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Summary of the dispute between the Teachers Service Commission and the Teachers Trade Unions

Summary of the dispute between the Teachers Service Commission and the Teachers Trade Unions

Teachers Service Commission v Kenya National Union of Teachers and 3 others

Application no. 16 of 2015

The Supreme court at Nairobi

August 24, 2015

W M Mutunga CJ, K H Rawal DCJ, M K Ibrahim, J B Ojwang, S Wanjala, SCJJ

Reported by Teddy Musiga & Daniel Hadoto

Download the Decision

Introduction

On the August 24th, 2015 the Supreme Court of Kenya delivered a judgment in a bench of five justices of the Supreme Court. They dismissed the application filed by the Teachers Service Commission that sought to set aside the decision of the Court of Appeal.

This case summary is thus presented in a question and answer (Q&A) format to explain the dispute between the teachers, their unions and their employers from the proceedings in court. It traces the dispute from the Employment and Labour Relations Court (a court with the same status as the High Court), to the appeal at the Court of Appeal and finally the appeal to the Supreme Court.

What is the genesis of the dispute between the teachers, their trade union and their employer (the Teachers Service Commission)?

In January 2015, the teachers’ trade union – Kenya National Union of Teachers and the Kenya Union of Post Primary Education Teachers (KNUT & KUPPET respectively) called for a national wide strike that paralyzed primary, secondary and tertiary colleges’ education in Kenya.

Teachers Service Commission (petitioner) filed a petition at the Employment and Labour Relations Court seeking inter-alia orders of a prohibitory injunction to restrain the officials and members of the Respondents (KNUT & KUPPET) from continuing with the strike pending the hearing and determination of the application inter- partes.

The Employment & Labour Relations Court granted the applicant (TSC) the orders they sought and directed that the Application and the Petition be served on the Respondents (KNUT & KUPPET) and the interested parties. At the date of the inter-partes hearing, the parties agreed that teachers would resume work pending the determination of the petition. The agreement resulted to a consent judgment that was entered between the parties. Once the consent was recorded in court, the respondents (KNUT & KUPPET) called off the strike and resumed duty.

What was the content of the Consent filed at the Employment and Labour Relations Court?

The consent was recorded on the 14th January, 2015 with the following terms;

  1. That the parties had agreed to have the economic dispute adjudicated by the court.
  2. The KNUT & KUPPET were to file their memorandum by 19th January 2015
  3. The TSC were to file and serve their memorandum on or before 26th January, 2015
  4. The Central Planning and Monitoring Unit (CPMU) and the Salaries Remuneration Commission (SRC) were to file their reports within ten days from the 26th January, 2015
  5. Meanwhile, the unions (KNUT & KUPPET) were to forthwith call off the strike that had been going on since the 5th January, 2015 and all the teachers were to resume duty by Monday the 19th January, 2015
  6. TSC undertook not to victimize any teacher/ union officials/ unions who could have participated in the strike including payment of salaries.

What was the effect of that consent?

First, it led to a national wide resumption of schooling effective from the 19th January, 2015 and the ceasefire has held to date. Secondly, on the consideration of calling off the national wide strike by the two unions and upon undertaking by the TSC not to victimize the teachers, officials of the unions and the unions that had participated in the strike, the Petition filed by the Teachers Service Commission was compromised and it was replaced by an economic dispute. The Unions (KNUT & KUPPET) became the claimants in the economic dispute and the TSC being the employer became the respondent. SRC remained an interested party in the economic dispute. All the parties agreed to have the economic dispute resolved before the same court and undertook to respect and participate in the prosecution of that economic dispute to its conclusion.

What then was the economic dispute about?

The applicant (TSC) upon realization of the industrial peace following the consent judgment of 14th January, 2015 filed another application seeking orders to set aside that consent.The Employment & Labour Relations Court upon hearing the said application filed by TSC inter-partes ordered the parties to inter-alia abide by/honour the initial consent orders pending the hearing and determination of a petition before court on Economic dispute filed pursuant to the consent orders.

TSC (the applicants’) main contention before the court was that despite the several salaries reviews and Government’s attempts to improve basic salaries of the teachers, the teachers still went on strike.The teachers (respondents) on their part claimed that the basic salaries and allowances were not periodically reviewed as agreed between the parties; they further submitted that said increments had been done arbitrarily in the name of harmonization of teachers’ salaries with those of civil servants.

What were the legal issues for determination in the economic dispute?

The legal issues raised for determination were first, whether the consent entered by the parties was valid and whether it could be vacated. Secondly, whether the unions (KNUT & KUPPET) were entitled to conclude a Collective Bargaining Agreement with the Teachers Service Commission in determining the terms and conditions of employment of all unionisable teachers in the country. Thirdly, whether the Salaries and Remuneration Commission had a role in the negotiations and determinations of the basic pay of the teachers. Fourthly, whether the teachers were entitled to a basic salary increment in the Collective Bargaining Agreement and fifthly, whether the teachers were entitled to a review of any allowances and if so, what was the effective date of the Collective Bargaining agreement?

What was the decision of the Employment & Labour Relations Court on the issues raised?

The court rejected the application to set aside the consent or even to open up the petition filed by the TSC since TSC had fully benefited from that consent order which brought to an end a national wide strike of its employees. TSC was thus estopped in law and fact from reneging on the consent it had fully participated in crafting and having enjoyed the fruits of the consent order.

The evidence before the court suggested that TSC made an offer to the Unions of a basic salary increase between 50 – 60% for a period of four (4) years. They admitted that there was a huge disparity between the average salary increase for the lowest cadre of teachers (P1) at minus – 8.95% and that of the highest cadre of teachers (Chief Principal) at plus +48.82% for the period under review. It was also clear from the totality of evidence before the court that the average salaries increase for the teachers between 1997 – 2009 was way below that of civil servants. Therefore there was a dire need to harmonize the salaries of teachers within the different cadre and also with other civil servants.

