Management of Job Applicants with a Criminal Record in the Public Service

Transcription

1 Management of Job Applicants with a Criminal Record in the Public Service Published in the Republic of South Africa by: THE PUBLIC SERVICE COMMISSION Commission House Cnr. Hamilton & Ziervogel Streets Arcadia 0083 Private Bag X121 Pretoria 0001 Tel: (012) Fax: (012) Website: National Anti-Corruption Hotline Number: (Toll-Free) Compiled by Branch: Monitoring and Evaluation Distribution by Directorate: Communication and Information Services Printed by: Creda Communications ISBN: RP: 20/ makeup.indd 1 1/4/09 14:29:05

2 Foreword Employers want to get the best employees for the job. However, they cannot do so at any cost. When bringing a new employee on board, employers must assess the potential risks that such persons pose to the institution, including whether they have criminal records. This becomes especially important to the Public Service, as employer, given that it serves the public and must be accountable and transparent in its actions. If one has regard for the premise of our justice system and the importance that we place on rehabilitation, it follows that a criminal record should not necessarily result in a ban on employment. However, there needs to be guidance on the recruitment of persons with criminal records. Currently there is limited policy direction in the Public Service in this regard and departments may not be aware of their responsibilities in managing the appointment of persons with criminal records. This can expose the Public Service to unnecessary risks and could undermine its credibility if it is seen to be employing persons with criminal records and not contextualising this. With due regard to the above, the Public Service Commission (PSC) commissioned an investigation into the matter. The investigation aimed, amongst others, to determine how job applicants with a criminal record are managed by departments and to provide recommendations on how this practice can be improved. Inconsistencies in the approach adopted by departments were found, and of particular concern to the PSC, is that a large number of departments do not conduct any pre-employment screening at all. I am pleased to present this report on the management of job applicants with criminal records in the Public Service, and am confident that the report will provide valuable advice on how this area of human resource management could be strengthened. The PSC wishes to express its appreciation to all the departments and institutions who participated in the investigation. PROF SS SANGWENI CHAIRPERSON: PUBLIC SERVICE COMMISSION ii makeup.indd 2 1/4/09 14:29:06

3 TABLE OF CONTENTS LIST OF FIGURES v LIST OF TABLES v GLOSSARY OF ABBREVIATIONS v EXECUTIVE SUMMARY vi CHAPTER 1: INTRODUCTION Background Mandate of the Public Service Commission Objectives of the investigation Research methodology Limitations experienced during the investigation Outline of the report 6 CHAPTER 2: PUBLIC SERVICE FRAMEWORK FOR MANAGING JOB APPLICANTS WITH A CRIMINAL RECORD Introduction Legislative and policy framework for employment in the Public Service Extent of policy guidance Key institutions involved in the management of persons with criminal records Summary 18 CHAPTER 3: INTERNATIONAL PERSPECTIVES ON THE MANAGEMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD Introduction The Canadian Public Service The United Kingdom The Australian Civil Service The American Federal Government Summary 24 CHAPTER 4: EMPLOYMENT OF PERSONS WITH A CRIMINAL RECORD Introduction A statistical perspective: The appointment of job applicants with a criminal record Occupational categories in which persons with criminal record were appointed 29 iii makeup.indd 3 1/4/09 14:29:07

4 4.4 Categories of crime committed by persons appointed to the Public Service Persons with criminal records appointed in private companies Summary 32 CHAPTER 5: CURRENT PRACTICES REGARDING THE MANAGEMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD Introduction Pre-employment screening Mechanisms employed to conduct pre-employment screening Factors taken into account when determining employment suitability The time it takes to conduct criminal record checks Motivation provided when deciding on the appointment of persons with criminal records Problems experienced when managing job applicants with criminal records Needs identified by departments Extent to which departmental policies address the management of job applicants with criminal records Record keeping practices Summary 39 CHAPTER 6: RECOMMENDATIONS AND CONCLUSION Introduction Providing comprehensive national norms and standards Developing and implementing departmental specific policies Adhering to criteria for criminal record checks Positioning the Vetting Fieldwork Unit Improving the turn around time for criminal record checks Effective record keeping Adjusting the Personnel and Salary Administration System Conclusion 45 Annexure A: Questionnaire completed by Government departments, private companies and public entities who participated in the investigation 46 LIST OF FIGURES Figure 1: Employees with a criminal record employed, reflected according to gender 26 Figure 2: Number of employees with a criminal record employed, reflected per Province 28 Figure 3: The time it takes to conduct criminal record checks 36 LIST OF TABLES Table 1: Response rate in respect of questionnaires forwarded to departments 4 Table 2: Departments who did not return completed questionnaires 4 Table 3: Private and public entities to whom questionnaires were forwarded 5 Table 4: Legislative and policy framework regulating the appointment of persons in the Public Service 8 iv makeup.indd 4 1/4/09 14:29:07

