Azra Hoosen | ah@radioislam.co.za
25 April 2024 | 15:00 CAT
2 min read

In a recent ruling, the Labour Court affirmed the rights of individuals with past criminal records, stating that they should be able to pursue employment opportunities without fear of discrimination based on outdated convictions. The court mandated an employer to rehire an employee, emphasising that the individual’s prior criminal history was deemed irrelevant to the job’s qualifications.

Labour lawyer Michael Bagraim discussed the implications of this judgment in an interview with Radio Islam.

Bagraim applauds the decision by SA labour law. “Unlike almost every other country in the world, an applicant for a job in South Africa qualifies for rights. It was fashioned very quickly and easily because of our history with apartheid, in that you cannot discriminate against someone who applies for jobs. In the LRA, there are rights given to any applicant who applies for a job, with the most important being discrimination. You cannot discriminate against someone on arbitrary grounds, one of which is the criminal record they might hold. It is not an issue in most cases, but often, employers have in their terms and conditions that you can’t have a criminal record,” he said.

Bagraim offered further insights into the pivotal case of Connor v LexisNexis [2024], which has reshaped the landscape regarding the exclusion of job applicants due to their criminal records.

Elsworth John O’Connor applied for a job at LexisNexis and was initially accepted, but the offer was retracted upon discovering his expunged criminal record. O’Connor contested the decision at the CCMA, but LexisNexis did not attend the conciliation. Taking the matter to the Labour Court, O’Connor argued that his criminal history was irrelevant to the job requirements. Acting judge Mark Meyerowitz agreed, stating that denying someone employment based on an expunged record constitutes unfair discrimination. LexisNexis was ordered to employ O’Connor within 10 days of the judgment.

According to Bagraim, if an individual suspects that their job application rejection was based on factors such as race, gender, or undue focus on their criminal record rather than their qualifications, they have the right to bypass corporate barriers and directly approach the CCMA for resolution.

Bagraim emphasised the importance of disclosing any criminal record during job interviews.

The ruling underscores the importance of employers adopting a discerning approach to hiring practices, taking into account individual circumstances and the potential for rehabilitation.

LISTEN to the full interview with Ml Sulaimaan Ravat and Labour lawyer Michael Bagraim, here.