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

23 Legislation/ Prescript National Vetting Strategy In The Public Service, 2006 Significance to the employment of persons with criminal records In order to assist in processing applications fairly, job applicants are also requested on the first page of the Z83 form to complete all sections of the form in an accurate and legible manner. The last part of the Z83 form provides for the job applicant to sign a declaration that all the information provided is complete and correct. To this end, the job applicant also declares that he/ she understands that any false information supplied could lead to the application being disqualified or his/her discharge from the Public Service. Public servants are continuously at risk of being targeted for acts of espionage, sabotage, subversion, corruption and a range of other criminal and unconstitutional activities. Hence, the DPSA regarded it as imperative that adequate processes concerning the screening and security vetting of candidates and employees be put in place. 2.3 EXTENT OF POLICY GUIDANCE Following a study undertaken by the NIA, a national vetting strategy was formulated that, amongst others, addresses the need of the State as employer to determine the suitability of persons for employment. The Strategy was approved by Cabinet during December 2006 and entails the following human resource management related interventions: The implementation of personnel suitability checks in respect of all candidates selected for appointment, including criminal record checks by the NIA. The establishment of VFUs in selected departments that will be responsible for the collection of fieldwork information, whilst the evaluation of such information and the issuing/denial of security clearances are done by the NIA. In accordance with the above-mentioned Strategy, the MPSA has issued a directive determining that one of the areas to be covered during the verification process prior to appointing a person in the Public Service, is criminal record checks. The latter directive took effect on 1 January 2008 and was circulated to all departments by means of the DPSA s circular minute 14/1/1/P, dated 23 November The analysis of the legislation, policies and documents guiding the recruitment and selection of prospective public servants as outlined in Table 4 revealed limited guidance on the appointment of persons with criminal records in the Public Service. The right to fair labour practice is enshrined in prescripts and legislation such as the Constitution of the Republic of South Africa, 1996, 3 and the Employment Equity Act, In terms of section 6(2) of the Employment Equity Act, 1998, it is not unfair discrimination to take affirmative action measures consistent with the purpose of this Act or to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. The determination of job applicants suitability for employment, based on the inherent requirements of a job remains the responsibility of employers, including government departments. Guidance is provided to departments on the type of public servant required in section 10 of the Public Service Act, 1994, which provides that persons permanently appointed in the Public Service should be fit and proper. 3 Republic of South Africa, Constitution, Republic of South Africa, Employment Equity Act, makeup.indd 11 1/4/09 14:29:10

24 The White Paper on Human Resource Management, further provides that potential employees may 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. Again, departments are left with the discretion to determine whether a person convicted of a crime may be appointed. The National Vetting Strategy adopted by Cabinet during December 2006 provides for personnel suitability checks, including criminal record checks. The Vetting Strategy was followed by a directive of the Minister for Public Service and Administration which provides that a criminal record check should be conducted prior to appointing a person. No guidance was, however, provided on what should be done if a person is found to have a criminal record. Based on the legislation, policies and documents discussed in Table 4, there appears to be no prohibition on the appointment of persons with criminal records. However, there is limited guidance on what should be taken into consideration by departments in deciding on such persons suitability for employment. The exercise of discretionary powers in determining whether a person with a specific criminal record may or may not be appointed, may introduce inconsistent approaches across the Public Service, and this may have labour relations implications for the Public Service. 2.4 KEY INSTITUTIONS INVOLVED IN THE MANAGEMENT OF PERSONS WITH CRIMINAL RECORDS The management of job applicants in the Public Service occurs within the context of the legislative and policy framework as outlined in Table 4. Various role players and institutions play distinct roles emanating from this legislative framework in rehabilitating criminal offenders and in terms of the National Vetting Strategy. These institutions and the roles played by each of them are briefly discussed below The role of the DCS in rehabilitating offenders One of the key responsibilities of the DCS is to place incarcerated people, once they have served their sentences, back into the community. The aim is to place such people back into the community with better skills to maintain a sustainable standard of life without resorting to crime 6. In achieving this aim, since 2000, the DCS deemed it appropriate to realign its strategic direction to change the attitudes, behaviour and social circumstances of offenders. Hence, the White Paper on Corrections in South Africa 7, outlining the new strategic direction of the DCS with rehabilitation at the centre of all its activities, was developed and implemented. The White Paper defines rehabilitation as the result of a process that combines the correction of offending behaviour, human development and the promotion of social responsibility and values, and provides for 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. Supplementary to the White Paper, measurable objectives set in the DCS s current Strategic Plan 8 include the following: 5 Republic of South Africa, White Paper on Human Resource Management, Republic of South Africa. Department of Correctional Services. Strategic Plan for 2005/6-2009/10. 7 Republic of South Africa. Department of Correctional Services. White Paper on Corrections in South Africa. February, Republic of South Africa. Department of Correctional Services. Strategic Plan for 2005/6-2009/ makeup.indd 12 1/4/09 14:29:10

25 To develop employable and productive citizens by providing needs-based educational, skills and other development related programmes in order to facilitate the re-integration of offenders into communities. To provide services focused on the offenders preparation for release and the facilitation of their social reintegration into their respective communities. In order to ensure that the above objectives are met, the DCS implemented the Offender Skills Development Plan in the 2005/2006 financial year. The purpose of this Plan is to enhance the skills and employability of offenders, and include the accreditation of service providers with the DCS. Furthermore, forming part of the strategic re-alignment of the DCS, the Department committed itself to the following strategies to enhance the rehabilitation of offenders: Developing individualised need-based rehabilitation programmes. Marketing rehabilitation services to increase offender participation. Establishing formal partnerships with the community to strengthen the rehabilitation programmes and to create a common understanding. Promoting a restorative approach to justice to create a platform for dialogue for the victim, the offender and the community, facilitating the healing process. Combating illiteracy in correctional centres by providing ABET to offenders. Currently, the Department is responsible for the rendering of rehabilitation services at 240 correctional centres, accommodating approximately offenders. In addition to the rehabilitation of these offenders through the offering of education and the enhancement of work skills and ethics, in the 2007/2008 financial year offenders were also involved in the following initiatives 9 : Community infrastructure development. Reconstruction and maintenance of dilapidated community facilities. Contribution of food to communities through food gardens and food donations. All the above documents, strategies, programmes and initiatives have one goal in common, namely the rehabilitation of offenders in order to facilitate their social acceptance once they have served their sentences and are reintegrated into the community. Once they have been rehabilitated such offenders should be able to enter the labour market and compete for posts, even in the Public Service The role of the DPSA in establishing VFUs The 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 NIA in developing a generic organisational structure for VFUs. Furthermore, as the establishment of VFUs would have a significant impact on the organisational structures of departments, the DPSA also developed posts and benchmark job descriptions that can be utilised as guidelines by departments during the staffing of newly established VFUs. It is envisaged that the establishment of VFUs will enable departments to conduct pre-employment screening for their respective departments, and also co-ordinate the security vetting of job applicants and new appointees. The posts deemed appropriate for the VFUs and the job descriptions that were developed for benchmarking purposes are reflected in Table 5. 9 Republic of South Africa. Department of Correctional Service. Annual Report for the 2007/2008 Financial Year. Pretoria makeup.indd 13 1/4/09 14:29:10

26 Table 5: Specifications for the staffing of Vetting Fieldwork Units Work level* Key Performance Areas (KPAs) Appointment requirements Vetting Administrator (level 7) Vetting Investigator (level 7) Senior Vetting Investigator (level 10) Vetting Supervisor (level 12) Note*: Administration of the filing system for vetting documents within the Dept. Render administrative support services. Provide support to Head of Unit/ other staff on vetting operational meetings. Liaise with NIA on vetting matters. Conduct vetting fieldwork investigations. Provide inputs for the development & implementation of policies, guidelines, norms & standards in vetting investigations. Provide effective communication channels & systems between the NIA & other agencies. Administer vetting files & reports. Conduct vetting investigations. Provide inputs for the development & implementation of policies, guidelines, norms & standards in vetting investigations. Provide effective communication channels & systems between the NIA & other agencies. Administer files & partake in task teams dealing with matters relating to vetting projects/processes. Manage the execution of fieldwork investigations within the Department. Develop, manage & implement policies, guidelines, norms & standards in vetting & investigations for security clearance levels. Manage resources, projects & files. NQF 4 or 5, or equivalent qualification in Administration/Secretarial functions. 3 5 years experience in rendering a support/ administrative service. NQF 4 or 5, or equivalent qualification in Security/ Investigation or related areas. 3 5 years security related experience. A valid driver s license. Short courses in analysis, conflict management, listening & interviewing skills. NQF 6 or B degree (or equivalent) in Social Sciences or related areas. 3 5 years investigative experience. A valid driver s license. Short courses in analysis, conflict management, listening & interviewing skills. NQF 6 or B degree (or equivalent) in Social Sciences or related areas. 3 5 years investigative experience. A valid driver s license. Short courses in analysis, conflict management, listening & interviewing skills. Jobs were graded with the EQUATE Job Evaluation System and results subjected to quality assurance by a Job Evaluation Panel comprising representatives from the departments of Home Affairs, Trade and Industry, Correctional Services, Minerals and Energy, Foreign Affairs and the NIA makeup.indd 14 1/4/09 14:29:11

