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Certain employment categories receive special attention
By Ivan Israelstam
The employment of certain sex offenders will soon be strongly regulated (Contemporary Labour Law [CLL] Vol. 17 March 2008). Section 45, Chapter 6 of the Criminal Law Amendment Act 32 of 2007 (CLAA) is expected to come into effect by June 16.
This law will, under certain circumstances, prohibit certain employers from hiring or continuing to employ sex offenders. For the purposes of this law "employers" are defined as those who employ staff who, directly or indirectly, deal with or come into contact with children or mentally disabled persons (MDP) in the course of their work.
While the CLAA is not a labour statute, section 45 will directly affect the targeted employers and employees. Employers, therefore, need to understand the provisions of the CLAA, to comply with their legal obligations under this act and to do so in such a way that they do not infringe labour legislation protecting the rights of employees (whether they are sexual offenders or not).
The purpose of this legislation is to prevent employees from committing sexual acts against children or mentally disabled people as members of these two population groups are normally unable to protect themselves from offences such as rape, sexual molestation and other sex-related infringements.
It appears that the promulgation of this legislation is a reaction to reports of such offences having been perpetrated in South Africa. The scope of this legislation is not entirely clear but it seems employers to be affected include those who employ staff such as nurses, psychologists, doctors, teachers, airline staff,domestic workers, church officials, scoutmasters, social workers, creche staff, child counselling centre workers and other employees dealing with children or mentally disabled people.
According to the report, the term sex offenders means, for purposes of this legislation, people who have, or who are officially alleged to have, committed sex offences against children. The CLAA requires the establishment of a register of such sex offenders. Employers may not employ persons whose names are on the register or persons who have failed to disclose to their employers, convictions against them for sexual offences against children.
The employers in question must screen all job applicants and not employ them if they are sexual offenders as defined. Furthermore, employers must screen existing employees and terminate the employment of those who they are not allowed to employ in terms of the CLAA.
However, the employer may not terminate the employment if it is possible to transfer the sex offender to a post where there is no risk of him/her committing a sexual offence in terms of the CLAA. The employer is required to apply to the registrar for a certificate stating whether or not such individuals are on the register of offenders.
Where the employee claims that registration as a sex offender is erroneous or has lapsed the employer should give the employee a chance to apply for his/her name to be removed from the register. This may require a suspension from duty of the employee for the period necessary to have the name removed. The CLAA does not clarify what happens if the employee's registration as a sex offender lapses.
Where the employment continues due to the lapsing of the employee's offender registration and the employee then commits a sexual offence against a child or MDP, it is unclear what degree of liability, if any, the employer will have. Employers are therefore advised to obtain indemnities and insurance against such liability.
Employers are further advised, before deciding to terminate a sexual offender's employment, to first hold a hearing to give the employee the opportunity to show why he should not be dismissed. Employers are in a tight position. On the one hand the CLAA requires them to terminate or refuse the employment of such sex offenders. On the other hand, the LRA prohibits employers from terminating employment without good reason and without following fair procedure.
In view of these dangers affected employers should obtain expert advice from a reputable labour law practitioner before acting against a suspected sexual offender. However, the employer should not delay in getting such advice as any delay could result in the employee committing a sexual offence at work which will put the employer in hot water.
The CLAA provides for a fine and/or a prison sentence of up to seven years for employers who do not comply with section 45 of the CLAA. Added to this could be the damage and even ruin of the employer's reputation resulting from the sensational media coverage that is likely to ensue in cases of sexual offences committed against children and MDPs who the employer is supposed to be looking after.
- Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or
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- Our appreciation to Ivan and The Star newspaper for permission to publish this article…
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