TSC Updates 2023; Big Win For Teachers On Disciplinary Panel
TSC Updates 2023; Big Win For Teachers On Disciplinary Panel. Judge invalidated disciplinary panel rulings that were not presided over by a member of the Teachers Service Commission, giving teachers a substantial legal victory (TSC).
A disciplinary panel must have at least one commissioner, who would also act as the meeting’s chair, in accordance with Judge Byram Ongaya.
In a ruling that is likely to have consequences for countless earlier disciplinary cases conducted by TSC county directors or other management authorities, Justice Ongaya held that the authority of TSC members cannot be transferred.
The TSC decided to have management hear all disciplinary cases, barring reviews, in a decision made at a meeting on May 14, 2020.
Yet, in his decision on a labor dispute involving a member of the TSC’s secretariat staff, Justice Ongaya noted that the TSC Human Resource Manual mandates that the disciplinary panel be presided over by a commissioner.
Accordingly, “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 said. “Thus (the TSC HR Manual) being an instrument made under the statutory provisions,” he added.
He determined that it was illegal to constitute a disciplinary panel without a member of the Commission, and as a result, its decisions are void.
After being let go for questionable teacher promotion, Rose Mwende Mutisya, a TSC secretariat official, filed the petition in August 2022 through attorney Njeri Ngunjiri.
An internal audit evaluation, according to the court, found that 22 teachers who were on the payroll had received improper promotions.
Despite the fact that there was no proof of approval in their files, the aforementioned teachers received promotions.
It was alleged that staff members irregularly added extra promotions to the payroll system by taking advantage of the vast number of teachers approved for promotion.
Five workers who had previously received a warning or a caution due to incorrect salary adjustments and a subsequent overpayment were recommended to face disciplinary action by the inquiry committee TSC established.
One of them was Ms. Mutisya. Her arrest took place on December 16, 2021.
Mr. Kenneth Marangu, a TSC employee, served as the chairman of the discipline panel assembled to hear the matter.
None of the other four members of the group was a commissioner.
The cases in issue were heard between May 17 and 20, 2022 at the TSC head office.
The tribunal recommended dismissal from her job and the recovery of a sum totaling Sh410,183 in overpayment as per the payroll after finding Ms. Mutisya guilty of the claimed offenses.
Her attorney filed a lawsuit, claiming that the panel’s composition was illegal since it broke Article 119(2) of the TSC HR Manual. The TSC acknowledged in court that Mr. Marangu was not a Commission member.
The court also determined that Ms. Mutisya was the victim of discrimination because she was fired while other policemen responsible for the same offenses received warnings or suspensions.
“It was discriminatory for the respondent to terminate the claimant and continue in service the similarly or more responsible officers. The dismissal was seen to be disproportionate and could be overturned, according to Judge Ongaya.
The court also discovered that Ms. Mutisya had admitted to a mistake within operational shortcomings.
She had cited the pressure at work to finish off open files related to the advancement of common cadre cases that had accumulated during the Covi-19 outbreak as the basis for the blunders.
She continued by saying that the mistake was brought on by multiple staff members interrupting, a lack of machine availability, and the hiring of interns as full-time employees.
The court determined that TSC should have addressed the problem based on a legitimate complaint or grievance before using it as justification to fire the employee. She must be reinstated, the court ruled.