27 In order to assist departments, a generic vetting structure was also developed by the DPSA. According to this structure, VFUs are to be located within Corporate Services Components. The following is a synopsis of the proposed structure: Although the above structure reflects that VFUs are to be located within Corporate Services Components, some departments are of opinion that the responsibility of conducting personnel suitability checks should be located within the Security Management Unit, whilst others feel it belongs within the Human Resource Management Unit. This matter is further elaborated upon in the recommendations by the PSC, dealt with later in the report. Furthermore, in terms of Chapter 1, Part III/I.4 of the PSR, 2001, the MPSA approved that the benchmark job descriptions, job evaluation results, an implementation strategy and the generic vetting structure be issued to departments in the form of formal advice and guidelines. This was done as per the DPSA s circular minute 1/6/5/4, dated 18 April In terms of this directive departments have been provided with guidelines to establish VFUs to ensure that security vetting and criminal record checking can be done The role of the NIA in conducting criminal record checks During 2007/2008 VFUs were established at the departments of Home Affairs, Minerals and Energy, Trade and Industry and Correctional Services. This number falls below the initial target of establishing 13 national departments and at the Offices of Premiers. The VFUs that were established were staffed by vetting officers. The NIA is responsible for providing training for the vetting officers staffing the VFUs. In makeup.indd 15 1/4/09 14:29:12

28 this regard, three training sessions were conducted by the NIA in December 2007, January 2008 and April 2008 respectively. 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, citizenship status verification, credit worthiness assessments, verification of previous employment references and qualification verification. Detailed guidelines pertaining to these actions were also captured in a booklet 10 developed by the NIA, and made available to departments who attended the training sessions. Planning for further training sessions was underway during the conducting of this investigation. In addition to the establishment of VFUs and training provided, the NIA also assist departments with the advertising of posts for vetting officers, as well as the short-listing of candidates. The remaining departments where VFUs are to be established with the assistance of the NIA during the rest of the 2007/2011 MTEF period are as follows: Table 6: Implementation of Vetting Fieldwork Units in departments Financial year 2008/ / /2011 Environmental Affairs & Tourism Agriculture National Treasury Foreign Affairs Justice & Constitutional Development Water Affairs & Forestry Health Land Affairs Public Works In accordance with the Minimum Information Security Standards 11 issued by the NIA, one of NIA s responsibilities is the determination of a person s security competence through screening/vetting. Once such screening/vetting is completed, the NIA issues a security clearance of either Confidential, Secret or Top Secret to persons in the employment of the Public Service. The VFUs are responsible for the collection of fieldwork information, e.g. the names and identity numbers of applicants, the evaluation of such information and decision on the security clearances. However, the level of such clearances are done by the NIA. According to Chapter 1, Part VII/D8(a) of the PSR, 2001, with effect from 1 January 2008, verifications on appointment shall cover at least the following: Criminal record checks. Citizenship verification. Financial/asset record checks. Qualification/study verification. Previous employment verification (reference checks). Whilst the first two aspects are dealt with by the NIA, departments are responsible for conducting financial record checks, the verification of qualifications and employment verifications. Currently the NIA is in the process of accrediting service providers for this purpose in order to protect the integrity of such verification processes. Until such time as a Security Vetting Information System, i.e. a database containing details of all persons with a criminal record, has been developed by the NIA and made available to all departments, departments have to submit the names and details of job applicants to the NIA. The NIA then engages the CRC of the SAPS where criminal record checks are conducted. After the results of the criminal record checks are returned to the NIA, feedback is provided to departments. 10 Republic of South Africa. National Intelligence Agency. Personnel Suitability Checks (PSC). Guidelines for Interpretation & Evaluation of Record Checks. Version 1. Pretoria Republic of South Africa. The National Intelligence Agency. Minimum Information Security Standards. Pretoria makeup.indd 16 1/4/09 14:29:12

29 Despite the establishment of VFUs, departments are still reliant on the NIA and SAPS for the conducting of criminal record checks. This may explain why criminal record checks are not conducted by departments, given the administrative burden to approach an external institution for this purpose The role of the SAPS in maintaining criminal records and conducting record checks Records of convicted criminals are safeguarded by the CRC of the SAPS on the following three databases: Criminal Record Information Management (CRIM) System - details of criminal record, previous transgressions/records and other relevant data are maintained on this System; Automated Fingerprint Identification System (AFIS) - records of fingerprints and related data are maintained on this System; and Fingerprint Information Management System (FIMS) - this System serves as a link between the CRIM System and the AFIS. Departments can request the SAPS to conduct criminal record checks in respect of job applicants directly, via a service provider registered for this purpose with the SAPS, or the NIA. Whichever approach is followed, the relevant department, service provider or NIA have to send details regarding job applicants full names, surnames and identification numbers to the CRC. The CRC conducts the criminal record checks and the results are returned to the relevant department, service provider or NIA. In instances where a person has a criminal record, the SAPS will forward a criminal profile. However, providing only names and identification numbers of job applicants might not be adequate. According to the CRC, as little as 26% of approximately 6.5 million persons in South Africa who have criminal records are linked on the databases with the correct identification numbers. This illustrates the magnitude of identity fraud in South Africa. Therefore, by also providing a full set of fingerprints, i.e. all 10 rolled fingerprints, the CRC can, with greater accuracy, link a criminal offence to a specific person, eliminating identification fraud in the process 12. Since criminal record checking is done by the SAPS for the Public Service as well as for private employers, there is a high demand for the services rendered by the CRC. The work pressure experienced by the CRC is aggravated by the CRCs limited search capacity, as the CRC is confined to conducting a maximum of searches per day. Needless to say, the capacity constraints have contributed to the existing backlog experienced by the CRC. Given the above, it is understandable that the turn around time for the CRC to conduct criminal record checks is, according to the SAPS, between 5 working days and three months. Challenges experienced in this regard include incomplete criminal records resulting in adjudication difficulties. The results of criminal record checks are considered to be valid only for a period of 12 months. Needless to say, that this adds to the work pressure experienced by the CRC. These constraints would in all likelyhood contribute to the departments reluctance to request criminal record checks by the SAPS. 2.5 SUMMARY Emanating from the analysis of the legislation, policies and documents regulating the recruitment and selection of prospective public servants, the PSC found that limited guidance is provided to departments on the appointment of persons with criminal records. Departments are not guided on how to determine the suitability of persons with criminal records for specific positions, or when a person convicted of a crime can be regarded as rehabilitated. The new National Vetting Strategy is currently implemented only at the departments of Home Affairs, Minerals and Energy, Trade and Industry and Correctional Services, thus not all departments are familiar with the Strategy. This raises concerns that there may not be consistency in the vetting of job applicants 12 Interview conducted on 10 September 2008 with Director Bubu of the SAPS makeup.indd 17 1/4/09 14:29:12

30 across departments. Furthermore, the low uptake in setting up the VFUs and implementing the National Vetting Strategy is of concern, especially given the support provided to departments by both the NIA and the DPSA in the implementation of the National Vetting Strategy. The implementation of the National Vetting Strategy has been strengthened through formal advice and guidelines issued by the DPSA through its circular minutes 14/1/1/P and 1/6/5/4, dated 23 November 2007 and 18 April 2008, respectively. These are also supplemented by guidelines developed by the NIA and issued to departments in the form of a booklet 13. Should the practice of finalising appointments without conducting pre-employment screening and criminal record checks continue, the dangers associated with making unsuitable appointments will remain. This could have a negative impact on promoting a culture of integrity in the Public Service. 13 Republic of South Africa. National Intelligence Agency. Personnel Suitability Checks (PSC). Guidelines for Interpretation & Evaluation of Record Checks. Version 1. Pretoria makeup.indd 18 1/4/09 14:29:12

31 Chapter Three International Perspectives on the Management of Job Applicants with a Criminal Record makeup.indd 19 1/4/09 14:29:12

