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.
Elsworth O’Connor felt that his prospective employer, LexisNexis unfairly discriminated against him in terms of the Employment Equity Act.
During December 2023 LexisNexis advertised a vacant position in its taxonomy team for a senior data discovery and enrichment expert.
O’Connor applied for the position and he was later told that his interview had been positive, and that LexisNexis required further information from him which included a reference check.
When filling out the form, O’Connor responded “yes” when asked if he had ever been criminally charged. He mentioned that it was for theft in 2001, which has been expunged.
As requested by his prospective employer, he provided his fingerprints for them to conduct a criminal background check.
He subsequently received notice from LexisNexis that they had offered him permanent employment and that his contract would follow shortly if he accepted the salary which was offered to him.
It was, however, stated that this offer of employment is subject to a check that he had a “clear” criminal check.
O’Connor accepted the offer and was told that he would be working remotely from home.
However, a few days later he received another email stating that his prospective employer was retracting the offer because the criminal check had revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice.
O’Connor responded by explaining that these convictions took place 20 years ago and that his criminal record had in fact been expunged. He concluded by asking for an opportunity to explain the matter.
He, however, never received a response.
He has approached the court on an urgent basis requesting that the respondent (LexisNexis) be ordered to honour its original offer. He argued that the parties concluded a valid contract of employment, and that the respondent’s conduct constituted an automatically unfair dismissal on the arbitrary ground of past criminal convictions.
According to O’Connor he was unfairly discriminated against on the arbitrary ground of past criminal convictions.
Acting Judge Mark Meyerowitz remarked that there was very little evidence regarding the nature of the applicant’s prior convictions before the court, except that O’Connor admitted that these convictions did happen about 20 years ago.
“I am prepared to assume, for the sake of argument, that despite the two decades past and the expungement of this record, convictions of this nature might preclude the applicant from taking up positions that require trust and honesty (although I make no such finding).”
It was argued that there is no indication that the position of senior data discovery and enrichment expert requires any significant amount of trust and honesty, and certainly not so much that the possibility of the applicant’s rehabilitation should be completely disregarded.
The court was told that while it is so that O’Connor had been convicted of a crime, 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, his counsel said.
The judge found that the applicant’s criminal history is not relevant to the job which the respondent has denied him and to deny him this on strength of his old convictions, amounted to discrimination.
The court ordered LexisNexis to employ him in terms of the contract offered to him.
Pretoria News