The Labour Court in Gqeberha ruled that data analysing company LexisNexis should employ a man who had signed a work contract, after they dismissed him when they learned that he had a criminal record dating back from 2001.
Elsworth John O’Connor applied for a job at LexisNexis in December 2023 after the company advertised a position for a Senior Data Discovery and Enrichment Expert I.
It is believed that it is a remote position and he will be working at home in Komani, Eastern Cape while his employer’s offices are in Durban, KwaZulu-Natal.
O’Connor went through the interview process and on January 20, 2024 he was notified via email by Natasha Singhe saying that his interview had been successful.
He was required to furnish the company with more information in order to continue processing his application, the information included filling out a RefCheck Consent and Indemnity Form.
When filling out the form, O’Connor admitted to having been previously criminally charged. He explained that charge emanates from a theft committed in 2001 and it has since been expunged.
On January 27, 2024 he provided his fingerprints at a local PostNet for the employer to conduct a criminal background check.
Two days later, Singh sent O’Connor an email with an offer of employment with a nine months contract starting on February 15, 2024.
However, the email mentioned that the offer of employment was subject to RefCheck verifying all credentials as valid, criminal checks being clear, and a positive reference from a previous employer.
He accepted the offer the same day.
Subsequently on January 30, 2024, he was emailed a contract of employment and the document was signed electronically by both parties that same day.
He was then given access to the company’s ‘work day schedule portal’ where the he would receive his daily work schedule.
This is because the position was an entirely remote position where the applicant would do all of his work from home.
Nine days before he could resume his duties, Singh sent an email stating that the company was now “retracting” the “conditional offer” of employment 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 wrote back by explaining that these convictions took place 20 years ago and that his criminal record had been expunged.
“I plead with you [to] allow me the opportunity to explain,” he wrote on the email.
He never received a response from the company.
O’Connor went to the Commission for Conciliation Mediation and Arbitrarion (CCMA) and the matter was set down for conciliation on March 6, 2024.
However, the LexisNexis did not attend the conciliation and CCMA issued a certificate of non-resolution.
On 8 March 2024, the applicant launched this application.
Disenchanted, O’Connor went to the Labour Court where the matter was heard by acting judge Mark Meyerowitz.
Judge Meyerowitz said the Employment Equity Act states that excluding an applicant from employment on the basis of a criminal history would constitute unfair discrimination in circumstances where that criminal history is irrelevant to the requirements of the job.
The judge added that O’Connor’s history was not relevant to the job which he has been denied.
“The applicant will conduct his work from his home in Komani whereas the company’s main offices are in Durban. The applicant will do his job over the internet using his own resources. It stretches credulity to imagine that the applicant will sit at home and maliciously miscategorise legal information for his own benefit,’’ Meyerowitz said.
Moreover, Meyerowitz said the criminal justice system is premised on the idea that once the criminal has paid their debt to society, the 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,” the judge added.
LexisNexis was ordered to employ O’Connor within 10 days after judgment was made.
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