32 3.1 INTRODUCTION Given the limited policy direction for the management of job applicants with a criminal record in the South African Public Service, the PSC deemed it appropriate to conduct research into the manner in which the public services of other countries manage the appointment of such persons. The research focused on the public sectors of Canada, the United Kingdom, Australia and the USA. This Chapter provides a summary of the policies and practices regulating the management of job applicants with a criminal record in these countries. 3.2 THE CANADIAN PUBLIC SERVICE The Public Service of Canada places emphasis on ensuring effective recruitment and selection processes and procedures, in order to appoint the correct people in the correct positions, with the aim of enhancing the capacity of the State to deliver on its mandate 14. The current legislative framework in this regard consists of the Public Service Employment Act, Public Service Staff Relations Act, Financial Administration Act and Employment Equity Act. The Employment Equity Act ensures non-discrimination in employment practices in the Canadian Public Service. According to A Profile of the Public Service of Canada 15, the objective of the Act is to achieve equality in the workplace so that no persons shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfillment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities. This objective is also outlined in the Canadian Human Rights Act. The Act states that all individuals are entitled to equal employment opportunities, regardless of race, colour, ethnic origin, sex, age, religion, pardoned conviction or disability. Section 8 of the Act describes as a discriminatory practice, the use or circulation of any form of application for employment that expresses or implies any limitation, specification or preference based on prohibited grounds of discrimination. This applies to employment under federal jurisdiction, including government departments and agencies. The Guide to Employment Screening and Selection in Employment 16 specifically informs employers that enquiries about criminal records or convictions are discouraged, unless they are related to job-specific requirements. In the event that such enquiries relate to the inherent requirements of the advertised post, these are referred to as Bona Fide occupational requirements. In the event that a person s disability, gender, or other protected attributes such as a criminal history or psychological instability specifically prevents them from performing the core duties of a job, then the refusal to consider that person for employment is not discriminatory. This is on condition that adequate steps have been taken to ensure that all possible restrictive requirements are eliminated from recruitment and selection standards and practices. Criminal record checks for employment purposes are obtained from the local Police Services. 3.3 THE UNITED KINGDOM In the United Kingdom, the employment of job applicants with a criminal record is governed by two significant legislative frameworks 17 namely, the Rehabilitation of Offenders Act, 1974, and the Police Act, The Rehabilitation of Offenders Act, 1974, was introduced in order to ensure that ex-offenders who have not re-offended for a certain period of time since the date of the conviction are not discriminated against when applying for jobs. In terms of this Act, any conviction and punishment for a criminal offence can be regarded as spent, provided that the conviction did not carry a sentence excluded from the Act, such as a custodial sentence of over two and a half years, and that no other convictions occurred within the rehabilitation period. 14 Canada: Ministry of Public Works and Government Services. Canadian Human Rights Commission. A Guide to Screening and Selection in Employment. March A Profile of the Public Service of Canada: Current Good Practices and New Developments in Public Service Management. United Kingdom: Commonwealth Secretariat Canada: Ministry of Public Works and Government Services. Canadian Human Rights Commission. A Guide to Screening and Selection in Employment. March Criminal Records Bureau. About the CRB ( makeup.indd 20 1/4/09 14:29:12

33 A conviction is only regarded as spent when the rehabilitation period is complete. Once it is spent, the applicant is no longer legally required to disclose the criminal record, unless they are applying for a job that is exempted from the Act. These occupations are listed in Rehabilitation of Offenders (Exceptions) Orders. It is an offence under this law for anyone to obtain information about spent convictions or to disclose this information unless officially authorised to do so 18. Furthermore, the Police Act, 1997, enables access to criminal record checks across England, Wales, Scotland and Northern Ireland. It supports the protection of individuals afforded by the Rehabilitation of Offenders Act, 1974, and requires employers to register with the designated agencies responsible for criminal record checks in order to be able to ask individuals to apply for a disclosure. The Rehabilitation of Offenders Act, 1974, makes provision for the following three different levels of criminal record checks or disclosures: Basic Disclosure of all convictions held at national level which are not spent under the Rehabilitation of Offenders Act, issued only to individuals who will be able to choose to show it to employers. Standard Disclosure that is available for posts or purposes which are stated as exceptions to the Rehabilitation of Offenders Act, These groups include those involved regularly with children, young people, the elderly, sick or handicapped, administration of the law and other sensitive areas. A Standard Disclosure will include details of convictions, including spent convictions, and nationally held cautions. Enhanced Disclosure that is available in instances where job applicants apply for positions that involve care for, training, supervision or being in sole charge of young people. Enhanced disclosure is also conducted for certain statutory licensing purposes and judicial appointments. This type of disclosure contains similar information to the Standard Disclosure and will include local police records and non-conviction information. The Police Act, 1997, provides for a centralised Criminal Records Bureau to administer criminal record checks through its disclosure service. The latter Bureau and disclosure service is run by civil servants. It enables both the Public and Private Sector to make appropriate recruitment and selection decisions by identifying applicants who may be unsuitable for certain positions. Positions focused on by the Act are particularly those involving children or financial responsibilities. In addition, the Criminal Records Bureau places an obligation on registered bodies and other organisations to have written policies on the recruitment and selection of applicants with criminal histories. Copies of these policies must be provided to applicants at the onset of recruitment. 3.4 THE AUSTRALIAN CIVIL SERVICE The Australian Human Rights and Equal Opportunity Commission, in a paper on Discrimination in Employment on the Basis of Criminal Records 19, indicates that this form of discrimination involves a careful balance of different rights. In other words, the right to equal access to employment opportunities would be in contention with the fact that an applicant with a criminal record may pose a high risk if employed in certain positions, such as those involving direct contact with children. The right to freedom from discrimination on the grounds of a criminal record is supported in the employment context by the International Labour Organisation Convention 111, called the Discrimination Convention The latter was ratified by Australia in 1973, and requires all parties to 18 The Chartered Institute of Personnel and Development. Employing People with Criminal Records ( 19 Human Rights and Equal Opportunity Commission. Discrimination in Employment on the Basis of a Criminal Record ( makeup.indd 21 1/4/09 14:29:13

34 declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. Furthermore, the Human Rights and Equal Opportunity Commission Act, 1986, provides for the protection of persons against discrimination on the basis of race, gender, class, and extends the definition of discrimination to include criminal records. Only two States in Australia, namely Tasmania and the Northern Territory, have specific legislation that prohibits discrimination on the basis of a criminal record. In this regard the Northern Territory s Anti-Discrimination Act, 1992, as well as the Tasmanian Anti-Discrimination Act, 1998, prohibit discrimination against a person on the grounds of an irrelevant criminal record, i.e. a criminal history that is not relevant to the inherent or essential requirements of the job. The legislation also includes an exemption to discrimination where the job primarily involves the care or supervision of vulnerable persons, including children. No other anti-discrimination laws in Australia provide specific protection against discrimination on the basis of a criminal record. However, in Western Australia and the Australian Capital Territory there are provisions in place that prohibits discrimination on the basis of spent convictions. Most States and Territories, with the exception of Victoria and South Australia, have legislation which in general allows an offender to deny that they have a criminal record, subject thereto that a crime-free period has expired. Such crime-free period depends on the nature of the offence committed, but is usually in the region of 10 years. Criminal records are kept by Local Police Services in each jurisdiction in Australia. An employer can request a criminal record check, provided they have the consent of the applicant. It is also possible to obtain a National Police Certificate which includes a check of all records held in all jurisdictions. To avoid discrimination on the basis of a criminal record, an employer can only refuse to employ a person with a criminal record if the person s criminal record means that he/she will be unable to perform the inherent requirements of the job THE AMERICAN FEDERAL GOVERNMENT In the case of the USA, the Federal Government has provided guidelines discouraging employment discrimination against applicants with criminal records and employment standards which may be utilised by employers to conduct individual assessments of applicants with criminal histories. In addition, the Equal Employment Opportunity Commission of the USA has determined that policies that exclude individuals from employment on the basis of arrest and criminal records may violate the stipulations of the Civil Rights Act, 1964, because they may disproportionately exclude minority groups 21. The Policy Guidance on the Consideration of Arrest Records in Employment Decisions, administered by the Equal Employment Opportunity Commission, states that records of arrest may not be used as the sole reason to exclude a person from employment. However, if the reason for arrest is related to the conduct required by a specific job, the record can then be utilised as justification for refusing access to employment. Currently, 14 States in the USA have statutes that set out standards governing the decisions of public employers when considering people with criminal records for employment and licensing. These statutes do not necessarily require employers to hire people with criminal records, but they provide guidelines on how to consider the relevance of the criminal history to the job in question if the applicant is otherwise qualified for the position. The States that require public employers to conduct criminal record checks, or individualised assessments, in respect of job applicants include Arizona, Connecticut, Kentucky, Florida, Washington and New York. 20 Human Rights and Equal Opportunity Commission. Discrimination in Employment on the Basis of a Criminal Record ( 21 Equal Employment Opportunity Commission. Policy Guidance on the Consideration of Arrest Records in Employment Decisions ( arrest_records.html) makeup.indd 22 1/4/09 14:29:13

35 In the remaining States employers can be held liable for the criminal actions of their employees under the theory of negligent hiring. Legally, under the theory of negligent hiring, employers may be held liable for the risk created by employing a person with a criminal record should that person intentionally harm other employees or clients. 3.6 SUMMARY During the literature study of the management of job applicants with a criminal record in these countries, the following important aspects were noted: 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. Similarities between these countries and the South African perspective are summarised as follows: Table 7: Similarities between the international and South African perspectives CANADA UNITED KINGDOM AUSTRALIA UNITED STATES OF AMERICA SOUTH AFRICA Individuals are entitled to equal e m p l o y m e n t o p p o r t u n i t i e s, regardless of, amongst others, p a r d o n e d conviction. Criminal record checks for e m p l o y m e n t purposes are obtained from the local Police Services. Legislation was introduced in order to ensure that ex-offenders who have not re-offended for a certain period of time are not d i s c r i m i n a t e d against when applying for jobs. Criminal record checks are done via a centralised Criminal Records Bureau. Persons are protected against d i s c r i m i n a t i o n on the basis of, amongst others, criminal records. Criminal records are kept by Local Police Services Guidelines are in place discouraging e m p l o y m e n t d i s c r i m i n a t i o n against applicants with criminal records. Criminal records are regulated by the Policy Guidance on the Consideration of Arrest Records in Employment Decisions. In terms of the C o n s t i t u t i o n, everyone has the right to fair labour practices including r e c r u i t m e n t, selection and appointment. Criminal records are kept by the CRC located within the SAPS. The international perspective obtained through the research provides a basis for comparison in the manner in which job applicants with criminal records are managed in the South African Public Service. The employment of persons with criminal records in the South African Public Service is discussed in the next chapter makeup.indd 23 1/4/09 14:29:13

