Expunged, Yet Excluded: Reconsidering Criminal Record Discrimination in South African Employment Law in O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC)

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Page: 1739-1743

DOI: https://doi.org/10.5281/zenodo.17828250

CJ Tchawouo Mbiada (Department of Mercantile and Private Law, University of Venda Thohoyandou South Africa)

South African society is characterised by endemic inequality, which is the result of past discriminatory practices. Hence, the Constitution of the Republic of South Africa 1996 prohibits unfair discrimination. The Labour Court’s judgment under analysis in O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC), which addresses the intersection of employment equity, criminal history and the constitutional right to dignity, falls within the category of unfair discrimination. The court was tasked with determining whether the retraction of a job offer because O’Connor had an expunged criminal record constituted unfair discrimination under section 6 of the Employment Equity Act 55 of 1998 (EEA). While the court declined to enforce the employment contract through specific performance, it affirmed that excluding a job candidate on the basis of a decades-old, expunged conviction, particularly where the criminal history was irrelevant to the job, amounted to unfair discrimination. This commentary critiques the court’s dual-track reasoning that upheld the contractual condition while simultaneously condemning the employer’s discriminatory rationale. The analysis also addresses the limitations of the court’s interpretation of expungement and calls for doctrinal clarity in reconciling labour law, human dignity and reintegration of criminal offenders.