Court orders teachers back to class but unions say strike still on

The standoff between teachers and the Teachers Service Commission (TSC) continued even as the Employment and Labour Relations court suspended the strike for 90 days, effectively ordering that all the schools be reopened.

But in quick response to the ruling, teachers’ unions maintained their hardline position that the strike is still on.

Buoyed by the court ruling, the Education Ministry quickly released a circular ordering the re-opening of schools on Monday.

In the circular, Education PS Belio Kipsang also extended the school term by one week and directed that all mid-term holidays be suspended to recover lost time.

“The remaining lost time will be recovered in the subsequent terms of the school calendar in year 2016,” said Mr Kipsang.

The PS said that no additional levies shall be charged on parents in the pretext of recovering costs occasioned by the pay dispute. According to the circular, public schools will close on November 20th.

Kipsang said the term dates will largely apply to Standard One to Standard Seven and Form One to Form Three students who had been asked to go home last week.

“Considering that during the period of pay dispute there was little learning in some schools while others did the full load as planned, it is directed that schools that bore the full effect of the dispute will extend the term dates by one week and forego the half term break,” he said.

But adamant union leaders urged their members to remain at home as they analyse the ruling and the directions given by the court on how the parties can reconcile their differences.

Labour Court judge Justice Nelson Abuodha directed that teachers should resume teaching immediately for the sake of children, but at the same time declared the ongoing strike legal.

“I hereby direct that teachers should get back to class immediately for the sake of children,” said the judge.

The judge pronounced that the strike was protected contrary to the earlier findings of Lady Justice Monicah Mbaru who had removed the legal shield for the disgruntled teachers.

Justice Abuodha gave the parties 90 days to resolve the dispute but noted that if they will not have agreed within the set period, they will be at liberty to take any lawful action against each other.

Withdraw their appeal

“The Ministry of Labour shall appoint an arbiter within 30 days and both parties shall engage in negotiations within 90 days. If they will not have reached an agreement, either party shall be at liberty to take any legal action against the other,” Justice Abuodha ruled.

He lashed at the Jubilee Government for the “can’t pay, won’t pay” pronouncement which he said was unreasonable and amounted to defiance of court orders.

He said the issue had already been politicised, a scenario which created more tension between the parties.

But the Kenya Union of Teachers Secretary General Wilson Sossion told journalists that they had requested the court for a mention of the same case on Monday and were still consulting with their lawyers.

“The strike is still in full force. What we are doing is to analyse the ruling and the five orders, especially the conciliatory orders given by the judge,” said Mr Sossion.

He however, cautioned that for any conciliatory move to be initiated, TSC must withdraw their appeal case at the Court of Appeal and make the necessary payments.

“We cannot be talking when someone is still in court. These are the issues we are still analysing and we shall communicate to members later,” said Sossion.

He hailed the judgment as well reasoned and praised “Kenyan court for making history” because they are upholding the Constitution

“We are happy because the court has not declared the strike illegal as was asked by TSC,” said Sossion.

Kenya Union of Post Primary Teachers (Kuppet) national chairman Omboko Milemba also told his members that the strike was still on until the unions advise otherwise.

“The teachers’ strike is still on until we meet and agree on way forward following today’s (yesterday) court ruling that suspended the strike for 90 days,” he said.

The judge noted that the current stalemate between the unions and TSC was a “festering wound” for a long time, which the Government was unwilling to resolve.

He blamed the recurrent strike on the Government stating that it has never looked at the teachers’ affairs from the time of the first Knut secretary general Ambrose Adongo to this day.

President Uhuru Kenyatta in a televised address to the nation on Sunday had indicated that the court’s directive would push the wage bill to unmanageable levels. He said the Government was unwilling to honour the orders of both the Court of Appeal and the Labour Court.

“This court cannot be the surgeon and at the same time the pathologist to carry out operations of that which is dead. The Government has categorically stated that it won’t pay and can’t pay. This is not an approach that can be adopted by the Government and at the same time rush to the court to seek orders,” he ruled.

The commission through lawyer Geoffrey Obura had moved to the court alleging that the unions never served it with a strike notice as required by the law.

The lawyer argued that the strike called by the unions after failure to pay the increased salaries was illegal.

“This court has powers to stop the illegal strike called by the respondents’ officials,” he argued adding that candidates will be most affected if the strike was not called off.

However, the judge declared that teachers were justified to go on strike as the commission had indicated that they would not get even a single shilling from the court award.

He was of the view that there was no need for Knut and Kuppet to serve a notice to the commission.

Threatened to sack

Justice Abuodha said that the Labour and the Appeal Courts did not prohibit teachers from engaging in the strike if the commission failed to honour the award. He said that laid out strike procedures could be overlooked in the event the employer was defiant.

“It cannot be said that teachers’ strike was as a result of the judgment. The strike is lawful, as the courts did not prohibit them from engaging in a lock out. The two parties had not also agreed to refer the matter to an arbitrator and thus there was nothing wrong for them to go on strike,” he said.

The unions and the commission, backed by the State, held onto their respective hard line positions to justify their actions, even with the paralysis in secondary and primary schools.

The orders by the judge also cushioned teachers from any disciplinary action by their employer. The commission had already threatened to sack those who participated in the strike, including head teachers.

This means that teachers will be paid their August and September salaries and allowances although they have stayed away from classrooms for the last four weeks.

Senior counsel Paul Mutite who appeared for Knut told the court that he would have to assess the judgment before giving his client advice on what to do.

“I request that the court provides the judgment that I can advise my client on what actions to take,” he said.

State counsel Wanjiku Mbiyu on the other hand told the court that the Attorney General would ensure that a new gazette notice would be published to ensure schools are reopened on Monday.

“We will have another notice to have schools operating on Monday. There was a gazette notice indicating that schools have been closed and thus we need another one to lift the earlier directive,” she said.

She urged the court to wind up the matter yesterday, instead of returning to court on Monday for a mention as requested by the union but her prayers were not granted.