The court then made the following orders;

a) Basic salary increment of between 50 – 60% for four (4) years approved

b) The Collective Bargaining Agreement containing the 50 – 60% basic wage increase, effected from 1st July 2013 to 30th June 2017.

c) Allowances increment awarded to the teachers by TSC including House allowance, Leave allowance, Hardship allowance, Advance for motor vehicle purchase and Mortgage facility confirmed with effect from 1st July 2015, and were to be reflected in the Collective Bargaining Agreement for the period 1st July 2013 to 30th June 2017.

d) Other allowances and benefits in the Memoranda of the parties including; Responsibility allowance, Hazard allowance, Disturbance allowance, Accommodation and night out allowance, Mileage claims, Study leave, Sabbatical leave and any other allowances and benefits that the parties may wish to be reflected in the Collective Bargaining Agreement as negotiable items were to be reflected in the Collective Agreement for the period 1st July 2013 to 30th June 2017 in their existing status.

e) The CBA, duly signed by the parties to be registered with the Court in terms of Section 60(1) of the Labour Relations Act, 2007 within thirty (30) days from the date of the judgment.

f) Judgment to take effect immediately not withstanding any delay in preparation of the CBA document and its registration with the Court

In making those orders, the court observed that those awards were hoped to bring to an end the era of arbitrary remuneration awards to the teachers and that the era of acrimony and regular national wide strikes by the teachers could be replaced by an era of guided collective bargaining in a four year cycle.

What was the appeal to the Court of Appeal about?

The Teachers Service Commission (TSC) being aggrieved and dissatisfied by the decision of the Employment and Labor Relations Court, in Nairobi Petition No. 3 of 2015 lodged a Notice of Appeal, pursuant to which it filed at the Court of Appeal an application for stay of execution of the Employment & Labor Relations Court’s Judgment, under Rule 5(2) (b) of the Court of Appeal Rules, 2010. Upon hearing the application, the Court of Appeal granted a conditional stay of execution of the Judgment and Orders of the Employment and Labor Relations Court on the following terms;

  1. That the applicant (TSC) and the interested parties (the Salaries & remuneration Commission & the Attorney General) were to implement the increment ordered by the judge in respect of the basic salary with immediate effect from 1st August, 2015.
  2. That the applicant (TSC) was to continue paying the increment ordered above until the hearing and final determination of the appeal.
  3. Implementation of the judgment in respect of arrears of salary and all allowances ordered by the judge was stayed until hearing and determination of the final appeal.

What was the appeal to the Supreme Court about?

TSC was once again was dissatisfied with the outcome of the Court of Appeal’s ruling, and filed application seeking a stay of execution against the interim Orders granting conditional stay of execution against the Judgment of the Employment and Labor Relations Court. KNUT (1st respondent) filed a preliminary objection contesting the jurisdiction of this Court to re-consider, on appeal, the exercise of the Court of Appeal’s discretion under Rule 5(2) (b). It specifically contested the power of the Supreme Court to entertain interlocutory appeals from the Court of Appeal.

What were the legal issues for determination at the Supreme Court?

The legal issues for determination were, first, whether an application challenging the Orders of the Court of Appeal under Rule 5(2) (b) can be regarded as an appeal, for the purposes of article 163(4) (a) of the Constitution of Kenya, 2010.Secondly, whether the Supreme Court had jurisdiction to hear “appeals” arising from interlocutory Orders of the Court of Appeal under Rule 5(2) (b) of the Court of Appeal Rules and third, whether there exists a distinction between the exercise of the Court of Appeal’s power under rule 5(2) (b) with the inherent power of the Supreme Court to grant interim reliefs.

What was the decision of the Supreme Court?

Where the Supreme Court had been called upon to invoke its jurisdiction under article 163 (4) (a) of the Constitution, the Supreme Court had almost invariably proceeded on the assumption that there existed a substantive determination of a legal/constitutional question by the Court of Appeal which the intending appellant sought to impugn. That was the rational meaning to be ascribed to the word “appeal”, in an adversarial system, where jurisdiction was assigned by the legal norms to a hierarchy of Courts.

An application under rule 5(2) (b) of the Court of Appeal Rules was not an appeal as envisaged by article 164(3) of the Constitution of Kenya, 2010. For purposes of judicial proceedings an appeal was broadly speaking, a substantive proceeding instituted in accordance with the practice and procedure of the Court, by an aggrieved party, against a decision of a Court to a hierarchically-superior Court with appellate jurisdiction, seeking consideration and review of the decision in his favor.

Discretionary decisions which originated directly from the appellate Court were by no means the occasion to turn the Supreme Court into a first appellate Court, as that would stand in conflict with the terms of the Constitution. The application before the Supreme Court contested the exercise of discretion by the appellate Court, when there was neither an appeal, nor an intended appeal pending before the Supreme Court. The appeal before the Court of Appeal was yet to be heard and determined.

An application so tangential, could not be predicated upon the terms of Article 163 (4) (a) of the Constitution. Any square involvement of the Supreme Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, and for which the priority date had already been assigned. Therefore, an involvement of by Supreme Court at such an early stage would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.

In the Circumstances, the Supreme Court lacked jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court. The court could not take jurisdiction if it did not have to, but, it was equally true that it had to take jurisdiction if it had to. The court had no more right to decline the exercise of jurisdiction which is given than to usurp that which was not given. The one or the other would be treason to the Constitution.

The Supreme Court thus allowed the preliminary objection and the application filed by TSC was disallowed.

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