5 Table 5: Specifications for the staffing of Vetting Fieldwork Units 15 Table 6: Implementation of Vetting Fieldwork Units in departments 17 Table 7: Similarities between the international and South African perspectives 24 Table 8: Number of persons permanently employed in the Public Service 26 Table 9: Number of public servants with a criminal record employed in national departments 27 Table 10: Number of persons with criminal records shortlisted and appointed in the Public Service from 2005/2006 to 2007/ Table 11: Number of persons with criminal records appointed, reflected according to occupational categories 30 Table 12: Crimes committed by persons appointed into the Public Service 31 GLOSSARY OF ABBREVIATIONS ABET AFIS CRC CRIM DCS DPSA EA EAP EMPS FIMS FNB GCIS HoD HR ICD KPA MPSA NIA OPSC PALAMA PERSAL PSC SADF SAPS SMS USA VFU Adult Basic Education and Training Automated Fingerprint Identification System Criminal Record Centre Criminal Record Information Management Department of Correctional Services Department of Public Service and Administration Executing Authority Employee Assistance Programme Employer s Mutual Protection Service Fingerprint Information Management System First National Bank Government Communication and Information Systems Head of Department Human Resources Independent Complaints Directorate Key Performance Area Minister for the Public Service and Administration National Intelligence Agency Office of the Public Service Commission Public Administration Leadership and Management Academy Personnel and Salary Administration System Public Service Commission South African Defence Force South African Police Service Senior Management Service United States of America Vetting Fieldwork Unit v makeup.indd 5 1/4/09 14:29:07

6 EXECUTIVE SUMMARY 1. INTRODUCTION 1.1 Background There is an expectation that the Public Service will employ persons of good character. In fact the Public Service Act, 1994, states that no person shall be appointed permanently, whether on probation or not, to any post on the establishment of a department unless he or she is a fit and proper person. When bringing a new employee on board, the Public Service assesses competence, skills and whether the person is of good character, but must also assess the potential risks that such person poses to the institution by indicating whether they have a criminal record. The seeming intention with such disclosure is not necessarily to ban employment of people with a criminal record, but for the prospective employer to assess the potential impact this may have on the job requirement and on the organisation as a whole. Currently, however, there are limited policy guidelines on the employment of persons with criminal records in the Public Service. Managers may therefore not be clear as to the process to be followed in the case of an applicant with a criminal record, and could unwillingly, through their actions create legal difficulties for themselves if challenged. Also the process of conducting criminal record checks may not be clear. Given the fact that departments may not be aware of their responsibilities in managing job applicants with a criminal record and the risks associated with this, the PSC decided to conduct this investigation with a view to assist departments by raising important aspects relating to the practice and to provide strategic direction in this regard. 1.2 Mandate of the Public Service Commission The PSC has the mandate to conduct investigations in terms of section 196(2) of the Constitution of the Republic of South Africa, 1996, as well as sections 9 and 10 of the Public Service Commission Act, The investigation into the management of job applicants with criminal records in the Public Service is conducted in terms of the PSC s mandate to investigate and evaluate the application of personnel and public administration practices as well as adherence to applicable procedures within the Public Service. 1.3 Objectives of the investigation The objectives of the investigation were to, amongst others, investigate whether departments conduct pre-employment screening during recruitment and selection to verify whether or not a job applicant has a criminal record; determine the various mechanisms employed by departments to conduct pre-employment screening; determine best practice and to provide recommendations on effective management of job applicants with a criminal record; and provide recommendations on effective management of job applicants with a criminal record, including suggestions for policy development. 1.4 Research methodology A desktop study was undertaken of the relevant legislation and prescripts regulating the recruitment, selection and appointment of public servants. A questionnaire was furthermore developed and distributed to 34 national departments, 109 provincial departments, two private companies and two public entities vi makeup.indd 6 1/4/09 14:29:07

