Lifeline for TSC in staff dismissal court case
The Court of Appeal has granted a lifeline to the Teachers Service Commission (TSC) by setting aside the execution of a ruling that required the organization to reinstate an employee who had been fired after a disciplinary process.
Under the Court judgment made by Justice Byrum Ongaya on March 10, 2023, the Employment and Labour Relations Court (ELRC), the Commission had also been ordered to pay salary arrears to the staff for the period of dismissal.
However, a three-judge bench of the Appeal Court has granted stay orders to the execution of the ELRC ruling pending the hearing and determination of an appeal lodged by the TSC to challenge the matter.
This means that TSC is neither bound to retain the staff on its employment nor pay the special damages as decreed by the ELRC Court until the appeal by the TSC is heard and determined.
“We are satisfied that this is a deserving case for an order of stay of execution. We accordingly, allow the notice of motion dated March 14, 2023, and stay execution of the judgment of the ELRC dated March 10, 2023, until the hearing and determination of Civil Appeal No. E288 of 2023…It is so ordered,” ordered Justices Mohamed Warsame, Justice Kathurima M’Inoti, and Justice G. W. Ngenye-Macharia in their July 28 ruling.
The TSC and one of its senior officers, Kenneth Marangu had rushed to the Appeal Court to challenge the ELRC ruling in which Ms Rose Mwende Mutisya had secured a favourable judgement reinstating her despite having been dismissed by the Commission after disciplinary proceedings.
TSC had argued that the ELRC had erred in the judgment in demanding that the former Senior Human Resource Officer at the TSC headquarters be reinstated and deployed within 30 days after the ruling.
Justice Ongaya in his ruling had agreed with Mwende that TSC Human Resource Policies and Procedures Manual for Secretariat Staff which required disciplinary meetings and was heavily relied on during her disciplinary hearing was not legally binding.
Mwende had also argued that Kenneth Marangu was not qualified by virtue of his position to determine her fate as the said manual stated that such disciplinary sessions have to be chaired by the Chairman of the Commission.
But in rebutting the arguments, TSC said ELRC erred by misinterpreting the legal nature of the manual stating that the document was an internal administrative tool used to enforce disciplinary procedures and processes.
The Commission further argued that the court ruling presupposed the state agency was not in order in delegating the disciplinary function to its secretariat staff and questioned how the Commission was to reinstate a staff with whom their relationship had irretrievably broken down.
On this basis, the appellant judges were satisfied that the case was arguable and that the grounds like whether the delegation of powers by TSC to Mr. Marangu was valid, whether the TSC manual is a Statutory Instrument requiring to be tabled before Parliament before it was amended; whether differential treatment of employees constituted unlawful discrimination, and whether in the circumstances of the case reinstatement and award of special damages were merited.
Justice Ongaya had earlier ruled that the disciplinary panel was not properly constituted and that although TSC had passed a resolution that all categories of secretariat staff discipline cases, except for reviews, would be heard by the management, that resolution was invalid. He, therefore, issued declarations against TSC and Mr. Marangu, quashing disciplinary proceedings undertaken by them against Ms. Mutisya
By Our reporter
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