Breach Of Trust By An Employee, For Failing To Disclose Vital Information

By Deborah Iniye Warrie Esq.

FICTIONAL STORY

On the 17th  of August 2020, Annabel applied for a job as a personal assistant, at Climax Global studios. During her interview she was given a form to fill wherein, she was asked if she had any criminal record, any health issues, or allergies and she ticked NO.

Six months after she was employed, there was an outbreak of conjunctivitis in the organization, which led to a medical evaluation of the staff, and it was discovered that the spread emanated from Annabel who had a chronic medical condition of conjunctivitis.

While all these were going on, the Organization was robbed of the sum of Fifteen Million Naira. A criminal investigation was launched and it was revealed that the gang leader is a friend of Annabel, who was a former member of the gang until she was arrested, sent to prison, and served her term. The board of Directors of Climax Global Studios on the grounds of these events terminated Annabel’s employment.

How is Annabel’s scenario treated or viewed in other Jurisdictions, outside Nigeria?

Was there any legal duty binding on Annabel to disclose her past to her employer?

Was Climax Global Studio right in terminating her employment?

Does the Nigerian legislation fully encapsulate the above scenario in its laws and statutes?

All these and more will be critically addressed in this article.

First Issue to resolve

What is the offense Annabel committed in law, it is called the offense of perjury.

According to Wikipedia, Perjury is the intentional act of swearing a false oath or falsifying an affirmation, to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

Like most other crimes in the common law system, to be convicted of perjury one must have had the intention (mens rea) to commit the act and to have actually committed the act (actus reus).  Statements that entail an interpretation of fact are not perjury because people often draw inaccurate conclusions unwittingly or make honest mistakes without the intent to deceive. Individuals may have honest but mistaken beliefs about certain facts or their recollection may be inaccurate or may have a different perception of what is the accurate way to state the truth.

How is Annabel’s scenario treated or viewed in other Jurisdictions, outside Nigeria?

In some jurisdictions, no crime has occurred when a false statement is (intentionally or unintentionally) made while under oath or subject to penalty. Instead, criminal culpability attaches only at the instant the declarant falsely asserts the truth of statements (made or to be made) that are material to the outcome of the proceeding.

• In Canada, those who commit perjury are guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. Perjury is a statutory offence in England and Wales. A person convicted of perjury is liable to imprisonment for a term not exceeding seven years, or to a fine, or to both.
• In the United States, the general perjury statute under federal law classifies perjury as a felony and provides for a prison sentence of up to five years. The California Penal Code allows for perjury to be a capital offense in cases causing wrongful execution. Perjury which caused the wrongful execution of another or in the pursuit of causing the wrongful execution of another is respectively construed as murder or attempted murder and is normally itself punishable by execution in countries that retain the death penalty.
• Perjury is considered a felony in most U.S. states as well as most Australian states.
• In Queensland, under Section 124 of the Queensland Criminal Code Act 1899, perjury is punishable by up to life in prison if it is committed to procure an innocent person for a crime that is punishable by life in prison. However, prosecutions for perjury are rare.
• In some countries such as France and Italy, suspects cannot be heard under oath or affirmation and thus, cannot commit perjury regardless of what they say during their trial.
• In the United States, Kenya, Scotland, and several other English-speaking Commonwealth nations, subornation of perjury, which is attempting to induce another person to commit perjury, is itself a crime.

The rules for perjury also apply when a person has made a statement under penalty of perjury even if the person has not been sworn or affirmed as a witness before an appropriate official. An example is the US income tax return, which, by law, must be signed as true and correct under penalty of perjury (see 26 U.S.C. § 6065). The federal tax law provides criminal penalties of up to three years in prison for violation of the tax return perjury statute. See 26 U.S.C. § 7206(1).

Classification of perjury under Nigerian law

Nigerian penal legislation classifies offences affecting evidence. The offence of perjury is restricted as it was under common law in the case of forensic false evidence. This offence is committed by a witness, lawfully ‘sworn’ in judicial proceedings, who makes a material statement, which he knows to be false, or without belief in its truth. The word ‘oath’ according to Turner is not limited to religious oaths but includes the taking of legal affirmation or declaration. Oath as a synonym of sworn is defined by section 36 of the Penal Code thus:

‘The word ‘oath’ includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a Public Servant or to be used for the purpose of proof, whether in a Court of Justice or not.’

