By Obioma Ezenwobodo
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Introduction:
Pre-employment irregularity refers to discrepancies or errors that existed or were identified during pre-employment screening or the employment process that could nullify or mar an employment opportunity. These irregularities could refer to false records, background checks, qualifications, credentials, credit issues, or criminal records of an applicant. In another angle, it could be due to non-adherence or observance of ethical standards, government regulations, legal provisions, or administrative procedures. The cause of pre-employment irregularities could be an employee who, during employment screening, submitted false/erroneous records, failed to submit necessary records during the employment screening exercise, or applied for an unadvertised position. It could also be from a private employer that failed to adhere to administrative requirements or failed to disclose relevant job qualifications. Also, it could emanate from a public agency that failed to adhere to constitutional/statutory requirements or comply with administrative standard procedures.
The issue of pre-employment irregularities is a potent source of labour conflicts that results in huge economic loss and entangling litigation costs. Employers and Employees would benefit immensely by being accustomed to contemporary labour issues that manifest as pre-employment irregularities and understanding ways to avoid resultant pitfalls.
Instances of Pre-Employment Irregularities as Decided by the Courts:
The Courts have had the opportunity of delving into matters of pre-employment irregularities and either regularise, invalidate, or sustain them. Therein lies the great takeaway that Employers and Employees should appreciate for a cordial labour relationship. Some of the legal scenarios of pre-employment irregularities and their legal lessons they present are considered below:
False Educational Credentials –
Due to a high unemployment rate and desperation to earn a living, some prospective employees may tend to misrepresent or falsify educational credentials and qualifying certificates to secure scarce employment. Where an employee misrepresents the fact of his qualification to secure employment, he would not have any remedy on account of termination of the employment. In the case of Saifullah Muhammad Aliyu v. Nigerian Ports Authority, unreported Suit No. NICN/ABJ/ 20/2023, the claimant was offered an appointment based on his misrepresentation that he had the National Youth Service Corps (NYSC) certificate, and his appointment was terminated for failure to produce the certificate as and when due. He sued against the termination of his appointment, and the Court held that the defendant properly exercised its right to terminate the claimantâs appointment within the probationary period.
Failure to Advertise –
Where the rule stipulates that advertisement of an employment opportunity before employment is done, failure to adhere to this rule would render any subsequent employment null and void. In the same vein, to secure such an employment when an advertisement has not been conducted as required by the rule, the court would hold the employment to be irregular and nullify it on that basis. In the case Nnaekwe Uchenna Kingsley v. Enugu State College of Education (Technical), Enugu, unreported Suit No. NICN/EN/40/2018, the claimant was irregularly appointed and later disengaged along with other workers because no advert for the appointment exercise was issued, though mandatorily required by the Staff Handbook. Upon discovery of the irregularity, the claimantâs appointment was terminated after arrears of his salary were paid. He and others later sued to enforce the employment on the argument that they complied with all conditions precedent to be employed by the Defendant. The Court found the claim to be false as the contract was vitiated by deceit and therefore illegal and unenforceable.
Employment Scams/Racketeering –
The issue of employment scams or job racketeering against desperate job seekers, especially on government job opportunities, is rampant and has become a concerning issue in the country. This fraud is perpetuated by unscrupulous elements within and outside the public service that defraud victims of their scarce resources on the pretense of securing for them non-existent public service jobs. Most times, the fraudsters succeed in presenting employment letters to the inspecting victims and even enroll their names in the public payroll system, thereby causing pre-employment irregularities. In the case of Innocent Awake Ajegba v. National Council for Arts and Culture & 2 Ors, unreported Suit No. NICN/ABJ/207/2017, the complaintâs name was removed from the Public Service payroll after being employed because his employment did not comply with the Public Service Rules (PSR), and the employment was ab initio illegal and without authorization. The Court found that the employment was not authorized and that the claimant failed to prove that he is a bona fide employee.
Payment for the job done must be paid, and due process followed to terminate employment tainted with pre-employment irregularity –
Where an employee has worked for days before the pre-employment irregularity inherent in his recruitment exercise is discovered, and thus liable to have his employment terminated, the employer must pay for the time the employee has spent in the employment and disengage the employee following established rules. This is due to the reason that the employer ought to have been more diligent in completing an employment exercise before granting employment to an employee. In Mr Sale Saheed Lekan v. Dangote Cement Plc, unreported Suit No. NICN/LA/551/2019, the claimant already working for the defendant, had his employment letter withdrawn for attending only 2 out of the 3 days of pre-employment training. The Court found that there is no provision of the defendantâs Laws and Policies that provides for the withdrawal of employment after it has been duly commenced. The Court held the contract of employment between the parties to be subsisting and the actions of the defendant in refusing to provide work for the claimant as unlawful and against public policy.  Where an employee has worked for days before it is discovered that he did not complete his requisite training/screening exercise, and thus the need to terminate his employment arises, the employer must pay the employee for the time they allowed him to be in their employment.
