Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
The Criminal Law Amendment Act 32 of 2007 (CLAA) prohibits certain employers from hiring or continuing to employ sex offenders. These ’employers’ are defined as those that employ staff who, directly or indirectly, deal with vulnerable people, i.e. children or mentally disabled persons (MDP) in the course of their work.
It appears that the term ‘sex offenders’ means here, people who have, or who are officially alleged to have, committed sex offences against children or MDPs. The CLAA requires the establishment of a Register of such sex offenders. Employers, as defined above, 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 or MDPs.
This legislation requires the employers in question to screen out all job applicants if they are sexual offenders as defined in the Act. 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 where it is possible to transfer the sex offender to a post where there is no risk of him/her committing a sexual offence. The employer must ask the Registrar for a certificate stating whether or not the employee or job applicant is on the Register of offenders.
Where the employee claims that his/her 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 for the period necessary to have the name removed.
Employers are further advised, before deciding to terminate such a sexual offender’s employment, to first hold a hearing to give the employee the opportunity to show why he/she should not be dismissed.
In view of the above dangers, affected employers should obtain advice from a reputable labour law practitioner without delay before acting against a suspected sexual offender. 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 to the employer’s reputation resulting from the sensational media coverage of such cases.
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