Statutory Definition of “perjury”

“Perjury is defined in Section 117 of the Criminal Code as follows:- “117. Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending on that proceeding, or intended to be raised in that proceeding, is guilty of an offence, which is called perjury.” OMOREGIE v. DPP (1962) LPELR-40916(SC) Per ADETOKUNBO ADEGBOYEGA ADEMOLA, JSC (Pp 3 – 3 Paras B – D) . see also  A-G EKITI STATE v. C.O.P EKITI STATE (2018) LPELR-44421(CA) Per PAUL OBI ELECHI, JCA (Pp 22 – 23 Paras F – A).

Was there any legal duty binding on Annabel to disclose her past to her employer?  YES

Although some people may be tempted to embellish their resumes to make themselves more appealing to potential employers, doing so can come at significant risk. Lying on an application or resume opens the applicant up to several serious consequences.

Types of Lies

There are many lies that people may tell on their applications or resumes. They can range from slight and ridiculous to extreme.

• Dates may be misconstrued so that no apparent gaps in employment emerge.
• Achievements at work may be embellished.
• Certain skills may be overinflated as related to the individual’s actual ability.
• Some applicants have even claimed college degrees or work experience that they did not possess.

In a legal analysis, the question is whether the lie was “substantial enough” and had the potential to influence an employment decision.

Was Climax Global Studio right in terminating her employment? YES

On many applications, there is a disclaimer that the foregoing information is necessary to assess a person’s qualifications for the job. It goes on to state that if the applicant lies about the information on the application or attached documents that such lies are grounds for termination. Even if the application itself does not have this disclaimer, many employers may still assert their rights to terminate the now-employee for such lies or omissions.

It is also known as criminal breach of trust, the implied term of trust and confidence (“ITTC” for ease) comes up frequently in employment cases, primarily in the context of an employee alleging that they have been or are being constructively dismissed but also in the context of an employer seeking to use it as a reason to expressly dismiss an employee. In McFarlane v Relate Avon Limited [2010] ICR 507 it was stated that:

 “In almost any case where an employee has acted in such a way that the employer is entitled to dismiss him, the employer will have lost trust and confidence in the employee”

In Employment Case 4354-12-13 A, Kramer David Ltd v Glitznikov (August 9 2016), the court’s words

“In this case, the employee did not stop at preparatory steps prior to leaving, but rather he took actual, not insignificant, steps in the business he opened. The employee acted in this way without notifying the Company and without telling the Company of the change in his “map of interests” and that he is no longer solely committed to his employment with the Company but also (and perhaps mainly) to his other activity. The employee’s conduct ridiculed the Company and its owners and exposed them to concerns of industrial espionage, uncertainty, and suspicion vis-à-vis its employees, clients, and providers… In the proper course of an employment relationship, the employer should not be afraid of its employees and of their potential damaging its business, the way the Company was exposed in this case. The breach by the employee of the special relationship between employer and employee entitles the employer to compensation.”

In ISHENO v. JULIUS BERGER (NIG) PLC (2008) LPELR-1544(SC) it was stated thus

“Where the employer fires an employee in compliance with the terms and conditions of their contract of employment, there is nothing the Court can do as such termination is valid in the eyes of the law. ” Per WALTER SAMUEL NKANU ONNOGHEN, JSC (Pp 35 – 36 Paras E – A)

CONSEQUENCES OF LYING ON AN APPLICATION AS AN EMPLOYEE

Loss of Legal Claims

Another potential drawback to lying on an application is that a person can lose his or her right to sue the employer if there are any legal claims against the employer, such as termination based on racial discrimination. Another possibility is that the employee’s level of damages can be reduced. This legal concept is known as the “after-acquired evidence” rule. This means that employers can use the evidence that they learned about a former employee in defense of any legal claim. The employer’s position is that it would not have hired the applicant in the first place if he or she had been honest on the application. This often requires the employer to prove that the lies on the application were directly linked to the employment position and would have been sufficient for it not to have hired the applicant.

Loss of Professional License

Many professions have a board that oversees the administration of licenses to current individuals in the profession, including lawyers, nurses, and doctors. If they commit an ethical mistake, their license may be suspended or revoked.

