‘Not guilty yet’ leads to dismissal

2017-07-26 06:00
Jeanette Monahadi

Jeanette Monahadi

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Question:

I have been appointed by a security company as a security officer.

I did not disclose the fact that there is a pending criminal charge against me, because I have not been found guilty yet.

However, the company picked up the pending charge and has now dismissed me based on a clause in my contract which states that my appointment is subject to me receiving a positive background screening result. Can they do this?
Answer:

The type of clause which you mention as being included in your employment contract is typically referred to as an “automatic termination clause.” The validity of such a clause depends on whether it prevents an employee from exercising any right conferred on an employee by the Labour Relations Act.

An employer may not include a contractual clause in an employment agreement which prevents an employee from relying on his right not to be unfairly dismissed or limits the right of the employee to challenge such dismissal.

Yet it is not illegal for an employer to require fulfilment of a specific condition before employment begins or for employment to terminate automatically on fulfilment of a specific condition.

However, the merits of each case would have to be assessed to determine whether the automatic termination clause is valid or not.

In your case, the security company would argue that the clause was valid as a positive security vetting which is an inherent requirement to the job of a security officer. Because the background screening returned a negative result in the form of pending criminal charges, the condition of a positive background screening could not be met and your employment was fairly terminated as a result thereof. This may be further supported by the fact that the vetting process was also probably not in the control of your employer to be manipulated, but conducted by another entity such as the SAPS.

  • Whether this argument is valid, will have to be judged taking into account a number of factors, such as: Your constitutional right not to be unfairly dismissed; ) your right to challenge your dismissal and whether this right has in any way, been limited or waived by the clause; ) the wording of the specific clause;) the context of the job offer and employment agreement; ) the inherent requirements of your position and the importance of a positive background screening; and) the reason for termination of employment and the existence of any act by the security company which was aimed at ending your employment.

Should you feel that this clause has been unfairly applied, it would be prudent to consult with a labour specialist to look into the detail of your employment contract as well as the specific circumstances of your case to see if there are grounds to challenge the automa-tic termination of your employment.
Jeanette Monahadi, associate, Phatshoane Henney Attorneys

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