WHEN EMPLOYEES USE FAKE AND FORGED ACADEMIC CERTIFICATES TO SECURE EMPLOYMENT

James WaNjeri - Employment Lawyer

In recent weeks, the Country has been rocked by allegations of an unqualified lawyer who was masquerading as an advocate and representing clients. Hot on the heels of that saga, the Kenya Medical Practitioners and Dentists Council issued a media alert deregistering a fake surgeon who had been practicing medicine for 16years and carrying out surgeries. He had procured his license by presenting forged academic records. In countries like Kenya, where the requirement to have proper academic qualifications is a great determinant of whether you get a good job or a promotion, academic fraud is likely to be used as a means to an end?

What happens when an employee uses fake academic certificates to obtain employment or promotions, or engages in identity theft by using someone else’s credentials?

Justice Makau of the Employment and Labour Relations Court was confronted with such a case in Matambo vs Kenya Ports Authority (2017) eKLR. The employee filed a suit before the court seeking to be reinstated to his position and to prevent the employer from evicting him from the staff house he was occupying. According to the employee, he started working for the employer as a casual docker in 2001 and the only document needed was his National Identity Card. Subsequently, he presented his academic certificates and was appointed Sailor Grade HG4 in 2004 and later applied for and was promoted to a Coxswain Grade HG2 in 2007. In his application for the promotion, he indicated his qualification as “O” level and attached his ID card and School leaving certificate from Dr.Aggrey High School.

On the Employer’s part, the Senior HR Officer confirmed that in 2004, the employee presented an application for employment as a sailor Grade HG4. He indicated in the form that he attended Dr. Aggrey High School and attained a grade D+ in the 1996 KCSE examination. He was then appointed and continued working until 18.1.2007 when he presented an Application for Promotion Form seeking promotion to the position of Coxswain Grade HG2.In his application for promotion, he annexed the following documents to the said application:

(a) Copy of his National Identity Card.

(b) Copy of Leaving Certificate from Dr. Aggrey High School.

(c) Copy of 1996 KCSE Result Slip Mean Grade C-, among other documents.

The HR officer testified in Court that the employer, placing reliance on those documents as proof of the employee’s Academic and Professional qualification, promoted him to the position of Coxswain/Mate Grade HG2 post effective 21.11.2007 at a salary of kshs.20,570 per month.

5 years later, the Public Service Commission wrote a Circular to Ministries and State Corporations directing them to authenticate Academic and Professional Certificates of all their employees because there were employees in employment without valid certificates. As a result the Employer informed all staff to submit their Academic and Professional Certificates to their Departmental Administrators for authentication by an Ad Hoc Committee that was appointed for that purpose. After the claimant employee presented his documents the employer wrote a letter to the Kenya National Examination Council (KNEC) to verify the status of the claimant’s KCSE Result Slip and Certificate allegedly issued by KNEC.

The KNEC responded by letter dated 24.9.2015 confirming that indeed the claimant registered and sat for KCSE Examination in 1996 at Dr. Aggrey High School index but the number 101101043 in his Result slip had been altered to 101101011 and all the subject grades and the Mean Grade had been changed from D+ to C-. The KNEC further clarified that the bonafide candidate who registered and sat the exam under the index number 101101011 and got a C- was one Kazungu Zebedayo and not the claimant employee.

After the verification of the employee’s KCSE Certificate, he was served with a Show Cause letter charging him with the offence of presenting fake or forged Academic Certificate/testimonial to secure employment or Career advancement. After his response he was invited to a disciplinary hearing which gave him the right to bring along a union official or a fellow employee of his choice. The hearing was done on 25.11.2015 but the claimant chose nobody to accompany him to the hearing. Thereafter the committee recommended the dismissal of the claimant after convicting him for the offence of securing appointment and promotion on the basis of forged certificates. He was dismissed by letter dated 12.1.2016 and he never appealed against the dismissal.

Court’s Determination

The first question that the court was invited to determine was whether employee was a victim of unfair termination. The Court began by recognizing that under under Section 45(2) of the Employment Act, termination of employment by the employer is unfair, if he fails to prove that it was grounded on a valid and fair reason and that it was done after following a fair procedure. A valid reason is one which is true while a fair reasons is one which relates to the employee’s conduct and the operational requirements by the employer.

In this case, the Court first recognised that under the Scheme of Service for the position, the employee was not qualified for promotion by virtue of his D+ KCSE grade. After verification with the KNEC, the said KCSE Result Slip was found to be a forged document. That the index number was for another candidate, all the subjects grades were altered and the Mean Grade enhanced from his D+ to C-.

The Court held that “that there was a valid and fair reason to terminate the claimant’s employment contract. I am satisfied from the evidence presented by the defence that the claimant indeed presented the forged KCSE Result Slip to secure promotion to the position of Coxswain Grade HG2. That the forgery was done fraudulently to mislead the respondent while making a choice as to who among the competing candidates was more qualified for the position of Coxswain.”

On the question of procedure, the court found that “ First, the claimant was served with Show Cause letter stating the offence in respect of which the respondent contemplated punishing him. Secondly, the claimant’s response to the Show Cause letter was received and considered. Thirdly, the claimant was invited to a personal hearing and informed of his right of being accompanied to the hearing by a fellow employee or union official of his choice. Fourthly, the respondent considered his defence but dismissed him after it was found to be unsatisfactory. The claimant had a right of appeal under clause K16 but he never exercised that right. No evidence of such appeal was adduced by him showing that it was in deed received by the employer. Finally, I have noted from the dismissal letter that the claimant was guaranteed payment of his terminal dues less statutory deductions

Legal Issues Surrounding Employees’ Use of Fake Academic Certificates to secure employment.

The offence of forgery of Academic Result Slip is a Criminal offence under the Penal Code and the KNEC Act. Under Section 345 of the Penal Code, forgery is defined as “the making of a false document with intent to defraud or deceive. Such an employee can be prosecuted through the criminal justice system. When employees use fake or forged certificates to gain employment, the crime is committed or is reasonably suspected to have been committed against their employer. Under Section 44(4) (g) of the Employment Act, an employer is entitled to summarily dismiss his employee if:

“(g) an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the detriment of his employer or his employer’s property.”

So what happens to the employment contract? It is a principle of contract that an innocent party has every right to terminate a contract as soon as he discovers that he was induced by the other party to enter into the same through fraudulent misrepresentation. Therefore, the contract promoting or appointing such an employee having been entered through fraudulent misrepresentation remains voidable at the will of the employer as soon as he discovers the forgery. The key consideration is to ensure that it follows the procedure set in law.

Employers also face immense risks when they hire employees who are unqualified or who use fake or forged certificates. Vicarious Liability is a legal rule that holds an employer responsible for actions committed by their employees. This means that in the case of the surgeon who obtains employment using forged certificates and causes harm to patients, the Hospital that employs him will likely be held liable for his actions. The amount of exposure for such an employer may end up bankrupting them.

Undertaking an audit of employees’ academic qualifications is a matter that needs to be handled in a legal and proper manner as it requires navigating issues of consent, different government agencies and data protection requirements. It is advisable that this is done under guidance from your duly qualified and licensed legal counsel.

We advise clients on employment and labour issues. To consult further on this and other employment matters, send us an email on legal@jnadvocates.com