July 31, 2018
Is non-disclosure of previous misconduct or fraud by an employee a ground for termination?

Common law classifies certain contracts, such as insurance contracts, as contracts of utmost good faith. A party to this type of contract has an obligation to disclose all material facts to the other party before the contract is concluded. If they fail to do so, the other party may cancel the contract. Contracts of employment do not fall within this category of contracts and as such, an employee need not volunteer information about their previous misconduct or fraudulent or criminal acts when applying for a job save for in the specific circumstances discussed below.

In the South African case of Hoffman v Moni’s Wineries Ltd 1948 (2) SA 163 (C), the Supreme Court had to consider whether an employment contract fell under the genre of contracts in respect of which the utmost good faith was required. The Plaintiff had sued for damages for wrongful dismissal. His contract had been terminated when it was discovered that he had been criminally convicted in the previous 12 years for an offence under the provisions of the Insolvency Act, 1916 and had served a term of imprisonment. The Court held that contracts of employment are not of utmost good faith and that therefor there was no duty on an employee to disclose their criminal record.

The court however pointed out that the position would have been different if the employer had asked the employee about his criminal record and the employee failed to give a truthful answer, as was the case in MEC for Education v. Mgijima and others, Labour Court of South Africa case No. JR 1846/09 where the Claimant was specifically asked if she had any ‘skeletons in the closet’ she had replied in the negative, even though she had pending disciplinary proceedings in her previous employment.

In Andrew Ngigi Njoroge v Kenya Commercial Bank [2014] eKLR, the claimant had failed to disclose the reason for his dismissal from his previous employment, when asked. Relying on the decision made in the above South African case, the court ruled that the non-disclosure by the Claimant was manifestly wrong and became a subsequent justification for his dismissal in terms of Section 43 as read with Section 47(5) and 45(1) and 2(c) of the Employment Act, 2007.

The Kenyan position on this matter therefore appears to be that an employee is not under any obligation to self-incriminate themselves by disclosing misconduct or fraud from previous employment unless the employer specifically asks about this conduct, either as a question in the application form or verbally during the recruitment process.

For further legal advice with respect to this alert, please contact our Partner Kananu at Mutea.K@dalyinamdar.co.ke.

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