Convictions not a bar for a job – court

CRIMINAL convictions more than two decades ago came back to haunt a man who was offered a job as a senior data discovery and enrichment expert.

This as his prospective employer got wind of the convictions and 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.

In December 2023, LexisNexis advertised a vacant position for a senior data discovery and enrichment expert. O’Connor applied 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 it was for theft in 2001, which had been expunged. As requested, 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 offered to him.

It was, however, stated that this offer of employment was subject to a check that he had a “clear” criminal record.

O’Connor accepted the offer and was told he would be working remotely from home. A few days later he received an email stating that LexisNexis 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 explained that these convictions took place 20 years ago and his criminal record had been expunged. He asked for an opportunity to explain the matter but never received a response.

He 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 the respondent’s conduct constituted an automatically unfair dismissal on the arbitrary ground of past criminal convictions.

Acting Judge Mark Meyerowitz remarked that there was little evidence regarding the nature of the applicant’s prior convictions before the court.

“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 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 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 was not relevant to the job which the respondent has denied him and that 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.