The Private Security Industry Regulatory Authority Act, 56 of 2001 (PSIRA) disqualifies persons from being employed in the security sector if they have been convicted of a criminal offence. An applicant for employment in the security industry applied in 1996 and thereafter for promotion in July 2010. He had criminal convictions for rape and assault with intent to cause grievous bodily harm imposed on him in 1981 and 1991 respectively. He was not imprisoned for either of the two offences. He failed to disclose these convictions. On 4 November 2010 he was dismissed, ostensibly for ‘misrepresenting his criminal record’. The CCMA reinstated him with retrospective effect. On review the Labour Court held there had been a non-disclosure of the offences. But his reinstatement was confirmed. Although there may have been a valid reason to dismiss related to conduct, the reason could not be regarded as fair. The employer failed to prove that the necessary relationship of trust and confidence had been seriously damaged or destroyed by the non-disclosure.
In G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO (C 389/2011)  (10 July 2014) justice Lagrange confirmed that section 23(1)(d) of the PSIRA would have disqualified the employee from registering as a security service provider if he had been convicted of either of the offences after November 1991, and he could not have been lawfully employed as such. The arbitrator correctly held that the employer had not breached the regulation because the last conviction predated the 10 year period prior to the commencement of the PSIRA.
Justice Lagrange noted that at the arbitration hearing the employer’s witness confirmed that the employee was good at his job with a clean record and that no problems had been experienced with performance, and hence his application for promotion. The main difficulty expressed by the employer’s witness at the arbitration was that if they retained him in employment the employer might face the prospect of deregistration. A fine could also imposed if it was discovered that a security officer with a criminal record was being employed.
It is again unfortunate that justice Lagrange used language more appropriate to criminal proceedings when finding that N was ‘guilty of such misconduct’. Surely the order could simply have read as follows:
‘18.2 The first respondent’s finding that the third respondent did not misrepresent [is not guilty of misrepresenting] his criminal record when applying for employment in 1996 and when applying for promotion in 2010 is reviewed and set aside and substituted with a finding that he did misrepresent his criminal record [was guilty of such misconduct]’.
Extracts from the judgment of justice Lagrange with the employee’s name not disclosed
. . . .
 N referred his dismissal to the CCMA, claiming that it was substantively unfair. The arbitrator accepted that N was not aware of his criminal record and therefore was not guilty of misrepresentation when he failed to disclose it by indicating that he had no criminal record when he applied for the job. The arbitrator also found that since PSIRA only came into effect in November 2001 and, given that the provision relating to the prohibition on employment of a person with a criminal conviction only applied to someone found guilty of an offence 10 years immediately prior to the application to be registered with the regulatory authority, N was not in breach of those regulations because the date of his last conviction was August 1991, which was more than 10 years prior to the commencement date of that Act.
 The arbitrator also found that even though criminal records had not been centralised in 1996 it was incumbent on the applicant to verify if an employee had been truthful in their declaration about their criminal record, however onerous that task might have been.
 Having effectively found N not guilty of the misconduct for which he was dismissed, the arbitrator somewhat confusingly dealt with the relief on the basis that he was deciding whether dismissal would be an appropriate sanction in the circumstances, before concluding that N’s dismissal was substantively unfair. The arbitrator then concluded that there was no reason not to reinstate N retrospectively to the date of his dismissal.
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Grounds of review
 There are three principal grounds of review on which the applicant relies.
First and foremost, it contends that the arbitrator could not have reasonably concluded that N was unaware he had been convicted of criminal offences and therefore did not knowingly misrepresent the status of his criminal record.
Secondly, the applicant contends that the arbitrator acted ultra vires in ordering N’s reinstatement because the applicant had at all material times indicated that he sought compensation and not reinstatement and only mentioned that possibility in closing argument.
Thirdly, the applicant contended that the arbitrator misconstrued the nature of the enquiry by failing to appreciate that it was fair and reasonable for it to require an applicant for employment to disclose a criminal conviction, but instead placed the onus of establishing this fact on the employer.
A fourth ground of review, related to the question of relief is that in any event the arbitrator failed to consider the fact that:
11.1 in his disciplinary enquiry N had presented a written statement in which he had recorded he did not believe he had a criminal record because he had not been ‘in jail’, but stated that he had appeared in court in respect of the second conviction for assault, and;
11.2 following the applicant’s dismissal the applicant was obliged to apply for his de-registration as a security service provider in terms of s 23(1)(f) of the Private Security Industry Regulation Act , 2001 and that in order for him to re-register he would have to have shown he was ‘a fit and proper person to render as security service’ in terms of section 23.
