, sex, family, ethnic or social origin and so on. So those are the known bases for discrimination that society generally accepts.

But there are other bases upon which employees may potentially be discriminated against and that is on what they call arbitrary grounds. Arbitrary grounds are things that are not listed and if it’s a case of an arbitrary ground, the employee who says, I’ve been dismissed from an arbitrary ground, has to say, explain what is that arbitrary ground and for the employer to be able to defend it. An arbitrary ground could be something, as the name suggests, something that is not in the list, but could be something, I’m not going to employ you because you’ve got red hair or something like that, which is miles away from ethnic or racial distinctions, characteristics of a person.

So the idea of discrimination [is] that it offends the dignity of the individual.

The case that we are talking about involved this individual, this fellow (O’Connor) applied for a remote work job at LexisNexis and he was (quizzed) on the interview, he passed on the merits of getting the case, and he was asked in the preliminary interview whether he had any criminal record and he said, yes for theft, I do have a criminal record for theft, but it was 20 years ago. LexisNexis said, well, okay, we’re going to accept you, but it’s subject to a criminal check. Which is quite a standard thing, so it was subject to what else came out of the check and when they checked, they said, you did have a criminal record for theft, but it was a lot more than that.

It sounds a lot more that anyway, because there were six counts of theft, one of fraud and defeating the ends of justice.

So it was a lot more magnified than that and based on that, the employer said, no, we can’t accept this, this basically is more serious than we anticipated when you initially

interviewed with us and you told us about that. So on that basis, they did not get into a contract with him. In other words, they would not employ him.

The court decided that actually that was unfair, that was discrimination and that LexisNexis had discriminated (against) him because it was arbitrary to say that a requirement of a clean record was an inherent requirement of the job and, in fact, it was not an inherent requirement of the job. So those are the two bases upon which the court decided it.

JEREMY MAGGS: So explain to me then, in what way this is precedent setting and how the ruling could influence future employer policies on criminal background checks?

PATRICK DEALE: Well, it could be actually a very important precedent in the sense that ultimately what this case should have been cited on, I think the focus of the case should have been decided on, this is why it needs to go higher to get a more definite or clearer ruling on all of the issues on these moral dilemmas, versus, for example, fairness versus unfairness and trust versus honesty.

Trust versus honesty really lies at the heart of every employment relationship and that was I think what the fault in this judgment was, is that the court found that because the person was working remotely and even though the person had a criminal record for dishonesty-related crimes like fraud and theft and so on, he was working remotely. There was not a great need for the employer to fear that he could be untrustworthy.

In other words, they were in a way saying to the employer that you are worrying too much about this thing. We don’t think that you should be worrying about the trustworthiness. So we are going to make a decision, that it’s for us to decide whether you worried unnecessarily about the trust. So the case should have been what would the impact of the criminal conviction 20 years ago have had on the ability of the employer to trust the applicant, and quite clearly the employer did not trust the applicant.

No matter what a court might say, they did not trust this employee because of the record and because the employee had not fully disclosed at the preliminary interview the extent of the severity of the crimes that he’d committed.

I don’t think that an external court can determine whether or not an employer should or should not trust an individual. I think that lies at the heart of the problem that comes out of this thing and that’s what the precedent is that could be problematic in future, where you have a court deciding whether or not an employer can trust an employee at inception of employment and decide not to employ that person. This is where the tricky moral dilemmas come in because the ability, there’s a saying, as you know, beauty is in the eye of the beholder, but trust is in the mind of the beholder.

Provided that the reason for the mistrust is rational in some way, it’s not arbitrary. I think it was not correct to find that it was arbitrary because it’s rational that a person who has a criminal record, this dishonesty record, and you’re going to work in an employment relationship, which is underpinned by honesty. That’s perfectly rational to me, it’s not arbitrary and it is an inherent requirement of the job, secondly. So I think that the judgment in this could be tested or should be tested on this so that it’s not the final say on it to set a precedent for the future.

