A teachers’ union has moved to court seeking to have top Teachers Service Commission (TSC) officials punished for disobeying court orders, in a fresh onslaught likely to open new legal battles between the two bodies.
In its application in the Employment and Labour Relations Court, the Kenya National Union of Teachers (Knut) wants TSC Chief Executive Officer Nancy Macharia and the commission chairperson jailed for six months.
TSC chairperson Lydia Nzomo retired in November last year after her term expired. Mbarak Twahir is the acting chairperson.
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The union says the officials snubbed orders barring them from implementing a circular on transfers, appraisals, promotions, training and union membership. It also states that TSC defied orders that required it to shelve career progression guidelines (CPGs) issued in 2018, and that it has ignored reminders that the orders have not been set aside.
“Despite being aware of a pending application for contempt, the first contemnor has continued to place advertisements and issued circulars for implementation, including applications from suitably qualified candidates through career progression guidelines to fill the vacancies created,” argues Knut’s lawyer Hillary Sigei.
If the union gets the orders, all promotions of teachers undertaken under the contested CPGs could be affected. It also means that about 14,000 recently advertised promotions would be stopped as TSC said they were purely based on CPGs.
All Knut members who were disadvantaged by the implementation of the CPGs, which included benefits to the Sh54 billion collective bargaining agreement, will be considered.
The suit could offer a lifeline to Knut whose membership has dwindled and revenue stream turned into a trickle after TSC stopped the check-off system for the remission of union dues.
This latest legal battle stems from a judgement by Labour Court Judge Byrum Ongaya. Knut Secretary-General William Sossion said Justice Ongaya quashed the promotions circular, which had limited career progression to those with teacher training certificates.
Schemes of service
“The court returns that the petitioner will undertake teacher promotion in accordance with the relevant provisions and schemes of service with respect to all unionisable teachers,” the judge ruled.
TSC was ordered to follow the scheme of service on promotions and align it with the CBA signed with the unions.
Sossion said that TSC has been engaging in illegality by breaching various sections of CBAs, the Code of Regulations for Teachers, and clauses of international labour laws.
In May 2018, the teachers’ employer had issued a policy introducing CPG and abolishing three schemes of service.
TSC argued in papers filed in Parliament that when the CBA was signed, it introduced a new grading system for teachers known as CPGs, which replaced the scheme of service.
Macharia said Knut challenged the implementation of the CPGs in court. The effect of the court ruling, she said, meant that all Knut members could not benefit from the third and fourth phases of the multi-billion-shilling salary raise and promotions.
“To comply with the resultant court orders, the commission undertook teacher promotion in accordance with the relevant provisions of the Code of Regulation for Teachers, the schemes of service for all Knut members, and CPGs for non-members of Knut,” reads the TSC report tabled in Parliament.
But Sossion argues that the court issued a caveat for TSC to consult with the unions to review the current schemes of service in a bid to align it to the prevailing CBA.
Knut now says that TSC has gone ahead to declare vacancies based on the same circular. The application window was supposed to close by January 13 this year.
“Concerted efforts have been made by the applicants to have the contemnors comply with the notice of the present action in vain through the pending contempt application, various letters and efforts to convene meetings in order to ensure compliance,” said Mr Sigei.