7 identified to participate in the investigation. The purpose of the questionnaire was to obtain information from the departments and institutions that participated in the investigation on how they determine a job applicant s suitability for employment. The information obtained through the questionnaire was supplemented with interviews held with key institutions involved in the management of job applicants with a criminal record, as well as a literature study conducted into the manner in which Canada, the United Kingdom, Australia and the United States of America manage job applicants with a criminal record. 2. LEGISLATIVE AND POLICY FRAMEWORK FOR EMPLOYMENT IN THE PUBLIC SERVICE Job seekers can apply for vacant posts and be appointed in the Public Service in terms of, amongst others, the Public Service Act, 1994, the Employment of Educators Act, 1998, the South African Police Service Act, 1995, as well as the Defence Act, Other legislation that informs employment practices in the Public Service includes the Constitution of the Republic of South Africa, 1996, and the Employment Equity Act, Subordinate legislation includes the Public Service Regulations, 2001 (PSR) and the National Vetting Strategy in the Public Service. The analysis of the above-mentioned legislation, policies and documents guiding the recruitment and selection of prospective public servants revealed limited guidance on the appointment of persons with criminal records in the Public Service. 3. KEY INSTITUTIONS INVOLVED IN THE MANAGEMENT OF PERSONS WITH CRIMINAL RECORDS 3.1 The role of the DCS in rehabilitating offenders One of the key responsibilities of the Department of Correctional Services (DCS) is to place incarcerated people, once they have served their sentences, back into the community with better skills to maintain a sustainable standard of life without resorting to crime. This is achieved through, amongst others, the following correction and development programmes: Providing education to people under correction. Providing training and productive work aimed at the employability and development of people under correction. Involving people under correction in community service and poverty alleviation projects. 3.2 The role of the DPSA in establishing VFUs The Department of Public Service and Administration (DPSA) is responsible for the setting of norms and standards for the Public Service. In this regard, in order to assist departments to implement the National Vetting Strategy, the DPSA assisted the National Intelligence Agency (NIA) in developing a generic organisational structure for Vetting Fieldwork Units (VFUs). The DPSA also developed posts and benchmark job descriptions that can be utilised as guidelines by departments during the staffing of newly established VFUs. 3.3 The role of the NIA in conducting criminal record checks The NIA is responsible for providing training for vetting officers. The training provided by the NIA covers amongst other things, the criteria for personnel suitability screening as well as the conducting of criminal record checks. Detailed guidelines pertaining to these actions were also captured in a booklet developed by the NIA, and made available to departments who attended the training sessions. vii makeup.indd 7 1/4/09 14:29:07

8 3.4 The role of the SAPS in maintaining criminal records Upon the receipt of requests by departments, the South African Police Service (SAPS) conduct criminal record checks. Where it is established that a person has a criminal record, the SAPS will forward a criminal profile to the relevant department. 4. INTERNATIONAL PERSPECTIVES ON THE MANAGEMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD A literature study was conducted by the PSC on the manner in which job applicants with a criminal record is managed in Canada, the United Kingdom, Australia and the United States of America. Important aspects noted in this regard include the following: In terms of anti-discrimination and human rights related legislation, all individuals are entitled to equal employment opportunities and discriminatory practices are not allowed. Legislation prohibits restrictions based on a criminal record during the recruitment and selection processes. Such prohibition includes disqualification of a person on the grounds of an irrelevant criminal record, i.e. if the reason for arrest and conviction is not related to the conduct required by a specific job. Enquiries about previous criminal records and convictions are discouraged, unless they are related to job-specific requirements. Criminal records are maintained at local Police Stations/Services or a Criminal Record Bureau for easy access to both the Public and Private Sector to make appropriate recruitment and selection decisions by determining the suitability of job applicants for the relevant positions. Employers can be held liable for the risk created by employing a person with a criminal record should that person intentionally harm other employees or clients. 5. EMPLOYMENT OF PERSONS WITH A CRIMINAL RECORD 5.1 Total number of persons with criminal records employed in the Public Service As at 31 March 2008 the number of persons with a criminal record permanently employed on a fulltime capacity in the Public Service is 223. Of these, 166 (74%) are employed in national departments where National Treasury employed the highest number (49 or 29%), followed by the DCS (36 or 22%). The remaining 57 (26%) out of the 223 persons with a criminal record are employed in provincial departments. In the provinces, the highest number of the 57 persons is employed in the Northern Cape (23 or 40%), followed by the Free State (16 or 28%) and the Western Cape (10 or 17.5%). Departments also indicated that 125 applicants with criminal records were shortlisted and interviewed during the previous three financial years of which 72 were appointed. 5.2 Occupational categories in which persons with a criminal record were appointed Departments indicated that persons with criminal records were appointed during the previous three financial years mainly in the clerical/administrative (19 or 26%), safeguarding and security (15 or 21%) and Senior Management Service (10 or 14%) occupational categories. 5.3 Categories of crime committed by persons appointed to the Public Service According to departments that participated in the investigation, the majority of crimes committed by the 72 persons with a criminal record appointed during the period under review related to drunken and/or reckless driving (21 persons or 29%), assault (16 persons or 22%) and theft (14 persons or 19%). Persons appointed to the senior management level were previously convicted of drunken driving, assault, negligence and political activism. Departments in these instances had to consider the seriousness of the viii makeup.indd 8 1/4/09 14:29:07