36 Chapter Four Employment of Persons with a Criminal Record makeup.indd 24 1/4/09 14:29:13

37 4.1 INTRODUCTION The key objective of this investigation was to determine the processes followed by departments in considering the suitability of job applicants with a criminal record. The PSC, however, also determined the extent to which persons with a criminal record have been employed in the Public Service. In this Chapter statistics are provided regarding the number of job applicants with a criminal record that were appointed in a full-time capacity in the Public Service, the occupations in which they were appointed and the crimes they had committed. Data received from other institutions are also reflected. The statistics reflected in this Chapter were obtained from the responses of departments and institutions to the questionnaire attached to the report at Annexure A. 4.2 A STATISTICAL PERSPECTIVE: THE APPOINTMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD Total number of persons with criminal records employed in the Public Service Departments indicated that as at 31 March 2008 the number of persons with a criminal record permanently employed on a full-time capacity in the Public Service is 223. This constitutes 0.02% of all public servants employed. A breakdown of this figure per race and gender is provided in the table below, whilst the total number of public servants is also provided for comparative purposes: Table 8: Number of persons permanently employed in the Public Service Number of persons with Number of persons employed* criminal records Race Female Male TOTAL Female Male TOTAL African Coloured Indian White TOTAL Note: *Statistics as at 31 July 2008, supplied by PERSAL From Table 8 it is clear that more females (57%) than males (43%) are employed in the Public Service. However, the number of male public servants with a criminal record exceeds their female counterparts by far. As illustrated in Figure 1, out of the 223 persons with a criminal record employed in the Public Service, 50 (22%) are female and 173 (78%) are male. Female 22% Male 78% Male Female Figure 1: Employees with a criminal record employed, reflected according to gender makeup.indd /04/03 3:03 PM

38 4.2.2 Persons with criminal records appointed in national departments The investigation revealed that 166 (74%) out of the 223 public servants with a criminal record are employed in national departments, as reflected in Table 9. Table 9: Number of public servants with a criminal record employed in national departments Department Public servants with a criminal record Number Percentage Agriculture 1 0.6% Arts & Culture 2 1.2% Communications None N/A Correctional Services (DCS) 36 22% Defence None N/A Education None N/A Environmental Affairs & Tourism None N/A Foreign Affairs 2 1.2% Government Communication & Information Systems None N/A Health None N/A Home Affairs 13 8% Housing None N/A Independent Complaints Directorate None N/A Justice & Constitutional Development None N/A Labour 18 11% Land Affairs None N/A Minerals & Energy 17 10% National Treasury 49 29% Office of the Public Service Commission 2 1.2% Presidency None N/A Provincial & Local Government None N/A Public Administration Leadership & Management Academy 3 2% Public Enterprises None N/A Public Service & Administration 1 0.6% Public Works None N/A Science & Technology 19 11% Secretariat for Safety & Security None N/A Social Development None N/A South African Police Service None N/A Sport & Recreation 1 0.6% Trade & Industry 2 1.2% makeup.indd 26 1/4/09 14:29:14

39 Department Public servants with a criminal record Number Percentage Water Affairs & Forestry None N/A Total number of public servants with a criminal record % Out of the 32 national departments that participated in the investigation, only 14 have employed persons with a criminal record. Out of the 166 public servants with a criminal record employed, National Treasury employed the highest number (49 or 29%), followed by the DCS (36 or 22%). The fact that National Treasury employed the highest number of persons with a criminal record, namely 49 (29%), on face value appears to raise concerns given the fact that National Treasury is at the forefront of ensuring effective and transparent financial management in the Public Service. The categories in which such persons were employed includes human resource related, procurement, secretarial and the SMS. However, the Department indicated that the majority of these persons were convicted for traffic offences (i.e. not paying fines and negligent driving) and the risk associated with their appointment was therefore minimal. The Department, however, also indicated that public servants who were convicted of fraud and corruption had also been appointed. However, the number of such persons and the occupational categories in which they were appointed were not indicated. Given the nature of the functions performed by National Treasury, it would be of concern if such persons were appointed in financial related positions. The high number of employees with a criminal record within the DCS points to a commitment by the Department to restorative justice. The DCS is actioning its belief that individuals that have demonstrated an ability to reform must be given opportunities of employment Persons with criminal records appointed in provincial departments A total of 57 (26%) persons out of the 223 with criminal records in the Public Service are employed by provincial departments. Of these, the highest number are employed in the Northern Cape (23 or 40%), followed by the Free State (16 or 28%) and the Western Cape (10 or 17.5%). As indicated in Figure 2, four Provinces indicated that they have no persons with a criminal record on their establishments Number of persons Eastern Cape 0 Free State Gauteng 0 KwaZulu-Natal Limpopo Mpumalanga 0 0 North West Northern Cape Western Cape Figure 2: Number of employees with a criminal record employed, reflected per Province Based on the figures provided by provincial departments there appears to be no correlation between the size of the Public Service and the number of persons with criminal records employed. The Northern Cape has the smallest number of public servants, yet employs the highest number of persons with a criminal makeup.indd 27 1/4/09 14:29:14

40 record. This may be attributed to the fact that criminal record checking is done more frequently in this province compared to others, or that record keeping in this regard is more effective Persons with criminal records shortlisted from 2005/2006 to 2007/2008 Departments indicated that 125 applicants with criminal records were shortlisted and interviewed during the previous three financial years. Details in this regard, as well as of the number of job applicants who were successful with their applications and appointed, are reflected in Table 10. Table 10: Number of persons with criminal records shortlisted and appointed in the Public Service from 2005/2006 to 2007/2008 Race Number of persons with a criminal record shortlisted & interviewed Number of persons with a criminal record appointed 2005/ / / / / /2008 Female Male Female Male Female African Coloured Indian White TOTAL Male Female Male Female From the above it is clear that although a total of 125 persons with a criminal record were shortlisted during the 2005/2006 to 2007/2008 financial years and interviewed for posts, only 72 (58%) were successful. Based on these figures it would appear that a large proportion of the persons with criminal records that reach the shortlisting and interview phase of recruitment and selection are appointed. This could mean that when departments shortlist persons with criminal records, such applicants generally meet the requirements of the advertised posts and also do not pose potential risks through their appointment. Although the period under review only covered three financial years, a total of 72 (32%) of all persons with criminal records in the Public Service were appointed during this period. This constitutes a relative large proportion of all appointments of persons with criminal records, given the short period in which these appointments were made. It could be indicative thereof that departments are applying increasingly the principle of restorative justice. 4.3 OCCUPATIONAL CATEGORIES IN WHICH PERSONS WITH CRIMINAL RECORDS WERE APPOINTED Departments indicated that in considering the appointment of candidates with criminal records the types of crimes committed was weighed against the nature and requirements of the post applied for. Statistics regarding the occupational categories in which persons with a criminal record were employed during the period 2005/2006 to 2007/2008 are reflected in Table 11: Male Female Male makeup.indd 28 1/4/09 14:29:14

41 Table 11: Number of persons with criminal records appointed, reflected according to occupational categories No of persons appointed Occupational category 2005/ / /2008 Total Agricultural Related Artisan, Technical & Support Staff Clerical/Administrative Communication & Information Related Economic/Financial Related Human Resource (HR) Related Investigative & Law Enforcement Legal Related Natural Sciences Related Procurement/Supply Chain Related Safeguarding & Security Related Secretarial Senior Management Service (SMS) Social Services & Related TOTAL From Table 11 above it is clear that persons with criminal records are appointed mainly in the clerical/ administrative (19 or 26%), safeguarding and security (15 or 21%) and SMS (10 or 14%) occupational categories. The risks associated with the hiring of persons with criminal records to enforce safeguarding and security related services may be a cause for concern given such persons responsibilities of securing assets of employers. The appointment of persons with a criminal record at the SMS level may be a further cause for concern. Management has the duty to lead, amongst others, the inculcation of ethical conduct within the Public Service. Thus the integrity of members of the SMS must be beyond reproach. However, these appointments must be considered against the nature of the crimes committed by such persons, and the extent to which it has an impact on the requirements of the posts they occupy. 4.4 CATEGORIES OF CRIME COMMITTED BY PERSONS APPOINTED TO THE PUBLIC SERVICE Departments indicated that persons appointed to the Public Service during the period 2005/2006 to 2007/2008 committed the following crimes as indicated in Table makeup.indd 29 1/4/09 14:29:15

