Teachers win in punishment meted without TSC top brass
Friday March 17 2023
Teachers have secured a major win in court after a judge nullified decisions made by disciplinary panels that were not chaired by a member of the Teachers Service Commission (TSC).
Justice Byram Ongaya ruled that a disciplinary panel must comprise at least one commissioner who also chairs the session.
In a judgement that is likely to affect multiple 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.
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The TSC, in a resolution passed at a meeting held on May 14, 2020, had resolved that hearing of all categories of discipline cases except for reviews be heard by the 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.
Rose Mwende Mutisya, a TSC secretariat officer, filed the petition in August 2022 after being sacked over the irregular promotion of teachers.
“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,” said justice Ongaya.
In the petition, the court heard that an internal audit report disclosed the irregular promotion of 22 teachers in the payroll without any documentary evidence of approval in their personal files.
It was considered that staff took advantage of the high number of teachers approved for promotion to irregularly introduce additional promotions into the payroll system.
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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.