9 offence and, based on the fact that such persons were appointed to key positions, had to be satisfied that the relevant persons do not pose a risk. 6. CURRENT PRACTICES REGARDING THE MANAGEMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD 6.1 Pre-employment screening According to the information provided, only 78 out of the 137 (57%) departments and institutions who participated in the investigation conduct pre-employment screening to determine whether job applicants have criminal records. 6.2 Mechanisms employed to conduct pre-employment screening, and issues taken into account Out of the 137 departments that participated in the investigation, 24 (17.5%) indicated that a VFU, or a similar unit, had been established within the Department or is in the process of being established. In instances where no VFUs have been established, the Security and Risk Management Unit, or a similar unit, conducts criminal record checks in departments. Factors taken into account when determining the suitability of a job applicant with a criminal record for appointment include the following: Nature of transgressions/criminal acts committed. The risk posed by the transgression in relation to the requirements and nature of the job to be performed. Frequency of similar/correlating transgressions. Time that has elapsed since the job applicant was convicted. Employment history and previous performance assessments of the job applicant. Misrepresentation of criminal status or withholding of information. 6.3 The time it takes to conduct criminal record checks A total of 34 departments and institutions that participated in the investigation indicated that it takes between one and 10 working days for a criminal record to be checked, i.e. from the time a request is made until feedback is received. Eight indicated that it takes between 11 and 20 days. A further 18 stated that reference checks takes between 21 and 30 days and 28 indicated that it takes longer than a month. 6.4 Motivation provided when making or refusing appointments Motivation provided by selection committees for the appointment of a person with a criminal record include that all the requirements of the advertised post were met; the criminal record does not relate to the requirements of the post, and does not impact on the nature of the job; the individual already served his/her sentence or paid a fine; the crime committed is considered to be minor; and sufficient time has elapsed since the crime was committed for the person to have been rehabilitated. ix makeup.indd 9 1/4/09 14:29:08

10 6.5 Problems experienced and needs identified Problems experienced by departments with the management of job applicants with a criminal record include the following: Job applicants do not reveal in their applications that they have criminal records. The urgent filling of posts does not allow for proper criminal record checks to be done. Inadequate or no action is taken against job applicants who do not reveal in their applications that they have a criminal record. It is not clear whether the unit where the vacant post is situated, or the Human Resource Component, is responsible for initiating the criminal record check. Criminal record checking is not done prior to the compiling of shortlists but only after a person is appointed to the post. The conducting of a criminal record check is very time consuming and it takes too long for the NIA and the SAPS to respond to requests in this regard. Emanating from the problems experienced, departments identified specific needs relating to, amongst others, the establishment of policy guidelines and standards, fast-tracking of the establishment of the VFUs, and the improvement of the turn-around time for the vetting of job applicants. 6.6 Extent to which departmental policies address the management of job applicants with criminal records Out of a total of 137 departments and institutions that participated in the investigation, 103 (75%) indicated that they have internal policies in place regulating the recruitment, selection and appointment of employees. Of these, however, only 26 policies provide for the management of job applicants with a criminal record. 6.7 Record keeping practices Record of criminal record checks conducted is kept by departments and institutions on the individual s personal file, and/or electronically on a database. 7. RECOMMENDATIONS Based on the findings of this investigation, as well as needs identified by departments, recommendations are provided with a view to assist departments to manage job applicants with a criminal record in a uniform and effective manner. The recommendations are summarised as follows: Given the limited policy direction on the employment of persons with criminal records, the PSC is of the view that the Public Service Regulations, 2001 should be amended to provide direction in this regard. It is recommended that departments, with due regard to their unique structures, cultures, needs and circumstances, develop policies regulating the suitability of persons with criminal records for employment. Alternatively, existing departmental recruitment and selection policies should be amended to also provide for the management of job applicants with a criminal record. During the management of job applicants with a criminal record, departments need to take note of the criteria stipulated by the NIA in its guidelines on personnel suitability checks. Whilst some departments are of opinion that the task and responsibility of conducting personnel suitability checks should be located within the Security Management Unit, others feel it belongs within the Human Resource Management Unit. It is recommended that departments, with due regard to their own unique structures, environments and circumstances, determine for themselves where their VFUs will best be located and managed. x makeup.indd 10 1/4/09 14:29:08

11 Turn-around times of one month and longer for the finalisation of criminal record checks are unacceptable. The latter must be improved upon since candidates with scarce skills will be lost if another opportunity presents itself during this period. It is recommended that departments, on a six monthly basis, update and maintain accurate records of the following aspects regarding the management of job applicants with a criminal record: - Advertisements for vacant posts, specifying the inherent job requirements. - Dates on which the conducting of criminal record checks were requested. - Dates on which feedback on the outcome of criminal record checks were received. - The results of the criminal record checks conducted, i.e. reports by the VFU. - Proof of the serving of the sentence imposed and/or fine paid. The Personnel and Salary Administration System should be adjusted to make the capturing of information by departments on criminal records compulsory. In this regard, the functions #4.2.3 and #4.2.4 that are used to create an offer of employment on the System are ideal to accommodate information relating to criminal records. 8. CONCLUSION Employment practices in the Public Service are regulated by legislation and prescripts which are fair, equitable and non-discriminatory. However, the relevant legislation and prescripts provide little guidance on how departments should manage job applicants with criminal records. The determination of job applicants suitability for employment remains the responsibility of departments and as is clear from the findings in this report, various challenges are experienced by departments in this regard. In order to assist departments in this regard, specific recommendations were made by the PSC in this report. It is trusted that the strategic direction provided in this report will assist departments in the effective and efficient management of job applicants with a criminal record. xi makeup.indd 11 1/4/09 14:29:08