42 Table 12: Crimes committed by persons appointed into the Public Service Type Fraud & corruption Crime committed Number of persons Frequency Occupational categories in which appointed 10 14% Clerical/Administrative, Forensic, HR, Social Services Theft 14 19% Clerical/Administrative, Artisan, Technical & Support Staff, HR, Safeguarding & Security, Law enforcement, Natural Sciences Drunken/reckless driving 21 29% Agricultural, Clerical/Administrative, Communication & Information, Artisan, Technical & Support Staff, Secretarial, Forensic, Safeguarding & Security, Law enforcement, Senior Management Service Armed robbery N/A N/A None Murder 1 1.5% Artisan, Technical & Support Staff Assault 16 22% Agricultural, Artisan, Clerical/Administrative, Technical & Support Staff, Legal, Senior Management Service, HR, Law enforcement, Safeguarding & Security Rape 4 5.5% Safeguarding & Security, Law enforcement, Clerical/ Administrative Negligence (loss of firearm) Selling liquor without license Other, i.e. political activism 1 1.5% Senior Management Service 1 1.5% Safeguarding & Security 4 5.5% Senior Management As indicated in Table 12 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 SMS were previously convicted of drunken driving, assault, negligence and political activism. Departments in these instances had to consider the seriousness of the 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. Offences such as drunken driving and negligence are not necessarily viewed as an indictment on the integrity of such person. Political activism is furthermore a reality of South Africa s past and therefore should also not pose a prohibition on appointment. Assault is, however, a violent crime and it is not clear to what extent the departments involved have satisfied themselves that the relevant individuals have been rehabilitated to the extent that they can function at senior management level. Similar concerns must be expressed about the appointment of 3 (4%) persons committed of rape in the law enforcement and security category. These persons are assigned the responsibility of safeguarding members of society, in particular women and children, and their previous misdemeanors could have mitigated against their employment in this area makeup.indd 30 1/4/09 14:29:15

43 4.5 PERSONS WITH CRIMINAL RECORDS APPOINTED IN PRIVATE COMPANIES The private company that participated in the investigation indicated that they, as a general rule and given the nature of their business, do not appoint persons with a criminal record. In addition, the public entity that responded indicated that candidates need not disclose information regarding criminal convictions in their applications. Criminal record checks are only conducted after successful candidates were identified. However, the relevant public entity could not provide details on the number of successful candidates with criminal records that were appointed. 4.6 SUMMARY According to the departments that participated in the investigation, 223 persons with a criminal record are permanently employed on a full-time capacity in the Public Service. However, the PSC is of opinion that as a result of poor record keeping by departments this small number, i.e. 0.02% of the 1.1 million public servants employed as at 31 July 2008, may not be an accurate reflection of the number of persons with a criminal record appointed in the Public Service. During the period 2005/2006 to 2007/2008, a total of 72 job seekers with criminal records were shortlisted, interviewed and were successful in their applications. This constitutes 58% of the total of 125 persons with criminal records that were shortlisted. The number of persons with criminal records that were appointed may, however, not be a matter of concern. Departments, in terms of the principle of restorative justice, could have considered the extent to which such persons have been rehabilitated and, together with their competencies, taken an informed decision on their suitability for employment. The extent to which departments effectively manage the recruitment of persons with criminal records is explored in detail in the next Chapter makeup.indd 31 1/4/09 14:29:15

44 Chapter Five Current Practices regarding the Management of Job Applicants with a Criminal Record makeup.indd 32 1/4/09 14:29:15

45 5.1 INTRODUCTION The management of job applicants with criminal records involves a multi-faceted approach. This includes pre-employment screening and the processes followed in considering the suitability of candidates for appointment. This chapter reflects on the management of these processes by departments as well as the challenges experienced. Departments were also requested to indicate how the management of job applicants with a criminal record could be improved. This Chapter reflects on the findings in relation to the above areas, and draws lessons from the international best practices. 5.2 PRE-EMPLOYMENT SCREENING According to the information provided by departments and institutions who participated in the investigation, only 78 out of 137 (57%) conduct pre-employment screening to determine whether job applicants have criminal records. Not all departments and institutions indicate up-front in their advertisements that applicants will be subjected to a background screening programme, including criminal record checks. During the previous 12 months that ended on 31 July 2008, job applicants were subjected by departments to criminal record checks. Of these, 25 instances of non-disclosure were observed. These applicants did not disclose their criminal records even though they were clearly required to do so. This further emphasises the need for pre-employment screening. A total of 852 job applicants were subjected by private companies and public entities to criminal record checks. The importance of conducting criminal record checking PRIOR to the appointment of employees in the Public Service is self explanatory. However, 35 of the departments that participated in the investigation indicated that NO criminal record checking is done. A further 54 departments and institutions indicated that criminal record checks are done in all instances. The remaining participants conduct criminal record checks only if the job applicant indicated that he/she has a criminal record; if the criminal record relates to the responsibilities of the vacant post; on an ad-hoc basis by means of sampling; in respect of the filling of posts on salary levels 9 and higher; in respect of the filling of posts in certain components, e.g. Procurement; and/or in respect of the filling of certain posts, e.g. Chief Financial Officer and Provincial Inspector. Eight departments and institutions indicated that criminal record checks are done prior to compiling a shortlist, whilst 34 conduct such checks after the shortlist is compiled, but prior to conducting interviews. A further 37 departments and institutions conduct criminal record checks only once interviews were conducted. Ten departments and institutions conduct criminal record checks only after approval for the appointment of the successful candidate was obtained, whilst two departments and institutions do so only after a person has already been appointed. The fact that criminal record checks are only conducted after approval for the appointment of the successful candidate has been obtained, but more so after a person is appointed, is of concern to the PSC. The purpose of conducting such checks is to determine the suitability of a person for employment in the Public Service. If the full selection process is allowed to proceed without determining whether a person has a criminal record, the end result will cause further delays in the filling of the post if a positive reference check is received makeup.indd 33 1/4/09 14:29:15

46 5.3 MECHANISMS EMPLOYED TO CONDUCT PRE-EMPLOYMENT SCREENING As indicated in Chapter 2 of the report, a National Vetting Strategy was formulated that, amongst others, addresses the need of the State as employer to determine the suitability of persons for employment by means of the implementation of personnel suitability checks in respect of all candidates selected for appointment, including criminal record checks by the NIA; and establishment of VFUs in departments who are responsible for the collection of fieldwork information (according to the Strategy, the evaluation of such information and issuing/denial of security clearances remain the responsibility of the NIA). Out of the 137 departments that participated in the investigation, 24 (18%) indicated that a VFU, or a similar unit, had been established within the Department or are in the process of being established. In instances where no VFUs have been established, the Security and Risk Management Unit, or a similar unit, conduct criminal record checks in departments by means of the following: Liaise with the previous employer of the job applicant to obtain information about his/her conduct. Conduct an interview with the job applicant. Liaise with persons listed as references in the job applicant s Curriculum Vitae. Criminal record checks are outsourced to a private company/credit bureau registered in terms of the National Credit Act, 2005, i.e. Quest, Jobvest, Kroll, EMPS, I-Digital Africa and Mobile Cellutions. Criminal record checks are done by the NIA and/or the SAPS. Given the fact that the National Vetting Strategy was adopted in December 2006, the limited number of VFUs and similar units established is of concern. Departments that have no VFUs would have limited capacity to conduct pre-employment screening. 5.4 FACTORS TAKEN INTO ACCOUNT WHEN DETERMINING EMPLOYMENT SUITABILITY Whatever the mechanism employed by departments and institutions to conduct pre-employment screening, the investigation revealed that issues 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. Age of the person at the time of the transgression. Frequency of similar/correlating transgressions. Time that has elapsed since the job applicant was convicted. Educational qualifications of the job applicant. Employment history and previous performance assessments of the job applicant. Misrepresentation of criminal status or withholding of information. However, in spite of departments efforts to conduct criminal record checks, they are not always successful. In 27 instances, departments appointed job applicants without the applicants revealing that they have criminal records. In other words, departments only became aware of the fact that the successful applicants have criminal records AFTER they were appointed. The consequences of a job applicant being appointed without revealing that he or she has a criminal record include the following: Disciplinary action has to be instituted against such newly appointed person for misrepresentation. The person may have to be dismissed. The post may have to be re-advertised resulting in additional cost to the employer. The permanent filling of the post may be delayed impacting negatively on service delivery makeup.indd 34 1/4/09 14:29:16

47 5.5 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 for a criminal record to be checked. A further 18 stated that reference checks takes between 21 and 30 days, whilst 28 indicated that it takes longer than a month. These trends are graphically illustrated as follows: Number of departments to to to and more Number of days Figure 3: The time it takes to conduct criminal record checks The fact that it took 46 departments (i.e ) three weeks or more for criminal record checks to be conducted is of concern. Such long delays in obtaining feedback on record checks may result in applicants receiving other offers of employment. The extended period of time it takes to conduct criminal record checks also impact on the vacancy rates and expenditure patterns of departments. The differences in the time it takes to conduct criminal record checking may be ascribed to the fact that larger departments advertise and fill more posts, resulting in a high number of records that must be verified. Understandably, the more records that need to be verified, the longer it will take. The SAPS has indicated that criminal record checking is done by the CRC for the Public Service as well as for private employers. Therefore, a high demand is experienced for the services rendered by the CRC. In addition, the CRC has limited search capacity, as the CRC is confined to conducting a maximum of searches per day. Such capacity constraints have contributed to the existing backlog experienced by the CRC. As a result of these challenges, the turn around time according to the SAPS for the CRC to conduct criminal record checks is between 5 working days and three months. 5.6 MOTIVATION PROVIDED WHEN DECIDING ON THE APPOINTMENT OF PERSONS WITH CRIMINAL RECORDS Selection committees have to apply their minds on the suitability of a person with a criminal record for appointment to a position. Based on the responses received from departments, the motivation provided by selection committees for the appointment of such persons 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 makeup.indd 35 1/4/09 14:29:16

