After a court decision on Thursday, March 16, regarding the substance of the disciplinary charges, teachers who had been suspended by the Teachers Service Commission (TSC) were given a respite from their suspensions.
Justice Byram Ongaya, the Principal Judge of the Employment and Labour Relations Court (ELRC), declared that the disciplinary cases should have one TSC commissioner acting as the chairperson, as mandated by law.
According to the judge, past disciplinary cases had witnessed the delegation of authority from TSC commissioners, which was not permissible.
Henceforth, any decision made by the disciplinary panel without a commission member will be considered inconsequential.
The judge ruled, “Thus, the TSC HR Manual, being an instrument made under the statutory provisions, could not be changed internally by the TSC without involving the Parliament as envisaged in the Statutory Instruments Act, 2013, which has not been shown to have been done.”
This landmark ruling opens the way for the review of all TSC disciplinary rulings, as some teachers had accused their employers of unfair hearings.
In August 2022, the judge issued the ruling in a petition filed by Rose Mwende Mutisya, a secretariat officer at the Teachers Service Commission (TSC), against her employer.
Mwende lamented that on December 16, 2021, she and four other employees were laid off and punished by the TSC following an internal audit by the commission.
At that time, the TSC was investigating the irregular promotion of 22 teachers. The internal audit confirmed that some staff members took advantage of the promotions to add unqualified names.
Mwende was found guilty of irregular salary adjustments and was dismissed from work, in addition to being fined Ksh 410,183 for her role in the payroll overpayment.
Through her lawyer Njeri Ngunjiri, Mwende sued the TSC, stating that the panel was illegal as it violated clause 119(2) of the TSC Human Resource (HR) Manual.
Justice Ongaya found that Mwende had been unfairly discriminated against and dismissed. He noted that other employees in similar circumstances were either suspended or warned.
The court deemed the dismissal excessive and ordered her reinstatement.
On May 14, 2020, the TSC passed a resolution stating that disciplinary cases should be handled by the management. Only review cases could be held by someone who is not in management.
However, teachers unions, the Kenya Union of Post-Primary Education Teachers (KUPPET) and the Kenya National Union of Teachers (KNUT), advocate for an independent body to handle teachers’ disciplinary cases.
“Teachers are on their own when they are being disciplined and even dismissed,” Collins Oyuu, the Secretary General of KNUT, stated while addressing the National Assembly’s Education Committee on Tuesday, February 21.