12 Chapter One Introduction makeup.indd 12 1/4/09 14:29:08

13 1.1 BACKGROUND There is an expectation that the Public Service will employ persons of good character. In fact the Public Service Act, 1994, states that no person shall be appointed permanently, whether on probation or not, to any post on the establishment of a department unless he or she is a fit and proper person 1. This requirement is especially important to the Public Service, as employer, given its obligation to deliver services in an accountable and transparent manner. This in turn demands high levels of integrity and professional ethics of public servants. Given that the Public Service is the largest single employer in South Africa, and receives thousands of applications from prospective employees, appointing the right person for the job is no easy task. Key to such appointments is rigorous reference checks on potential employees. This becomes even more difficult if one has regard for the statistics provided by the Employer s Mutual Protection Service (EMPS) that four out of every hundred criminal record checks done revealed previous convictions 2. When bringing a new employee on board, the Public Service assesses competence, skills and whether the person is of good character, but must also assess the potential risks that such person poses to the institution by indicating whether they have a criminal record. It is for this reason that job applicants for positions in the Public Service are required to openly declare their criminal record and indicate the criminal offence(s) committed by them. The intention with such disclosure is not necessarily to ban employment of people with a criminal record, but for the prospective employer to assess the potential impact this may have on the job requirement and on the organisation as a whole. Currently, however, there are limited policy guidelines on the employment of persons with criminal records in the Public Service. Managers may therefore not be clear as to the process to be followed in the case of an applicant with a criminal record, and could unwillingly, through their actions create legal difficulties for themselves if challenged. Also the process of conducting criminal record checks may not be clear. Given the fact that departments may not be aware of their responsibilities in managing job applicants with a criminal record and the risks associated with this, the PSC decided to conduct this investigation with a view to assist departments by raising important aspects relating to the practice and to provide strategic direction in this regard. 1.2 MANDATE OF THE PUBLIC SERVICE COMMISSION The PSC s mandate to conduct investigations is contained in the Constitution of the Republic of South Africa, 1996, as well as the Public Service Commission Act, 1997, and provides as follows: Legislation Constitution of the Republic of South Africa, 1996 Description Section 196(2): the PSC must exercise its powers and functions in the interest of the maintenance of effective and efficient administration and a high standard of professional ethics in the Public Service. Section 196(4): the PSC is empowered (a).. (b) to investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service; (c) (d). to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195; 1 Republic of South Africa, Public Service Act, The Star. Johannesburg. South Africa. 25 February makeup.indd 1 1/4/09 14:29:08

14 Legislation Public Service Commission Act, 1997 Description (e) (f) either of its own accord or on receipt of any complaint (i) to investigate and evaluate the application of personnel and public administration practices, and to report to the relevant executive authority and legislature; (ii) (iii) to monitor and investigate adherence to applicable procedures in the public service; and (iv) advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service. Section 9: The PSC is empowered to inspect departments and other organisational components in the Public Service, and to have access to such official documents or obtain such information from the Heads of Department or organisational components as may be necessary for the performance of the functions of the PSC under the Constitution. Section 10: The PSC is empowered to conduct an inquiry into any matter in respect of which it is authorised by the Constitution or the Public Service Act, Section 13(1): The delegation of the PSC s power to conduct an investigation to (an) officer(s). The investigation into the management of job applicants with criminal records in the Public Service is conducted in terms of the PSC s mandate to investigate and evaluate the application of personnel and public administration practices as well as adherence to applicable procedures within the Public Service. This is aimed at ensuring that the PSC, as the custodian of good governance, informs policy formulation in this important area. 1.3 OBJECTIVES OF THE INVESTIGATION The objectives of the investigation were to investigate whether departments conduct pre-employment screening during recruitment and selection to verify whether or not a job applicant has a criminal record; determine the various mechanisms employed by departments to conduct pre-employment screening; ascertain the processes followed by departments in making or refusing an appointment of an applicant with a criminal record as well as the reasons considered for such a decision; determine best practice in the management of job applicants who have a criminal record; and provide recommendations on effective management of job applicants with a criminal record, including suggestions for policy development. 1.4 RESEARCH METHODOLOGY The research methodology followed included a review of the legislation and prescripts regulating the recruitment, selection and appointment of public servants. Information was gathered by means of questionnaires and interviews conducted. This was supplemented by means of a literature review on international best practices. Each phase of the methodology followed is discussed below makeup.indd 2 1/4/09 14:29:08