 It would appear that although the arbitrator’s attention was drawn to the statement made by the applicant at the time of the preliminary investigation by the employer in October 2010, the arbitrator failed to have regard to the fact that in that statement the applicant admits that he went to court in respect of the assault charge and that his brother obtained a lawyer to defend him and that a fine was imposed on him. This contrasts strongly with his version at the arbitration that he never appeared in court in respect of the second conviction. In respect of both incidents for which he was charged and convicted, a sentence was imposed.
I agree with the applicant that it is difficult to understand how the arbitrator could reasonably have concluded that N was unaware of the status of his criminal record and could have denied having any criminal conviction.
Consequently, I must agree that the arbitrator’s finding that N did not knowingly failed to disclose his criminal conviction when he was employed and when he applied for promotion is one that cannot be reasonably justified on the evidence before him, and must be set aside.
 In the circumstances, the arbitrator’s finding must be replaced with a finding that the applicant was indeed guilty of not disclosing his criminal conviction on both occasions. This naturally requires the court to reconsider the appropriate sanction and relief if any flowing from the substitution of the finding on N’s guilt.
 It is clear from section 23(1)(d) of the PSIRA Regulation Act, that if the applicant had been convicted of either of the offences for which he was found guilty after November 1991 he would not have qualified for registration as a security service provider, and could not have been lawfully employed as such by the applicant. The arbitrator was correct in finding that N had not acted in breach of that regulation because his last conviction predated the 10 year period prior to the commencement of the PSIRA.
 In this regard, it is important to note that at the arbitration hearing the applicant’s witness had confirmed that N was a good employee with a clean record and that she had never had any problems with his performance hence his application for promotion.
The main difficulty expressed by the applicant’ s witness at the arbitration was that if they retained N in employment the applicant might face the prospect of deregistration and a fine effort (sic) was discovered that it was employing a security officer with a criminal record. The witness is further recorded in the arbitrator’s notes (which constitute the only record of the oral evidence) as having testified that he was sure that if N had his criminal record expunged the applicant would reconsider employing him.
 Thus, on the available evidence trust issues arising from the misrepresentation do not appear to have been the applicant’s principal concern despite the fact that N was guilty of dishonesty. On the evidence of its own witness it was the possible breach of PSIRA that was the primary consideration. It seems reasonable to conclude in the circumstances, and that the applicant probably would not have dismissed N if it had not believed it would be employing him contrary to the provisions of PSIRA, but instead would have imposed a lesser sanction. Had the applicant’s witness testified that in the light of the misrepresentation, the applicant would have dismissed N irrespective of its belief it would be in breach of PSIRA on account of its inability to trust him anymore, a different conclusion might have been warranted, but such a conclusion cannot be justified on the applicant’s own evidence at the arbitration.
 In view of this evidence, it seems that a more appropriate sanction would have been a final written warning for dishonesty, even if the arbitrator’s conclusion that the dismissal was substantively fair should stand. Accordingly, the relief awarded by the arbitrator in consequence of the unfair dismissal must be substituted, because the basis for finding the dismissal unfair rests on a different footing from that of the arbitrator who found it unfair based on a finding of not guilty.
 In view of the analysis above,
18.1 The applicant’s late filing of the review application and the third respondent’s late filing of his answering affidavit are condoned.
18.2 The first respondent’s finding that the third respondent was not guilty of misrepresenting his criminal record when applying for employment in 1996 and when applying for promotion in 2010 is reviewed and set aside and substituted with a finding that he was guilty of such misconduct.
18.3 The relief awarded by the first respondent in paragraph 35 of his award is substituted with the following (using the citation of the parties as they appear in the award):
18.3.1 The respondent, G4S Secure Solutions SA (Pty) Ltd is ordered to reinstate the applicant, TN with retrospective effect to 1 August 2011 on the same terms and conditions applicable prior to his dismissal and to pay the applicant his arrear remuneration calculated at the rate of remuneration he received at the time of his dismissal, for the period 1 August 2011 to the date of his return to work within 14 days of his return to work in terms of this order.
18.3.2 The applicant must report for work within 14 days of this judgment.
18.4 No order is made as to costs.