The requisite advertisement must be done for the right job –
An employer must also ascertain the availability of job positions/openings he has before advertising for the same, as acceptance of the job offer by an employee may be legally binding on the employer. In Foundation Onu v. Ignatius Ajuru University of Education & Anor, unreported Suit No. NICN/PHC/44/2023, the claimant was employed and given a letter of offer of employment, but the position was later declared redundant, and hence the withdrawal of the said offer of employment letter. The defendant argued that the employee had yet to resume duty before the withdrawal. The Court found that the defendants could not have declared the claimantâs position redundant if the claimant was not their employee, since redundancy applies only to those in employment. The Court held that there was a valid contract of employment between the parties.
Frustration of employment due to non-observance of the Federal Character Principles –
An employment contract becomes frustrated when it cannot be performed due to a supervening event that is not the fault of any of the parties. This frustration could emerge in different ways, but the most rampant in public service employment exercises is that of government agencies or heads of the agencies cancelling employments or employment exercises procured or started by their predecessors due to pre-employment irregularities manifested during the employment exercise. Where the basis of the cancellation is hinged on non-observance of the Federal Character Principle, the attitude of the court is often to hold such as a frustration of the contract of employment as the observance of the Federal Character Principle is mandatory by the supremacy and binding effects of the provisions of the Constitution. In Foundation For Peace Professionals & Ors v. The National Teachers Institute Council & Anor, unreported Suit No. NICN/ABJ/292/2017, the claimants, who succeeded in the employment exercise conducted by the defendant, were offered an appointment, which they accepted. It was during biometric data capturing and after 25 of the employees had been captured that the integrated payroll and personal information system officials unceremoniously halted the process. The claimants were not officially informed of the halting of the biometric capturing, but they unofficially gathered that the stoppage of the biometric data process was influenced by the new Director General of the 1st defendant. The claimants were not given letters of withdrawal, nor were they told why they cannot actualize their employment by resuming duties with the 1st defendant. The claimant sued to retain their employment on one of the grounds that the Federal Character Commission had granted a waiver for their employment. The defendantâs defence is based on the non-observance of the Federal Character Principle. The Court held that the Federal Character Commission Act has no provision empowering or mandating the Commission to grant a waiver. The Commissionâs role in recruitment is to monitor, supervise, and guide the recruitment exercise to ensure compliance with the Federal Character principle. Section 14(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) imposed a duty on employers of labour as well as the Federal Character Commission in respect of compliance with the Federal Character principle, and it is illegal to waive a duty imposed by the Constitution and the statute.
The Employer would be liable where he fails to prove that the irregularity is the fault of the Employee –
It behooves the employer/respondent to prove that failure to adhere to the employment procedures or set out guidelines is the fault of the employee and not him. In other words, there has to be some sort of knowledge of the irregularity or fault on the part of the employee for the employer to escape responsibility. In the case of Wulkwap Hooman Danjuma and 181 Ors v. The Governor of Plateau State and 2 Ors, unreported Suit No. NICN/JOS/09/2024, despite the respondent arguing that the applicantsâ employments were not advertised and that the employments were marred by irregularities. The Court found for the applicants as the respondents failed to prove that the cause of the purported failure is that of the applicants and not the respondents.
Also, in Afi Nelson Ogba v. Nigeria Maritime Administration and Safety Agency unreported Suit No. NICN/LA/519/2016, the defendant issued a letter of provisional appointment dated 15 June 2015 to the claimant, which the claimant accepted. She assumed duty and was deployed to the Shipping Development Department but by a letter dated 14 September 2015, the defendant nullified the offer of provisional appointment on the basis that the claimantâs purported provisional appointment did not comply with administrative conditions and thereby fraught with irregularities which include: no advertisement for recruitment; no application letter pursuant to that advertisement; no invitation to attend an interview; no screening by an interview panel; and no approval of the appointment by the Director-General. The defendant failed to advance evidence of complicity on the part of the claimant on the alleged irregularities. The Court found for the claimant, declaring the letter of nullification to be null and void, as the conditions of employment do not have any provision for such
CONCLUSION
Employers must ensure that all necessary caution is taken when advertising, screening, and employing applicants, and note the legal implications of every action taken to avoid industrial conflicts and unnecessary litigation. This could be in the form of ensuring that there is a job to be filled, advertisement is accurately done on same, and that applicants meet the required qualifications/training before being employed. This would enhance the organizationâs image, trustworthy staff, and boost productivity/services. On the other hand, Employees must have knowledge of the nuances of labour law relating to their jobs, avoid being exploited or frustrated by seeking out unfair labour practices emanating due to pre-employment irregularity, avoid assuming responsibility for such irregularities that occurred through no fault of theirs, and seek legal counsel when necessary.
Obioma Ezenwobodo LL.M
Partner, Resolution Attorneys, Pioneer Chairman, Nigerian Bar Association, Garki Branch, Abuja (2022/24)obiomadan@gamil.com
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