48 sufficient time has elapsed since the crime was committed for the person to have been rehabilitated. Departments therefore appear to thoroughly consider the suitability of a person with a criminal record before deciding on his/her appointment. The reasons advanced by departments in instances where a job applicant with a criminal record was regarded as unsuitable for appointment are as follows: The post entails a position of trust and the nature of the crime committed mitigates against the appointment of the person. Misrepresentation made by the applicant regarding his/her criminal status. The criminal record relates to the requirements of the post (for example, a person convicted of fraud would be disqualified for a post of accountant). The applicant does not meet the minimum requirements of the post. 5.7 PROBLEMS EXPERIENCED WITH THE MANAGEMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD Information was solicited from departments and institutions regarding problems experienced by them during the management of job applicants with a criminal record. The majority of respondents indicated that the main problems experienced 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. Inadequate records are kept of criminal record check-results. Departments are yet to establish VFUs. No clear prescripts are in place regulating criminal record checks. Not all officials are familiar with the importance of criminal record checks. There is no discretion applied when considering the relevance of a criminal record vis-à-vis the vacancy that the person applied for. Criminal record checks place an administrative burden on departments. Human and financial resources are inadequate to manage the conducting of criminal record checks effectively and efficiently. A lack of support by the NIA during the setting up of VFUs within departments. Criminal record checks conducted are not always comprehensive. Staff employed at the NIA and SAPS are unwilling to assist departments. Departments have to administer large numbers of criminal record checks. A lack of communication exists between departments in respect of criminal record checks already conducted. The nature of criminal records is not compared with the responsibilities and/or requirements of the advertised posts. There are instances where persons with criminal records were appointed without checks being conducted. Criminal record checking is viewed as an unconstitutional and discriminatory practice. It is costly for departments to conduct criminal record checks. It is clear from the above that departments experience serious challenges with the management of job applicants with criminal records. Such challenges could be mitigated by clear policy guidelines and more rigorous recruitment procedures makeup.indd 36 1/4/09 14:29:16

49 5.8 NEEDS IDENTIFIED BY DEPARTMENTS Emanating from challenges experienced by departments, specific needs were identified by them to improve the management of job applicants with a criminal record. Understandably, different needs were highlighted by different departments. These needs and requirements were nevertheless analysed and summarised as follows: Clear policy guidelines and standards are required in order to ensure the management of job applicants with a criminal record in a consistent and uniform manner. Such guidelines should provide guidelines for handling different categories of criminal offences, e.g. murder (serious crimes) or traffic offences (less serious crimes), as well as the circumstances that would apply where a job applicant with a criminal record is already in the employment of a Department. More details are required regarding the circumstances giving rise to being convicted for committing a criminal offence. The Z83 Application for Employment Form should be reviewed with a view to encourage applicants to reveal their criminal records, where applicable. To this end, it should be categorically stated that Government will not deny employment to any applicant solely based on the fact that he/she has been convicted of a crime. The establishment of the VFUs needs to be fast-tracked so that departments can acquire the capacity to comply with the directive that all shortlisted candidates should be vetted. A need in this regard was identified by especially the Education Sector where recruitment processes result in up to job applications that have to be processed over a short period of time. The turn-around time for the vetting of job applicants should be improved. Fingerprints should be required from shortlisted job applicants as part of conducting criminal record checks. Ideally, such prints should be taken by hand held scanning devices and stored for a certain period on a central database that is accessible to all departments. Prior to making any offer of appointment to a job applicant with a criminal record, issues to be considered during deliberations by selection panels should include the relevance between the transgression and nature of the job, the period that has elapsed since the crime was committed and psychometric test results. Legal guidance should be provided as to when an appointment can be refused based on a criminal record. Based on an analysis of the feedback provided by departments, the main needs identified relate to policy guidelines, the fast-tracking of the establishment of the VFUs and improving the turn-around time for the vetting of job applicants. 5.9 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, only 26 departments indicated that such policies provide for the management of job applicants with a criminal record, whilst a further seven are in the process of drafting internal policies for this purpose. It is expected that recruitment and selection policies should deal with the important aspect of the management of job applicants with a criminal record. Such provisions would mitigate the risk associated with appointing persons with criminal records where their suitability for appointment to a specific occupational category has not been properly assessed. However, close scrutiny and analysis of the policies revealed that they address the management of job applicants with a criminal record inadequately. The importance of criminal record checks, and the allocation of responsibilities to determine the suitability of candidates for employment are for instance not specified in these policies. Instead, the majority of these polices merely stipulate that security clearance, reference checks and qualification verification/vetting are to be conducted prior to appointing a candidate makeup.indd 37 1/4/09 14:29:16

50 The following departments are nevertheless commended for the fact that their departmental recruitment and selection policies state that reference checks should also include the conducting of criminal record checks: Correctional Services. Justice and Constitutional Development. National Treasury. Social Development. Safety, Security and Liaison, Limpopo. Public Works, KwaZulu-Natal. In addition, the Department of Justice and Constitutional Development also has developed a policy document titled Integrity Assessment Procedure and Guidelines. Criminal record checks form part of the integrity assessment model and process contained in these guidelines. The guidelines stipulate, amongst others, the documentation required for integrity assessments, the cost involved and mitigating factors to be considered in instances where a job applicant has a criminal record 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. General information and details in respect of criminal record check results that are safeguarded and maintained by departments on their record systems include issues such as the advertisement for the specific vacant post, stating the inherent job requirements; the date on which the criminal record check was requested as well as the date on which it was received; the outcome of the criminal record check conducted; a report by the VFU within the Department; the outcome of the court proceedings and sanction imposed; proof of the serving of the sentence imposed and/or fine paid; and reports by the Parole Board. However, out of the 137 departments and institutions that participated in the investigation, 49 (35%) indicated that no record is kept of criminal record check results. In such instances departments are not able to keep track of persons in their employment that have criminal records, and may be exposed to future risks if such persons are transferred or promoted internally to positions where their criminal record mitigates against their employment SUMMARY The current practices employed by departments in managing job applicants with a criminal record mainly consist of pre-employment screening PRIOR to the appointment of employees on a full-time basis in the Public Service. However, serious concerns were raised in respect of the consequences of conducting screening after such employees are appointed. Issues taken into account when determining the suitability of a job applicant with a criminal record for appointment include the nature of transgressions or criminal acts committed and the risk posed by the transgression in relation to the requirements and nature of the job to be performed. However, the limited policy guidance on how to manage job applicants with a criminal record makes decisions by departments in this regard that more complicated. Various other problems are experienced by departments in managing job applicants with criminal records. These include the time it takes to conduct criminal record checks, job applicants not revealing that they have criminal records and uncertainty regarding the responsibility to initiate criminal record checks makeup.indd 38 1/4/09 14:29:16

51 Needs identified by departments to improve the management of job applicants with a criminal record include policy guidelines on the management of job applicants with a criminal record, the revision of the Z83 Application for Employment Form, the fast-tracking of the establishment of VFUs, and improving the turn-around time for the vetting of job applicants. The problems identified, as well as needs that departments have expressed, are addressed in the next chapter dealing with recommendations makeup.indd 39 1/4/09 14:29:16

52 Chapter Six Recommendations and Conclusion makeup.indd 40 1/4/09 14:29:17

53 6.1 INTRODUCTION The PSC has noted through this investigation that departments experience a number of problems with the management of job applicants with criminal records. These problems relate mostly to the limited policy direction available to departments and the fact that the National Vetting Strategy has not been fully implemented. Based on the constraints identified during this investigation, and the inputs provided by departments, recommendations are provided in this Chapter to improve the management of job applicants with criminal records. Concluding remarks are also provided. 6.2 PROVIDING COMPREHENSIVE NATIONAL NORMS AND STANDARDS Given the limited policy direction on the employment of persons with criminal records, the PSC is of the view that the Public Service Regulations should be amended to provide direction in this regard. The proposed stipulations of the Draft Public Service Regulations, which provides for periods of prohibition on employees dismissed for certain categories of misconduct should be supplemented with provisions outlining how applicants with criminal records should be managed. Such provisions should take into consideration the principle of restorative justice. The Regulations could be supplemented with guidelines which outline factors that should be taken into consideration by departments when considering the suitability of candidates with criminal records for specific occupational categories. The Z83 Application for Employment Form which is prescribed by the DPSA should also be reviewed with a view to encourage applicants to reveal their criminal records. It should be stipulated that Government will not deny employment to any applicant solely based on the fact that he/she has been convicted of a crime. 6.3 DEVELOPING AND IMPLEMENTING DEPARTMENTAL SPECIFIC POLICIES Given the limited policy direction highlighted in the report, 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. Such policies could provide for the following: The implementation of the National Vetting Strategy in the Public Service, as addressed in the DPSA s circular minute 14/1/1/P of 23 November 2007, through the conducting of personnel suitability checks and establishment and location of a VFU. Indicating in advertisements that candidates may be subjected to employment vetting, including criminal record checking. Whether unspent convictions (i.e. persons released from prison prior to the completion of their full term) will bar/not bar applicants from employment. Processes and procedures to be followed in order to determine the suitability of a person for appointment, including the job-specific requirements of a position, job evaluation, risk assessment and the posing of relevant questions in this regard during the selection interview. Factors to consider in the event that a job applicant has a criminal record, e.g. the relevance of the crime committed compared to the requirements of the post, a repeat of similar or other criminal offences and mitigating factors. Instances where job applicants are excluded from specific areas of employment on account of their criminal record should be fully motivated in writing (in order to enable departments to respond to queries regarding the fairness of processes and/or claims of discrimination). The fact that the merits of a decision to appoint or not appoint a person with a criminal record should be based purely on the relationship between the nature of the conviction or crime, and the core competencies and requirements of the job. 22 Republic of South Africa. Department of Public Service and Administration. Draft Public Service Regulations, makeup.indd 41 1/4/09 14:29:17

