A JOB applicant who confirms on employment that they do not have a criminal record had better be telling the truth.
If it is subsequently found that they were lying and that they did in fact have a criminal conviction, they run the risk of dismissal.
The recent (May 7, 2019) Labour Court judgment in Pamela Nomawethu Njikelana v Werner Kruger, the Commission for Conciliation, Mediation and Arbitration (CCMA) & the SA Civil Aviation Authority (Case number JR1834/17), dealt with this and related issues.
The employee had originally been employed as Human Resources generalist on a fixed term contract of employment from August 1, 2015 to July 31, 2016.

Thereafter, her contract was renewed on two consecutive occasions; the first from August 1, 2016 to December 31, 2016 and the second from January 1, 2017 to March 31, 2017.
Importantly, it was not disputed that before commencing employment with the employer, the employee had been required to undergo various pre-employment verification exercises for her qualifications, credit rating and criminal record.
During the course of her employment, in or about July 2016, the employer conducted a further criminal record check on the employee, which established that she in fact had a criminal record.

On October 10, 2016, the employee was invited to a meeting by the employer’s internal audit unit “during which she was requested to complete a forensic interview information sheet”, which she did, confirming once again that she had no past or pending criminal record against her.
When the employer informed the employee of the fact that they had recently established that there was a criminal record against her name, she denied any knowledge of any criminal record and undertook to approach the Pretoria Criminal Record Centre to check her criminal record status, where it was confirmed that she did indeed have a criminal record.
The “criminal record arose from an incident in 1990 when she was arrested and fined R150 for stealing sweets, chocolate and biltong”.
The employee then approached the Department of Justice to apply for the expungement of her criminal record.

The next key development in this case arose when the employee subsequently applied for a permanent Human Resources position, which the employer had advertised.
She was interviewed and requested to complete a declaration form, in which she disclosed her criminal record, which she corroborated in a separate affidavit.
Needless to say, the employer notified the employee that her application was unsuccessful.
Furthermore, her contract was not be renewed. The employee was aggrieved by this. She lodged an unfair dismissal claim with the CCMA on the basis that she had a reasonable expectation of renewal or permanent employment.
In his award, the CCMA commissioner held that the employee had no valid claim of unfair dismissal on grounds of a reasonable expectation of renewal, as she “was appointed in a temporary position and this position no longer existed”.

When dealing with the employee’s dishonesty, the “commissioner rejected the applicant’s submission that during her interview, she had forgotten that she had a criminal record” as “it is highly improbable that the applicant did not remember during the interview the fact that she was arrested. In all likelihood this would have been a traumatic experience and it is difficult to see how she could forget it.”
The arbitration award continued that “she kept quiet and only informed the respondent of the incident on March 23, some five months after the first interview”.
The commissioner dismissed the applicant’s claim that she had reasonable expectation of renewal of her fixed term contract, or to permanent employment.

Aggrieved by the arbitration award, the employee took it on review to the Labour Court arguing that the commissioner “had arrived at an award that no reasonable decision maker could have arrived at”.
The Labour Court agreed with the CCMA commissioner that “the applicant’s argument that she harboured a reasonable expectation to be appointed on a permanent position is not sustainable”.
The judgment noted that: “Section 186(1)(b) of the LRA covers instances where the employee alleges a reasonable expectation of renewal of a fixed-term contract that has expired… It does not cover reasonable expectation of appointment in a permanent position subsequent to several renewals of a fixed-term contract.”

In conclusion, the judgment held that “in failing to come clean and to admit that there was a criminal record against her name, the applicant was dishonest” and for this reason “she could not have harboured an objectively reasonable expectation of the renewal of her fixed-term contract or permanent employment”.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.Visit www.tonyhealy.co.za.
Call 0861 115 375 or email info@tonyhealy.co.za

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