15 1.4.1 Review of the regulatory framework As a starting point to the investigation, a desktop study was undertaken of the relevant legislation and prescripts regulating the recruitment, selection and appointment of public servants, as reflected in the next chapter. The desktop study was conducted to establish the practices and mechanisms prevailing within the Public Service in relation to the management of job applicants with a criminal record, and to assess the extent of guidance provided to managers in this area Development and distribution of research questionnaires A questionnaire was developed in order to determine how departments and institutions that participated in the investigation manage job applicants with a criminal record, whilst information was also solicited on how they determine a job applicant s suitability for employment. The questionnaire is attached to the report as Annexure A. The questionnaire was forwarded to all Heads of Department under cover of a letter informing them of the PSC s intended investigation. The questionnaires were also electronically forwarded to Human Resource (HR) managers in a total of 34 national departments and 109 provincial departments for purposes of participation in the investigation. The rate of responses received from national and provincial departments is reflected in tables 1 and 2 below: Table 1: Response rate in respect of questionnaires forwarded to departments Departments distributed Number of questionnaires - completed & returned outstanding Response rate National departments % Eastern Cape % Free State % Gauteng % KwaZulu-Natal % Limpopo % Mpumalanga % North West % Northern Cape % Western Cape % Response rate: % Table 2: Departments who did not return completed questionnaires National/Provincial National Eastern Cape Gauteng KwaZulu-Natal Department Statistics South Africa Transport Health Health Office of the Premier Economic Development makeup.indd 3 1/4/09 14:29:09

16 National/Provincial Mpumalanga Department Education Health & Social Services The questionnaire was also forwarded to the following private companies and public entities: First National Bank. ABSA Bank via Integra, an institution that conducts integrity assessments for, amongst others, ABSA Bank. SA Post Office Ltd. TELKOM SA Ltd. These private companies and public entities were identified to participate in the investigation to draw comparisons between the manner in which job applicants with a criminal record are managed in their organisations and the current practices employed in the Public Service. The rate of responses received from these institutions is reflected in the table below: Table 3: Private and public entities to whom questionnaires were forwarded Institution Questionnaire returned Yes ( ) No ( ) FirstRand Bank (First National Bank) ABSA Bank SA Post Office Limited Telkom SA Limited Response rate: Private & public entities 50% Collectively there were 137 responses out of 147 questionnaires distributed to departments, private companies and public entities. These included 32 out of 34 national departments (94%); 103 out of 109 provincial departments (94.5%); and one private company and one public entity (50 %) Interviews with key role players The information obtained from participating departments and institutions through the questionnaire was supplemented with interviews held with the following departments: Department of Public Service and Administration (DPSA): Structured interviews were conducted with officials at the DPSA in order to elicit information regarding the DPSA s role during the roll out phase of the National Vetting Strategy, including the establishment of the Vetting Fieldwork Units (VFUs). National Intelligence Agency (NIA): During the interview with officials from the NIA, the role and responsibility of the NIA in the screening of job applicants to determine their suitability for employment in the Public Service was discussed. The NIA was also requested to provide information on the extent to which departments request its assistance with the screening of applicants. The South African Police Service (SAPS): Within the SAPS, the Criminal Record Centre (CRC) is responsible for the collation and updating of the criminal record database maintained by the SAPS. Structured interviews were conducted with officials of the CRC, in order to establish the process followed in responding to requests received for criminal record checks makeup.indd 4 1/4/09 14:29:09

17 Department of Correctional Services (DCS): During the interview the role and responsibility of the DCS in rehabilitating offenders in order to enhance their social acceptance once they have served their sentences was explored International best practice literature review A literature study was also conducted into the manner in which Canada, the United Kingdom, Australia and the United States of America (USA) manage job applicants with a criminal record. Information gathered was processed and analysed, and best practices were identified. 1.5 LIMITATIONS EXPERIENCED DURING THE INVESTIGATION The following limitations were experienced during the investigation: Departments are required to capture an employee s criminal record on the Personnel and Salary Administration System (PERSAL). The PSC found during the investigation that this is not done in many instances. Departments therefore experienced challenges in providing information to the PSC on such employees as there was no easy accessible point of reference from which such employees could be identified. Information on employees with criminal records therefore had to be verified on their personal files. This was a time-consuming exercise which caused further delays. In some instances, the accuracy of information provided by departments was compromised as accurate records of job applicants with criminal records are not maintained on file. Not all departments and institutions provided the requested information to the PSC within the allocated time frame. Hence, there were further delays in that numerous written, electronic and telephonic follow-ups had to be made. Departments do not in all instances keep personnel files at a central point. Certain departments have decentralised the human resource management function to their regional offices. Delays were experienced in obtaining the information required from departments as files had to be transported between regional offices and their head offices. 1.6 OUTLINE OF THE REPORT The introductory chapter provided the background to the investigation. The report is further structured as follows: Chapter 2 presents an overview of the legislative and policy framework regulating the management of job applicants in the Public Service and discusses the role of key institutions involved in the rehabilitation and vetting of persons. Chapter 3 reflects the results of research conducted into the management of job applicants with a criminal record in other countries. Chapter 4 provides a statistical perspective regarding the employment of persons with a criminal record. Chapter 5 provides an overview of the practices applied by departments and institutions during the management of job applicants with criminal records. Drawing from the analysis and findings made during the investigation, as reflected in chapters 2 to 5, Chapter 6 contains recommendations that are aimed at providing strategic direction to departments regarding the management of job applicants with a criminal record makeup.indd 5 1/4/09 14:29:09