54 The role-player(s) that will be responsible for conducting criminal record checks on behalf of the Department or Province should be identified and specified. The obligation to report a criminal record or any misrepresentation or concealment of a criminal record to job applicants current employers. The disciplinary procedure to be followed in disqualifying a person from appointment in instances where false information was provided or a criminal record concealed. Appointment letters should indicate that in the event of any false information provided, or the concealment of a criminal record, such appointment will be regarded as null and void. 6.4 ADHERING TO CRITERIA FOR CRIMINAL RECORD CHECKS The PSC has noted that criminal record checks are done in an inconsistent manner across departments. Departments need to adhere to the criteria provided by the NIA in its guidelines on personnel suitability checks 23. These criteria should inform the development of policies, or the amendment of existing policies, and include the following: Criminal records relating to the struggle, i.e. with a political motive, prior to the suspension of the armed struggle must not be considered. The criminal record should have a direct threat to the security competency of the person. Juvenile offences must not be considered unless it indicates a tendency to criminality. Minor offences, e.g. drunken driving, must not be considered unless the crime had an impact on the person s ability to function, or indicates a tendency to criminality. Offences committed that are listed in Schedule One of the Criminal Procedure Act, 1977, and that are younger than 10 years from the date of conviction, is a disqualifying factor (the reason for this is that Schedule One offences, e.g. murder, rape, sodomy, bestiality and child abduction, are usually associated with non-rational behaviour and long term jail sentences). A person who continues with so called lesser crimes, i.e. common theft, must be considered a habitual criminal and this must be measured against the duties and responsibilities of the post. Criminal records relating to substance dependency should be carefully reviewed (whilst the possession of dagga is illegal, trading with addictive substances is for instance regarded as more serious than mere possession). Only printouts received from the SAPS, i.e. criminal record check results, marked as Guilty may be used to disqualify a job applicant. Printouts marked as Not guilty or Withdrawn may not be used as a disqualifying factor. Only printouts received from the SAPS marked as In process must be followed up to determine the details of the charge. 6.5 LOCATION OF THE VETTING FIELDWORK UNIT According to the generic vetting structure developed by the DPSA, it is advised that VFUs are to be located within the corporate services components of departments. However, there are two schools of thought in this regard. Some departments are of opinion that the task and responsibility of conducting personnel suitability checks should be located within the Security Management Unit, whilst others feel it belongs within the Human Resource Management Unit. There is no correct or incorrect location for this Unit, and departments might even consider placing it within the Risk Management Component. Therefore, 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. However, note should be taken of Chapter 3 of the Minimum Information Security Standards 24, issued to departments by the NIA. The Standards state that 23 Republic of South Africa. National Intelligence Agency. Personnel Suitability Checks (PSC). Guidelines for Interpretation & Evaluation of Record Checks. Version 1. Pretoria Republic of South Africa. The National Intelligence Agency. Minimum Information Security Standards. Pretoria makeup.indd 42 1/4/09 14:29:17

55 Heads of Department bear the overall responsibility for the provision and maintenance of security; and security is an integral part of the management function. Hence, the location of the Security Component must be such that the line of authority does not obstruct access to the Head of Department. 6.6 IMPROVING THE TURN AROUND TIME FOR CRIMINAL RECORD CHECKS Eighteen (18) of the departments that participated in the investigation indicated that it takes between 21 and 30 days for a criminal record to be checked (from the time a request is made until feedback is received), whilst 28 departments indicated that it takes longer than one month. The PSC is of opinion that turn-around times of longer than one month are unacceptable and must be improved upon since candidates with scarce skills will be lost if another opportunity presents itself during this period. Care must therefore be taken by departments to ensure that each job application by a person with a criminal record is treated on merit, taking into account the type of crime committed, job requirements and duties attached to the post; and the security clearance obtained from the NIA in respect of job applicants already in the employment of the Public Service, with specific reference to members of the Senior Management Service, should feed directly into the human resource process of selection. Furthermore, the CRC of the SAPS is inundated with requests by departments and institutions for, amongst others, the conducting of criminal record checks. Hence, in an effort to reduce the turn-around time, it is recommended that the feasibility of other service providers conducting criminal record checks should be investigated. Such feasibility study should be undertaken by the DPSA in collaboration with the NIA and SAPS. Alternatively, the feasibility of creating a single database for the Public Service should be investigated by the DPSA. Such database must be accessible to all departments at all spheres of Government and would be for information purposes only. Departments should not be able to manipulate or edit data on the database. Existing information on current databases maintained by the NIA and SAPS could be supplemented by information relating the results of personnel suitability checks conducted, especially in respect of persons already employed by the Public Service. 6.7 EFFECTIVE RECORD KEEPING The onus is on each and every department to ensure that record is kept of all aspects relating to the management of job applicants, including those with a criminal record. Yet, the investigation revealed that a large number of departments (49 out of the 137 that participated in the investigation or 35%) neglect this important aspect of the administration of the filling of posts. In addition, Chapter 1 of Part VII/H of the PSR, 2001, determines that a HoD shall keep a record of each employee and of each post on the approved establishment in accordance with the National Minimum Information Requirements. This requirement was brought to the attention of all departments by the DPSA through its Circular 4 of makeup.indd 43 1/4/09 14:29:17

56 In view of the above, it is recommended that departments, on a six monthly basis, update and maintain accurate records of the following: 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. For purposes of the above recommended record keeping, it is advisable that departments consult the Best practice model to keep and manage paper-based employee records 25 issued by the DPSA during ADJUSTING THE PERSONNEL AND SALARY ADMINISTRATION SYSTEM The PERSAL 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. In the event that the field relating to criminal record details is not completed, it should not be possible for a department to finalise that particular appointment on the System. The PSC is of opinion that the single database proposed in paragraph 6.6 above should be compatible with PERSAL, or feed directly into PERSAL, as this will enhance communication between departments regarding job applicants with a criminal record. 6.9 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. However, as indicated in the findings in this report, various challenges are experienced by departments in this regard. The limited guidance provided in the existing policy framework could result in inconsistent approaches by departments in dealing with job applicants with criminal records. The importance of having clear criteria to determine whether a person s criminal record prohibits his or her employment in the Public Service is self explanatory. In order to assist departments in applying such criteria in a consistent manner, the PSC made specific recommendations 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. 25 Republic of South Africa. Department of Public Service and Administration. Best practice model to keep and manage paper-based employee records. Pretoria makeup.indd 44 1/4/09 14:29:17

57 Annexure A SURVEY ON THE MANAGEMENT OF JOB APPLICANTS WITH A CRIMINAL RECORD Name of Department/Institution: Name of person completing the questionnaire: Position/rank of person completing the questionnaire: Contact details of person completing the questionnaire: Name & contact details of supervising official: 1. As at 31 March 2008, how many persons were permanently employed on a full-time capacity in the Department/Institution? 1.1 African 1.2 Coloured 1.3 Indian 1.4 White 1.5 TOTAL Female Male Total 2. If applicable, how many of the above indicated full-time employees have a criminal record? 2.1 African 2.2 Coloured 2.3 Indian 2.4 White 2.5 TOTAL 2.6 Not applicable as NO person has a criminal record 3. In how many instances during each of the previous three financial years did job applicants who revealed in their applications for vacant posts that they had a criminal record, get short-listed and subsequently interviewed? 3.1 African 3.2 Coloured 3.3 Indian 3.4 White 3.5 TOTAL 2005/ / /2008 Female Male Female Male Female Male 3.6 Not applicable as NO persons with a criminal record were shortlisted makeup.indd 45 1/4/09 14:29:18

58 4. How many of the job applicants indicated in Question three above were appointed by the Department/Institution during each of the previous three financial years? 4.1 African 4.2 Coloured 4.3 Indian 4.4 White 4.5 TOTAL 2005/ / /2008 Female Male Female Male Female Male 4.6 Not applicable as NO persons with a criminal record were shortlisted. 5. Has your Department/Institution been conducting pre-employment screening to determine whether job applicants have criminal records? 5.1 Yes 5.2 No 6. If yes, in how many instances during the previous 12 months 6.1 were job applicants subjected to criminal record checks? 6.2 did criminal record checks reveal that applicants have a record where such applicants did NOT indicate it in their applications? 7. In how many instances during the previous 12 months were job applicants appointed, without them revealing that they have criminal records (in other words: the Department/Institution only became aware of their criminal records AFTER they were appointed)? 8. In how many instances during the previous 12 months were disciplinary steps taken by the Department/ Institution against employees with criminal records for acts of misconduct related to their criminal records? 9. Is it stipulated in all advertisements of vacant posts that applicants will be subjected to a background screening programme, including criminal record checks? 9.1 Yes 9.2 No 10. Are criminal record checks done by the Department/Institution, as part of a suitability check, PRIOR to the appointment of employees on a full-time basis? 10.1 NO criminal record checking is done 10.2 In all instances 10.3 ONLY if the job applicant indicated that he/she has a criminal record 10.4 ONLY if the criminal record relates to the responsibilities of the vacant post 10.5 ONLY on an ad-hoc basis by means of sampling 10.6 ONLY in respect of the filling of posts on salary levels 13 and higher (SMS) makeup.indd 46 1/4/09 14:29:18

