Suspended Teachers By TSC Win On Disciplinary Panels

Teachers have secured a major victory in court after a judge nullified decisions made by disciplinary panels that are not chaired by a member of the Teachers Service Commission (TSC).

On Thursday, March 16, Principal Judge of the Employment and Labour Relations Court (ELRC), Justice Byram Ongaya, declared that disciplinary cases, should, by law, have one TSC commissioner acting as the chairperson.

According to a judgment that is likely to affect innumerable past disciplinary cases conducted by county directors of the TSC or other officials in the management, Justice Ongaya stated that the authority of the TSC members cannot be delegated.

The judge and the authority of TSC commissioners could not be delegated, as witnessed in past disciplinary cases. Any decision the disciplinary panel makes without a commission member will henceforth be treated as inconsequential.

“Thus (the TSC HR Manual) being an instrument made under the statutory provisions, the court finds that indeed its provisions could not be changed internally by the TSC without involving the Parliament as envisaged in the Statutory Instruments Act, 2013 –and which has not been shown to have been done,” the judge ruled.

He held that a disciplinary panel without a member of the Commission is improperly constituted and its decisions are null and void.

The judge issued the ruling in a petition filed in August 2022 by the Teachers Service Commission (TSC) secretariat officer Rose Mwende Mutisya against her employer.

Mwende lamented that on December 16, 2021, she was among five employees laid off and punished by the TSC after an internal audit by the commission

The said teachers were promoted without any documentary evidence of approval in their files. It was alleged that staff took advantage of the high number of teachers approved for promotion to irregularly introduce additional promotions into the payroll system.

TSC constituted an investigation committee whose report recommended five employees who had previously been warned or cautioned on account of erroneous salary adjustments and subsequent overpayment be subjected to disciplinary action.

Through lawyer Njeri Ngunjiri, Mwende sued TSC stating that the panel was illegal as it went against clause 119(2) of the TSC Human Resource (HR) Manual

Justice Ongaya found that Mwende was discriminated against and dismissed unfairly. He noted that other employees in similar circumstances were either suspended or warned. The dismissal was found to be excessive, and the court ordered her reinstatement.

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