18 Chapter Two Public Service Framework for Managing Job Applicants with a Criminal Record makeup.indd 6 1/4/09 14:29:09

19 2.1 INTRODUCTION This chapter provides an overview of the policy and institutional framework regulating the appointment of persons in the Public Service. Specific emphasis is on persons with criminal records. The relevant sections of the applicable legislation and prescripts are analysed and interpreted in so far as it relates to the management of prospective public servants with a criminal record. In addition, the various institutions that have a role to play in providing a framework for the management of job applicants with criminal records are also discussed. 2.2 LEGISLATIVE AND POLICY FRAMEWORK FOR EMPLOYMENT IN THE PUBLIC SERVICE The legislative and policy framework regulating the appointment of persons in the Public Service is reflected in Table 4. Table 4: Legislative and policy framework regulating the appointment of persons in the Public Service Legislation/ Prescript Constitution of the Republic of South Africa, 1996 Significance to the employment of persons with criminal records The Bill of Rights, contained in Chapter 2 of the Constitution is the cornerstone of democracy in South Africa. It not only enshrines the rights of all people, but also affirms the democratic values of human dignity, equality and freedom. To this end, section 23(1) of the Constitution stipulates that everyone has the right to fair labour practices including recruitment, selection, appointment, assessment, promotion, disciplining and termination of service. In addition, section 195 requires that public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following: Good human resource management and career development practices, to maximise human potential, must be cultivated. Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation. Public Service Act, 1994 National Strategic Intelligence Act, 1994 In terms of section 197(4) Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service. The Act stipulates the qualifications for appointment in the Public Service. In this regard, section 10 of the Act states that no person shall be appointed permanently, whether on probation or not, to any post on the establishment of a department unless he or she is a fit and proper person. Section 2A of the Act, as amended by the National Strategic Intelligence Amendment Act, 2002, mandates the NIA to conduct security screening investigations of persons applying to be employed by an organ of State. Such security screening includes the gathering of information relating to, amongst others, criminal records makeup.indd 7 1/4/09 14:29:09

20 Legislation/ Prescript South African Police Service Act, 1995 White Paper on Human Resource Management in the Public Service, 1995 Employment Equity Act, 1998 Significance to the employment of persons with criminal records The character, reputation and conduct of servants of law and order must be beyond reproach at all times. Thus, section 36 of the South African Police Service Act, 1995, states that a member of the SAPS who is convicted of an offence and sentenced to a term of imprisonment without the option of a fine shall be deemed to have been discharged from the SAPS. Supplementary to the above, and of importance to the scope of this investigation, is the determination in section 28 of the Act that the National Commissioner of the SAPS shall determine a uniform recruitment procedure. This procedure is contained in the Regulations for the South African Police, i.e. Regulation 11(1)(a) as amended by Government Gazette of 27 December 2002, dealing with applications for appointment. In this regard, the latter Regulation stipulates that a person who applies to be appointed as a member of the SAPS must, amongst others, affirm under oath or by way of a solemn declaration that the particulars furnished in the application form are the truth and correct; and have no previous criminal convictions, and shall allow his or her fingerprints to be taken and background enquiries to be made. Chapter 5 of the White Paper on Human Resource Management in the Public Service deals with human resource management in practice. Specifically paragraph 5.2 states that one of the minimum entry requirements for employment in the Public Service is Good character. The White Paper elaborates on the latter as follows: Applicants for employment should be of good character, law abiding and prepared to conform with the high standards required by the Code of Conduct for Public Servants. It is essential to protect the public interest. Potential employees may therefore be required to provide information about past convictions or misdemeanours which could have a bearing on their suitability for employment in the Public Service. However, such incidents will not necessarily be a bar to employment, if it can be demonstrated that the nature of the incident poses no threat to the public interest, or the incident was sufficiently long ago, and the person s subsequent behaviour indicates that he or she is now rehabilitated. The purpose of the Act is to provide for employment equity and for matters related thereto. Hence, section 5 of the Act requires employers to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. However, in terms of section 6(2) of the Act it is not unfair discrimination to take affirmative action measures consistent with the purpose of this Act; or distinguish, exclude or prefer any person on the basis of an inherent requirement of a job (e.g. a fraudster may not be suitable to occupy a post with financial responsibilities, a convicted rapist or child molester may not be suitable to be employed as an educator, etc.) makeup.indd 8 1/4/09 14:29:10

