Tale of a certificate, two teachers and TSC

By Wahome Thuku

Nairobi, Kenya: In 1986, Teachers Service Commission (TSC) employed two teachers, Mr Walter Ondhowe and Mr Walter Ogal Anuro.

Mr Ogal, who was the second to be hired, was employed as untrained technical teacher on May 13, 1986. He rose through the ranks to the position of technical instructor.

Some 23 years later on August 28, 2009, TSC received a letter from a member of the public informing it that both Ogal and Ondhowe had used the same KCE certificate number 0171760 to get employment.

On October 12, 2009, the TSC wrote to Ogal summoning him to their headquarters in Nairobi. He was to appear before the commission with all his original academic certificates on October 27, 2009.

At the TSC head office, Ogal was questioned on whether he had lost any of his original certificates and he responded in the negative. He was then asked to leave the original certificates with two employees and wait for communication later.

TSC then summoned Ondhowe for a similar questioning. It emerged that indeed both teachers had used Ogal’s certificate to get jobs. Ondhowe recorded a statement in which he claimed he was a cousin to Ogal, who had voluntarily given him the certificate to secure the job. He said he had returned the certificates to Ogal after getting employment.

In July 2010, Ogal was again summoned to TSC headquarters. He was informed that a man by the name Walter Ondhowe alias Samwel Bradox, who claimed to be his cousin, had secured employment with TSC using his KCE certificates. Ogal denied any knowledge of the allegations saying he did not know anyone by that name. He was again asked to go and wait for communication.

Ondhowe, who turned out to be an impostor was later arrested, charged and convicted. In September 2010, Ogal was interdicted by TSC. He was accused of colluding with Ondhowe and using his certificates to have the latter secure a job with TSC. He was asked to make a written statement to the commission and he complied.

Loss of status

On November 5, 2010, Ogal was summoned to appear before TSC disciplinary meeting on December 7, same year. Ogal maintained he did not know such a person. That same day, Ogal was dismissed from employment. He appealed against the dismissal but never received positive response.

On June 9, 2011, Ogal sued TSC at Industrial Court for unfair and unlawful termination of employment. Lady Justice Linnet Ndolo heard the case on February 27. He sought a declaration that the termination was unfair and an order directing TSC to reinstate him to his position without loss of status or benefits.

In the alternative, he asked for compensation in form of 12-month salary amounting to Sh459,816 for unfair termination, Sh643,742 as pro-rata leave, severance pay of Sh459,816, one month pay in lieu of notice of Sh38,318, his salary for December 2010 of Sh38,318 as well as costs of the suit and interest.

In their defence filed on August 1, 2011, the TSC argued that Ogal had been employed as teacher on permanent and pensionable terms on March 26, 1991.

The TSC assistant deputy director in-charge of discipline Oyucho Timo said the issue was triggered by a letter from a member of the public, which contained allegations of impropriety on the part of some of the commission’s officers.

He said they invited the two teachers to verify the said allegations and discovered that both had procured employment using the same KCE certificate. Ogal was unable to satisfactorily explain how his certificates were accessed and used by someone else to procure employment.

The commission considered his written and oral submissions alongside evidence gathered by TSC and concluded he was guilty of collusion and recommended his dismissal.

The issue for determination by the court was whether Ogal’s dismissal was justifiable and lawful. Section 43(1) of the Employment Act states that in any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.

It was common ground that Ogal’s KCE certificate number 0171760 was used by Ondhowe alias Samwel Bradox to secure employment as a teacher. Ogal claimed he had not given any of his certificates to the said Walter Odhowe, whom he added he did not know. He testified that none of his original certificates had gone missing at any one time.

“This case has many coincidences. First, there was the similarity in names between the claimant and the impostor. Second, the claimant and the impostor never sat in one disciplinary meeting together. Third, both the claimant and Walter Ondhowe were employed in 1986,” the judge observed.

Open to abuse

Ogal blamed TSC for not availing Ondhowe to him for cross-examination. The TSC insisted that the fact the two never met was just a continuation of their collusion.

The judge observed for some unexplained reasons, TSC did not appear to have been keen to carry out thorough investigations.

“Apart from instituting disciplinary proceedings against the claimant and Walter Ondhowe alias Samwel Baradox, the letter did not elicit any further action by the respondent,” she pointed out. The judge questioned how Ondhowe had remained in TSC payroll for so long even after the practice of head count was introduced.

Oyucho had testified that at the time Ogal and Ondhowe were employed, recruitment was done by agents at zonal level, who would then forward the documents of successful candidates to the commission’s headquarters.

“It seems to me that this system, which thankfully has now been abandoned, was open to abuse and manipulation and that the security of the documents submitted at the zonal level could not be guaranteed. Yet, going by the TSC numbers, the impostor (Ondhowe) was recruited before the claimant (Ogal) and the claimant was unable to explain how his documents landed in the hands of a total stranger, who coincidentally had names that were quite similar to his,” Justice Ndolo said.

She concluded that TSC had genuine reason for terminating Ogal’s employment as required under Section 43 of the Employment Act.

But the court considered Section 42(1) of the Employments Act, which requires an employer to explain to an employee reasons for termination of employment and to hear and consider any representations, which the employee may make.

“It is not in contest that the claimant was taken through some form of a disciplinary process. However, upon analysis of both the investigation and the disciplinary processes, the court formed the opinion that the respondent failed the test of procedural fairness in that it did not take its investigations full circle. In the light of the seriousness of the allegations against the claimant and the resultant consequences, the respondent should have done more, but it took the easy option and placed the claimant and the impostor on the same chopping block,” the judge noted.

She ruled that termination of the Ogal’s employment by way of summary dismissal was unfair for want of due procedure.

The judge, however, declined to order his reinstatement. Instead she awarded him eight-month salary in compensation amounting to Sh445,488 for unfair termination, one month pay in lieu of notice. The monthly pay was Sh55,686 being his salary as at the time of dismissal.

The court considered that the code of regulations for teachers makes adequate provision for leave for teachers during school holidays hence Ogal could not be treated differently.

Since Ogal was not on duty in December 2010, he is not entitled to salary for the month.

And so after 27 years in service, Ogal was sent home with Sh501,174 as the compensation for his dismissal. The TSC was ordered to pay costs of the case.