Teachers have won a significant legal victory after a judge overturned decisions issued by disciplinary panels that were not chaired by a member of the Teachers Service Commission (TSC).
According to Judge Byram Ongaya, a disciplinary panel must include at least one commissioner, who would also preside over the session.
In a decision that is likely to have implications for numerous previous disciplinary cases conducted by TSC county directors or other management officials, Justice Ongaya held that the authority of TSC members cannot be transferred.
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In a resolution reached at a meeting on May 14, 2020, the TSC resolved that all types of disciplinary proceedings, excluding reviews, be heard by management.
But ruling on an employment dispute pitting the TSC against one of its staff in the secretariat, Justice Ongaya said the TSC Human Resource Manual provides that the disciplinary panel must be chaired by a commissioner.
“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,” Justice Ongaya ruled.
He ruled that a disciplinary panel that does not include a member of the Commission was unlawfully formed, and its decisions are null and void.
Rose Mwende Mutisya, a TSC secretariat officer, filed the petition through lawyer Njeri Ngunjiri in August 2022 after being fired for irregular teacher promotion.
According to the court, an internal audit assessment revealed that 22 teachers on the payroll were illegally promoted.
The aforementioned teachers were promoted despite having no documentation of permission in their files.
It was claimed that employees took advantage of the large number of teachers approved for promotion to introduce more promotions into the payroll system in an irregular manner.
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.
Ms Mutisya was one of them. She was interdicted on December 16, 2021.
The disciplinary panel constituted to hear the case was chaired by Mr Kenneth Marangu, an employee of TSC.
It had four other members and none was a commissioner.
The cases in issue were heard between May 17 and 20, 2022 at the TSC head office.
The panel found guilty Ms Mutisya of the alleged offences and recommended her dismissal from work and recovery of a sum of Sh410,183 overpayment as per the payroll.
Her lawyer sued stating that the panel was constituted improperly as it violated clause 119(2) of the TSC HR Manual. In court, the TSC confirmed that Mr Marangu was not a member of the Commission.
The court also found that Ms Mutisya was discriminated against because she was dismissed while other officers culpable in similar circumstances were either suspended or warned.
“It was discriminatory for the respondent to dismiss the claimant and retain in service the similarly or more culpable officers. The dismissal is found to have been excessive and is amenable to being set aside,” Justice Ongaya said.
The court further found that Ms Mutisya admitted to an error within operational deficiencies.
She had explained that the errors were caused by the reasons of work pressure to clear pending files that piled up during the Covi-19 pandemic relating to the promotion of common cadre cases.
She added that the error was caused by numerous interruptions from fellow staff, limited availability of machines and the conversion of interns to permanent staff.
The court found that the error based on a well-founded complaint or grievance deserved proper resolution by TSC instead of relying on it to dismiss the employee. The court ordered her reinstatement.