Criminal Charges

The likelihood of someone being charged with a crime for lying on a job application is slim. However, there are certain circumstances that could lead to criminal responsibility. For example, lying about military service to receive a benefit can be prosecuted If employment is being sought from a state or federal employer, it is likely a crime to lie on an application because it is often a crime to lie to a federal or state government agencies. Another possibility is that the applicant can be charged with a criminal fraud offense. Many white lies will not rise to the level of fraud. However, such charges may result if the effect of the lie led to substantial damage to a person or the financial welfare of a business.

Civil Liability

Lying on an application may also potentially cause an applicant to be liable for civil damages if his or her lies result in damages. For example, an architect who lied about his credentials may be civilly liable for civil fraud or misrepresentation if a ceiling collapsed and injured a customer. A contractor may be sued if he was terminated after his client discovered that he had violated building codes in the past and did not reveal this information when asked and the client had to hire someone else to perform the work at a higher cost. Plaintiffs may sue the employer for negligent hiring or retention if they have suffered injuries because of the misrepresentation. The employer may respond by joining the employee in the lawsuit so that he or she can share in the liability.

PERJURY ALSO APPLIES IN MARRIAGE

For example, Section 12 of the Matrimonial Causes Act 1973 as amended by the Gender Recognition Act 2004 requires transgender people to disclose their ‘gender history’ to the other party prior to the marriage ceremony. Failure to do so enables the other party to exit the relationship through nullity proceedings. In Nigeria, such a marriage is void see Section 3 of the MATRIMONIAL CAUSES ACT 1970,  which specifically states thus:

“Void marriages and prohibited degrees of consanguinity 

(1) Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where‐  

(d) the consent of either of the parties is not a real consent because

(i)it was obtained by duress or fraud; or 

(ii)that party is mistaken as to the identity of the other party, or as to the nature of the ceremony performed; 

CONCLUSION FOR LITIGANTS

We tell lies when we are afraid… afraid of what we don’t know, afraid of what others will think, afraid of what will be found out about us. But every time we tell a lie, the thing that we fear grows stronger. Tad Williams,

Lying (perjury)disrupts the judicial process and is taken very seriously. Being convicted of perjury can result in serious consequences, including probation and fines. Additionally, perjury can have consequences on a person’s professional pedigree. So it’s better to say the truth because honesty is the cornerstone of all success, without which confidence and ability to perform shall cease to exist. Mary Kay Ash

CONCLUSION FOR LEGAL PRACTITIONERS

Does the Nigerian legislation fully encapsulate Annabel’s scenario in its laws and statutes?

Perjury is a vague offense that can be classified into different categories, depending on the nature of the offence/offender/circumstances surrounding the case. In the course of writing this article, I observed that the Nigerian Legislation definition of perjury, focuses strictly on false evidence given by a witness in Court. Unlike other international jurisdictions, where the offense of perjury, though vague, has already been classified as it relates to events surrounding each case.

Hence, it is essential for us to amend our criminal laws, and redefine the concept of the offense of perjury, beyond the false evidence given by a witness in Court, stipulated in Section 347 (1) (2) & 350 (1) (a) the Administration of Criminal Justice Act, 2015 and Section 118 & Section 120 (1) & Criminal Code.

Again, I am of the opinion that there is a dire need for a total reformation of some of our statutes. Especially the ones created in the 1800,1960’s,& 1900s, etc as most of these laws are archaic and do not align with the consistent evolution of today’s world.

REFERENCE LIST

1. https://www.hg.org/legal-articles/what-are-the-consequences-to-lying-or-omitting-information-on-a-job-application-36307.
2. https://www.hg.org/legal-articles/what-can-i-do-if-someone-is-lying-to-the-court-36990.
3. https://en.wikipedia.org/wiki/Perjury#Nigeria https://en.wikipedia.org/wiki/Main_Page 
4. https://en.wikipedia.org/wiki/Perjury#Nigeria https://en.wikipedia.org/wiki/Main_Page
5. https://en.wikipedia.org/wiki/Perjury_in_Nigeria#Assignment_of_perjury
6. https://www.hrmonline.com.au/section/legal/trust-breached/
7. https://www.mondaq.com/employment-litigation-tribunals/585426/employer-awarded-damages-for-employee-breach-of-trust-and-bad-faith
8. https://www.farrer.co.uk/news-and-insights/blogs/the-implied-term-of-trust-and-confidence-the-key-things-you-need-to-know/
9. https://primsol.lawpavilion.com.
10. Transgender Marriage and the Legal Obligation to Disclose Gender History. Alex Sharpe,
11. https://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.2011.00887.x

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