21 Legislation/ Prescript Employment of Educators Act, 1998 Significance to the employment of persons with criminal records Whilst the Employment of Educators Act, 1998, provides for, amongst others, the employment of educators by the State, the provisions of the Act does not apply only to educators at public schools. The Act regulates the employment of educators also at further education and training institutions, departmental offices and adult basic education centers. Since educators are regarded as role-models by learners, and therefore have to set a good example at all times, their actions and deeds should always be beyond doubt. However, the Act does not address the issue of job applicants (i.e. educators) with a criminal record per se, but merely states the following: Section 6(3): Any appointment to a post on the educator establishment of a public school may only be made on the recommendation of the governing body of the school. Section 7(1): The filling of any post on any educator establishment under this Act shall take place with due regard to equality, equity and the other democratic values and principles contemplated in section 195(1) of the Constitution of the Republic of South Africa, Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 Minimum Information Security Standards, 2001 In the event that an educator was appointed in a post on the grounds of a misrepresentation (e.g. if an educator did not disclose that he/she has a criminal record), the employer may in terms of section 11 of the Act discharge such a person on account of misconduct. The objectives of the Act are to give effect to the spirit of the Constitution of the Republic of South Africa, 1996, in so far as the equal enjoyment of all rights and freedoms by every person, as well as the promotion of equality, are concerned. An illustrative list of unfair labour and employment practices is contained in Schedule 1 of the Act. First on this list is Creating artificial barriers to equal access to employment opportunities by using certain recruitment and selection procedures. To exclude persons from employment opportunities based purely on the fact that they have criminal records may not be in line with the objectives of this Act. The Minimum Information Security Standards are issued by the NIA and all departments have to comply with the measures contained therein. These standards deal with security issues relating to personnel, documentation, communication and information technology. Forming part of personnel security is the issue of security vetting, defined by the standards as the systematic process of investigation followed in determining a person s security competence. Criteria for the consideration of security clearance include actions and aspects adversely affecting the person s vulnerability to blackmail or bribery or subversion and his/her loyalty to the State. This also includes compromising behaviour. Departments can request the NIA to conduct security vetting of existing and prospective employees. For this purpose an application form for security vetting (Z204) has to be completed and submitted to the NIA makeup.indd 9 1/4/09 14:29:10

22 Legislation/ Prescript Public Service Regulations, 2001 Defence Act, 2002 Senior Management Service Handbook, 2003 Application For Employment Form (Z83) Significance to the employment of persons with criminal records Part VII/B.1 of Chapter 1 of the PSR states that an executing authority shall, amongst others, require an employee to be subjected to security clearance where the duties attached to the post are such as to make security clearance necessary. In addition, Part VII/D.8(a) stipulates that before making a decision on an appointment, an Executing Authority shall satisfy him/herself that the candidate qualifies in all respects for the post and that his/her claims in the application for the post have been verified. However, the above-mentioned part of the PSR was supplemented by a directive issued by the Minister for the Public Service and Administration (MPSA), determining which areas must be covered when doing verifications on appointment in the Public Service. Section 9 of the Defence Act, 2002, deals with the employment of persons in the South African Defence Force (SADF). This section states, amongst others, that the Regular Force consists of persons not younger than 18 years of age and not older than 65; conditions regarding enrollment, appointment, promotion and transfer are as prescribed; and no person may enroll in the Regular Force unless he/she is a citizen of the Republic of South Africa. Other than the above-mentioned, the Defence Act, 2002, does not specifically address the issue of the management of job applicants with a criminal record. Chapter 2 of the Senior Management Service (SMS) Handbook, dealing with the recruitment and selection of SMS members, states that before a SMS member is appointed, his/her track record and educational qualifications should be checked. In addition, Chapter 8 stipulates that in order to be appointed as a Head of Department, i.e. at the level of Deputy Director- General or Director-General, such person must be subjected to security clearance. The Z83 Application for Employment Form was designed with the intention of assisting departments in selecting persons that applied for advertised vacant posts, i.e. the identification of candidates to be interviewed. The form requires basic personal information of the job applicant, including whether the applicant was previously convicted of a criminal offence. In this regard, explanatory notes on the first page of the Z83 form states that all information will be treated with the strictest confidentiality and will not be disclosed or used for any other purpose than to assess the suitability of a person, except in so far as it may be required and permitted by law; and information pertaining to previous conviction of criminal offences will only be taken into account if it directly relates to the requirements of the position makeup.indd 10 1/4/09 14:29:10