Blow to TSC as court rules transfer is not teacher disciplinary measure.
The Teachers Service Commission (TSC) does not have the authority to transfer teachers as a form of disciplinary action, according to a ruling made by the Nairobi Employment and Labour Relations Court.
Judge Byrum Ongaya declared that the transfers in question are not covered by the commission’s disciplinary actions.
Concurrently, the Judge ruled that portions of TSC regulations that granted its review committee the last word on teacher punishment were unconstitutional.
According to Justice Ongaya, the committee secretary and the person in charge of discipline have the ability to vote under TSC Code of Regulations 156 even though they are not commissioners.
The Judge determined that the commission headed by Dr. Nancy Macharia had not demonstrated that it had transferred authority to the lower committee.
For a final conclusion, he stated that the review committee needed to be presented to the entire commission.
Justice Ongaya stated, “It is not stated and demonstrated that the Commission has assigned the Review Committee its authority, nor is it stated that the Review Committee’s conclusion is presented to the entire Commission as a recommendation for the Commission to make a decision.”
The Judge ruled that the only people authorized to review or uphold a TSC judgment are the commissioners.
In the case, Margaret Njaggah, the principle of Moi Girls School Nairobi, the Attorney General, the board, and former deputy principal Dorcas Chelegat faced off against TSC.
Chelegat claimed that a principal lacked the authority to revoke her deputy in her lawsuit, which was filed by attorney Alex Masika.
She contended that since the TSC had not established an inquiry panel or disciplinary committee to look into her, the purported interdiction violated her labor rights.
The court was informed that the interdiction was necessary because the deputy was supposed to be on transfer from school.
Njaggah’s letter, according to Chelegat, was intended to give the appearance that they couldn’t cooperate.
The letter from Njaggah, which demands that Chelegat remain out of school until a disciplinary complaint against her is heard and decided, is at the center of the conflict.
The principal asserted that her deputy had neglected to arrange the arrangements for the school’s Annual General Meeting (AGM) on March 16, 2023. She claimed that this resulted in an unorganized occasion.
Additionally, on March 15, 2023, the principal charged her deputy with permitting others to enter the school grounds and sell their wares.
“The real intention is to create a reasonable ground upon conclusion of the interdiction that it is practically untenable for a principal who has interdicted her deputy to continue working together,” Masika stated.
“The petitioner is well aware that her interdiction is for the collateral reason being that the 1st respondent (Njaggah) has been unable for a while to cause the 3rd respondent (TSC) to transfer her out of Moi Girls School Nairobi.”
According to Chelegat’s supporting affidavit, the letter dated June 30, 2023, suggests that the principle has already decided to expel her.
She said that because Njaggah had sent a show cause letter on June 12, 2023, demanding her to appear before the board and indicating that the responses were insufficient, Njaggah was acting in the capacity of both the complainant and the judge.
The five charges listed above were the identical ones as were in the June 2, 2023, show cause letter. The petitioner was obliged to respond again, this time on the identical accusations for which the complainant had found her guilty. Thus, in a letter dated June 19, 2023, she responded in length once more, according to Chelegat.
She added that when the board convened on June 22, 2023, Njaggah attended as a panelist rather than as the complaint.
Chelegat accused the Board of Management of the school of denying her the opportunity to challenge the accusations made against her or to present proof. She further asserted that the board cannot consider a disciplinary action without first receiving a report from an investigative panel, as required under the TSC Act.
The troubled deputy principal claimed that the accusations against her were minor housekeeping infractions that called for a warning simply.
Chelegat claimed that in her 27 years of employment, her employer has never issued a warning or disciplinary letter.
On the other hand, Njaggah and the board maintained that they had provided her with a fair hearing. Furthermore, they contended that Chelegat had not used up all available avenues for resolving disputes.
TSC contended that Chelegat had been sent to Huruma Girls High School and given a warning about penalty.
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