TSC seeks authority over teacher discipline 2018

The Teachers Service Commission (TSC)

has faulted the labour court for reinstating teachers the employer had sacked for having affairs with students.

The commission said it had terminated the services of teachers in various schools across the country for indecent behaviour only for the Employment and Labour Relations Court to order their reinstatement.

TSC wants the Court of Appeal to rule that the commission is not bound by criminal proceedings where a teacher charged with a sexual offence has been acquitted. According to the commission, the criminal charge of defilement against a teacher is distinct from the professional misconduct or immoral behaviour punished by the employer.

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“The judge erred in making a finding that the outcome of a criminal trial has supremacy over an employer’s internal disciplinary process,” TSC says in court papers in one of such disputes before the Appellate Court.

TSC’s objective, the standard of proof, and admissibility of evidence while handling such disciplinary proceedings against teachers is different from those applied by the court. Therefore, TSC argues that where a teacher has been acquitted by a criminal court, such a decision should not be used by the labour court to force it to take back such a worker.

“The judge erred in law by failing to appreciate that TSC has a constitutional mandate (Article 237) and also section 33 of the TSC Act, to exercise disciplinary control over teachers in its employment on account of professional misconduct,” TSC said in another matter before the Court of Appeal.

The labour court has, in the cases, directed TSC to reinstate the teachers to their former schools and pay the salaries and allowances that were not paid from the time of interdiction (sometimes years’ worth of pay and amounting to millions of shillings in arrears) to the date of resumption of duty. The court has also slapped the teachers’ employer with the costs of the case.

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However, the Court of Appeal judges have, in separate cases, granted orders suspending the labour court’s judgments, pending the hearing and determination of the appeals.

“In the instant matter, it is our view that it is arguable whether an employer is bound by the findings of a criminal trial in the disciplinary process of its employee. We also note the teacher did not contest that he was unlikely to refund the salary arrears should the intended appeal succeed,” said Appellate Judges GBM Kariuki, Fatuma Sichale and Sankale ole Kantai in a December 20, 2017 case.

A similar order was granted by Appellate Judges Daniel Musinga, Fatuma Sichale and Sankale ole Kantai on March 21, 2018 where they observed that: “It is arguable as to whether the standard of proof in a criminal charge can be applied to disciplinary proceedings of the TSC. Does the acquittal of a criminal charge absolve a teacher from being found to have conducted himself in an unprofessional manner?” 

According to the labour court, an employer has no mandate to try criminal cases and where the reason for termination or dismissal is solely that the employee committed an offence, the opinion of the court is that the employer must await the determination of the alleged criminal liability.

 

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