JEREMY MAGGS: Patrick Deale, I am going to leave it there and thank you very much indeed for the explanation on what is, as you say, a very important case. V.5321

I recently renewed my passport at Home Affairs in a bank branch and was very impressed with the service and quick turnaround time. The Department of Home Affairs (DHA) and major banks first launched the option to do Smart ID card and passport applications via select bank branches in 2016. It has slowly grown to around 30 locations, including branches from Absa, Discovery Bank, FNB, Investec, Nedbank, and Standard Bank. My passport was set to expire in October 2024, and because many countries require that your passport be valid for six months from a travel date, a renewal was due. V.5324
Click here for full article

DA MP says this is up 20 000 from the 74 000 six months previously Department of Home Affairs visa backlog is up by 20 000 in 6 months The Democratic Alliance (DA) can reveal that the Department of Home Affairs (DHA) Visa backlog has increased from 74 000 in August 2023 to 92 000 as of 16 February 2024. This is an increase of just under 20 000 in about 6 months. Download the Parliamentary question and answer here. The increase goes against what the Minister told the Home Affairs Parliamentary Committee in March 2023. V.5325
Click here for full article

The European Union (EU) will limit visas for people from Ethiopia. This is because the Ethiopian government hasn`t been helping take back citizens who stay in the EU illegally. The EU Council announced this in a statement on Monday. Ethiopians won`t get visas for multiple entries anymore. Also, Ethiopians with diplomatic and service passports won`t have their visa fees waived. V.5326
Click here for full article

CRIMINAL convictions more than two decades ago came to haunt a man who was offered a job as a senior data discovery and enrichment expert, but after his prospective employer got wind of the convictions, retracted the job offer. But the Gqeberha Labour Court came to his rescue and found that the man should be given a second chance, given that his convictions occurred 20 years ago and had meanwhile been expunged. V.5327
Click here for full article

Nigeria’s economy, which ranked as Africa’s largest in 2022, is set to slip to fourth place this year and Egypt, which held the top position in 2023, is projected to fall to second behind South Africa after a series of currency devaluations, International Monetary Fund forecasts show. The IMF’s World Economic Outlook estimates Nigeria’s gross domestic product at $253 billion based on current prices this year, lagging energy-rich Algeria at $267 billion, Egypt at $348 billion and South Africa at $373 billion. V.5328
Click here for full article

There are fears that more people will be separated by the introduction of a minimum salary level for those wanting UK family visas. Families living in the UK and abroad have raised concerns about what new rules will mean for them as they try to reunite with foreign spouses. In December, the Home Office, which says migration to the UK is too high, announced a package of measures to reduce net migration, following a spike in arrival numbers. V.5318
Click here for full article

An Ethiopian asylum seeker, who does not speak English, claims he was duped by a senior immigration official into paying an admission of guilt fine when he thought he was paying for bail.Two Western Cape High Court judges have condemned the official`s `deplorable` behaviour, set aside the fine, and ordered the immigration official be taken off the case. Tsegaye Esyas claims Annelise van Dyk treated him like an animal which led to him attempt suicide while in police cells. V.5320
Click here for full article

As a South African who has adopted a nomadic work lifestyle alongside my wife, Ingrid Lotze, I’ve been an interested observer of South Africa’s snail-pace digital nomad visa (DNV) development process. Despite the optimism surrounding its introduction, the visa seems to miss several crucial marks for digital nomads like us. V.5322
Click here for full article

DA MP says hours lost continue to result in persons being unable to collect their ID documents due to unmanageable queues The DA has been inundated with complaints that the Department of Home Affairs (DHA) systems are offline, resulting in long queues and delayed processing of documents. Through questions posed to the Minister, the DA can now reveal that the DHA has lost over 77 years’ worth of working hours due to system downtime and load-shedding from 2019 to date. Concerningly, this data only relates to hours lost for the application of smart IDs, meaning decades more of working hours could have been additionally lost in other spheres such as passport or visa applications. V.5314
Click here for full article

Home Affairs’ seemingly endless court battles set the department back more than R110-million between April 2023 and the end of February this year. This was revealed in a written parliamentary response by minister Aaron Motsoaledi. He said the department accumulated a litigation bill of R117 692 996.3, higher than the R72 637 944.51 spent the year before. V.5315
Click here for full article