FAILED TO DISCLOSE FRAUD QUESTION

You're duty-bound to disclose integrity issues to new employer - court

Nyeri court rules prospective employer must be told of ethical concerns

In Summary

• Dedan Kimathi University accountant Michael Ndishu dismissed after university discovered he had been dismissed from Masinde Muliro for fraud.

• Ndishu said the decision was made after he was employed at Dedan Kimathi but court ruled  he should have notified his new employer.

Nyeri judge rules you must disclose past integrity issues to a prospective employer.
FULL DISCLOSURE: Nyeri judge rules you must disclose past integrity issues to a prospective employer.
Image: FILE:

It is your responsibility to disclose to your potential employer any integrity concerns from your past. 

In a ruling last week, Nyeri High Court Justice Nzioka wa Makau said failure to disclose ethical issues is a breach of terms of service and grounds for dismissal.

The judge ruled on a case involving a Dedan Kimathi University lecturer accountant, Michael Chege Ndishu, was dismissed for failing to inform the university that he had a fraud cause from his former employer.

Ndishu, was dismissed from the university where he had worked for six years just after he submitted documents to be considered for a higher position in the same institution.

The university said a background check on the accountant being considered for promotion to deputy finance boss revealed that he had been dismissed due to fraud and he did not appeal the decision.

Judge Makau said whereas there was no proof of financial impropriety at MMUST, Ndishu was duty-bound to disclose the process that he was undergoing.

“If he had cleared with MMUST, [there was]the need to clear his name and put the record straight. The fact that he attended the disciplinary meeting but failed to disclose this fact to his new employer breached his terms of service and was grounds for the termination that he faced,” the judge said.

Ndishu, dissatisfied with the decision, went to court seeking compensation of about Sh4 million for what he termed unfair termination. He said he was invited for an interview for the position of deputy finance officer and he was required to present his original documents.

“Upon submission of his documents, I was surprised to be served with a suspension letter with half pay dated June 8, 2016, pending investigations of alleged gross misconduct,” he told the court.

The accountant said the allegations included presenting false information to the university’s interview panel regarding his employment Masinde Muliro University of Science and Technology (MMUST) in order to secure employment.

They also included failure to disclose to the interview panel material facts that he was facing disciplinary charges at his former employer MMUST, and that he concealed his dismissal from MMUST on disciplinary grounds.

Ndishu testified that he tendered his resignation on July 2, 2009, and his last day with MMUST was July 8, 2009, since he gave up his accumulated leave days in place of a notice. He stated that MMUST did not reply to his resignation letter until July 13, 2009 and that at the time they stated that he had already cleared and had stopped working.

He stated that in its reply MMUST said it would not accept the resignation but it did not allude to misappropriation and instead said there was work to be done.

The accountant said MMUST issued him with a suspension letter on July 14, 2009, which was 12 days after his resignation and 20 days after his job offer by Dedan Kimathi University.

“This was 25 days after my initial interview before I received my employment letter on June 24, 2009,” he told the court.

He that his employer MMUST issued him with a recommendation which he presented at the interview on June 19, 2009, which he said, was enough proof that he had no pending disciplinary issues.

“On August 8, 2011, I was dismissed for conspiring and defrauding MMUST of Sh542,850,” he said.

He said that he had attended the disciplinary hearing and was told that he was guilty of communicating to the Ministry of Education and was dismissed on that ground.

“The case of fraud was malicious and could not be proven and was therefore dropped,” he said.

He said that he could not have appealed the decision because he was notified of the verdict more than 14 days after the decision.

Through their lawyer Nelius Mwangi, Dedan Kimathi said Ndishu had been shortlisted by the Committee of Council for the position of assistant finance officer. When he presented his documents to the committee it came to their knowledge that had been dismissed for fraud.

“The Council did due diligence as the position was so sensitive. That is when the vice chancellor of MMUST informed us that Ndishu was dismissed for issues related to fraud and he never appealed against that decision,” she said.

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(Edited by V. Graham)