Abstract
LL.M. (Labour Law)
South Africa is currently entering its 23rd year of democratic freedom, yet it is still plagued
by high crime and unemployment rates. This study endeavours to explore the nexus between
these two problematic areas and also considers the legal position found in both national and
international legal principles. Some much needed light is shed on the practice of employers
requesting insight into the criminal records of prospective employees in entry level lowskilled
job positions during application processes. The important difference between a
criminal profile and a criminal record is highlighted, and the administrative processes
applicable to each discussed. The study further considers whether the discrimination against
employees on the basis of a criminal record should not be seen as unfair and out of line with
our Constitutional principles. The study takes the form of an expository research, often
referred to as a black letter or doctrinal analysis. Relevant constitutional provisions, labour
legislation, case law, books, journal articles and similar sources are employed to show that
the above mentioned practice can be labelled as nothing other than discrimination on the
basis of one’s conscience. The study draws the conclusion that legal reform to curb forms of
such discrimination will not be found in altering the written law, but in the practical
application thereof in both our courts and workplace arenas. The Harksen test forms the
foundation of this legal argument and points out the inconsistency with which the courts have
applied same. It is practically suggested that job positions be categorized in levels, of which
the lower of the spectrum prohibits insight by employers into employees’ criminal records. It
is further suggested that once an employer can submit proof of an inherent job requirement,
formal application may be made to a court to prove the effect a possible criminal record may
have on same.