59 10.7 ONLY in respect of the filling of posts on salary levels 11 and higher (MMS) 10.8 ONLY in respect of the filling of posts on salary levels 9 and higher 10.9 ONLY in respect of the filling of posts in certain components, e.g. Procurement ONLY in respect of the filling of certain posts, e.g. Chief Financial Officer Other instances: 11. At what stage of the selection process are criminal record checks done? 11.1 Not applicable as NO criminal record checking is done 11.2 PRIOR to compiling a shortlist 11.3 AFTER the shortlist is compiled, but PRIOR to conducting interviews 11.4 Once interviews were conducted 11.5 AFTER approval for the appointment of the successful candidate was obtained 11.6 ONLY after a person is appointed Other stage: 12. If applicable, has a Vetting Fieldwork Unit been established within the Department as specified in the DPSA s circular 14/1/1/P, dated 23 November 2007? 12.1 Yes 12.2 No 13. If NO Vetting Fieldwork Unit has been established, by whom is criminal record checking done for the Department/Institution? 13.1 Not applicable as NO record checking is done 13.2 Department liaises with previous employer to obtain information 13.3 During an interview with the job applicant 13.4 Department liaises with persons listed as references on applicants CVs 13.5 Criminal record checks are outsourced to a private company, namely 13.6 Criminal record checks are done by the National Intelligence Agency (NIA) 13.7 Criminal record checks are done by the South African Police Service (SAPS) Other manner: 14. What is taken into account when determining the suitability of a job applicant with a criminal record for appointment? 14.1 NOT sure 14.2 Nature of the transgression 14.3 Relevance between transgression & nature of job 14.4 Age of person at time of transgression 14.5 Frequency of similar/correlating transgressions 14.6 Time elapsed since conviction 14.7 Applicant s educational qualifications 14.8 Applicant s work history & performance assessments Other issues considered: makeup.indd 47 1/4/09 14:29:18

60 15. How many working days does it take for a criminal record to be checked, i.e. from the time a request is made until feedback is received? day 15.2 Between 2 & 4 days 15.3 Between 5 & 10 days 15.4 Between 11 & 20 days 15.5 Between 21 & 30 days 15.6 Between 1 & 2 months 15.7 Between 2 & 3 months 15.8 Longer than 3 months Other: 16. Please indicate the number of job applicants with a criminal record that were appointed in a fulltime capacity during each of the previous three financial years by the Department/ Institution, per occupational category: 16.1 NO person with criminal record appointed 16.2 Agricultural Related 16.3 Artisan, Technical & Support Personnel 16.4 Clerical/Administrative 16.5 Communication & Information Related 16.6 Defence Related 16.7 Economic/Financial Related 16.8 Engineering Related 16.9 Emergency Services & Related Human Resource Related Information Technology & Related Investigative & Law Enforcement Legal Related Medical Sciences Related Medical Technology Related Natural Sciences Related Nursing & Health Care Procurement/Supply Chain Related Safeguarding & Security Related Secretarial Senior Management (salary levels 13 and higher) Skilled manual labourer Social Services & Related Teaching/Lecturing/Training Un/semi-skilled manual labourer 2005/ / /08 Other occupational categories: makeup.indd 48 1/4/09 14:29:18

61 17. Please indicate the general categories of crime committed (by the above indicated job applicants), as well as the occupational categories in which such persons were appointed: 17.1 Fraud & corruption 17.2 Theft 17.3 Drunken driving 17.4 Armed robbery 17.5 Murder 17.6 Assault 17.7 Rape Occupational categories Other crimes & occupational categories: 18. What motivation was provided by the Selection Committee for the appointment of the above indicated job applicants? 18.1 Most suitable candidate 18.2 Meeting all the requirements of the advertised post 18.3 Criminal record does not relate to the requirements of the post 18.4 Already served his/her sentence or paid a fine 18.5 Not applicable as NO person with a criminal record was appointed Other reasons: 19. What motivation was provided by the Selection Committee for the NON appointment of the unsuccessful job applicants indicated in question three above (i.e. job applicants with a criminal record that were shortlisted and interviewed, but not appointed)? 19.1 Not the most suitable candidate 19.2 Not meeting all the requirements of the advertised post 19.3 Criminal record does relate to the requirements of the post 19.4 Not meeting the organisational requirements 19.5 N/A - NO person with a criminal record was shortlisted & interviewed Other reasons: 20. Which of the following problems is experienced with the management of job applicants with a criminal record? 20.1 Job applicants do not reveal in their applications that they have criminal records 20.2 Urgent filling of posts does not allow for criminal record checks to be done 20.3 NO action taken against job applicants NOT revealing that they have a criminal record 20.4 Inadequate action taken against job applicants NOT revealing that they have criminal records 20.5 Criminal record checks are NOT done prior to the compiling of shortlists makeup.indd 49 1/4/09 14:29:19

62 20.6 Criminal record checks are only done AFTER a person is appointed 20.7 Criminal record checks are time consuming 20.8 Results of criminal record checks are NOT dealt with in a confidential manner 20.9 NOT clear who is responsible for initiating criminal record checks, line or staff functionaries Responsibility to manage criminal record checks frequently passed on Inadequate record is kept of criminal record check-results Vetting Fieldwork Unit yet to be established within the Department/ Institution Lack of support by NIA during setting up of a Vetting Fieldwork Unit Criminal record checks are placing an additional administrative burden on the Department Criminal record checks are NOT always comprehensive and accurate Different criminal record check-standards apply to applicants for posts at different levels Staff employed at the NIA are unwilling to assist the Department and not cooperative It takes too long for the NIA to respond to requests in this regard Staff employed at the SAPS are unwilling to assist the Department and not co-operative It takes too long for the SAPS to respond to requests in this regard NO clear prescripts/policies are in place regulating criminal record checking NOT all line functionaries are familiar with the importance of criminal record checks Staff functionaries follow incorrect procedure when requesting criminal record checks Resources are inadequate to manage criminal record checks effectively & efficiently Large number of criminal record checks must be administered by the Department Lack of communication between departments in respect of criminal record checking NO discretion applied in considering the relevance of criminal record vis-à-vis the vacancy Known instances of persons with criminal records appointed without checks being done It is costly for the Department to do criminal record checks Criminal record checking is an unconstitutional and discriminatory practice The nature of criminal records NOT compared with responsibilities/ requirements of the post Other problems experienced: makeup.indd 50 1/4/09 14:29:19

63 21. Does the Department/Institution have an internal policy in place regulating the recruitment, selection and appointment of employees? 21.1 Yes 21.2 No 22. If the Department/Institution does have a policy in place that regulates the recruitment, selection and appointment of employees, is provision made in such policy for the management of job applicants with a criminal record? 22.1 Yes 22.2 No 22.3 Not applicable (NO policy) If YES, in which section/paragraph of the policy is provision made? 23. Which of the following legislation, prescripts and documents are consulted by the Department/ Institution during the management of job applicants with a criminal record? 23.1 Constitution of the Republic of South Africa, Basic Conditions of Employment Act, Public Service Act, Employment Equity Act, Labour Relations Act, Regulations in terms of the Labour Relations Act, Promotion of Equality and Prevention of Unfair Discrimination Act, Public Service Regulations, National Vetting Strategy in the Public Service Application for employment form (Z 83) White Paper on Affirmative Action in the Public Service White Paper on Human Resource Management in the Public Service White Paper on the Transformation of the Public Service Handbook for members of the Senior Management Service Internal Departmental Delegations Other specific legislation (e.g. Employment of Educators Act, 1998): 24. How does the Department/Institution maintain a record of the results of criminal record checks? 24.1 NO record is kept 24.2 On the individual s personal file 24.3 Electronically on a database 24.4 Both manually and electronically Other system: makeup.indd 51 1/4/09 14:29:19

64 25. If record of criminal record check-results is kept, please indicate which of the following details in this regard are safeguarded on a record system? 25.1 Not applicable as NO record is kept 25.2 Advertisement for vacant post, indicating inherent job requirements 25.3 Date on which criminal record check was requested 25.4 Date on which the results of the criminal record check were received 25.5 Outcome of criminal record check 25.6 Report by the Vetting Fieldwork Unit within the Department/Institution 25.7 Outcome of court proceedings & sanction imposed 25.8 Proof of serving of sentence/fine paid (including dates) 25.9 Parole Board reports Other details: 26. What specific needs do you have regarding the management of job applicants with a criminal record? 27. What specific proposals do you have in order to ensure the effective management of job applicants with a criminal record? 28. Kindly indicate any other comment(s) that you might have regarding the management of job applicants with a criminal record: makeup.indd 52 1/4/09 14:29:19

65 NOTES makeup.indd 53 1/4/09 14:29:19

66 NOTES makeup.indd 54 1/4/09 14:29:19

67 NOTES makeup.indd 55 1/4/09 14:29:19

68 NOTES makeup.indd 56 1/4/09 14:29:19