Teacher transfer not a disciplinary measure, court tells TSC

Employment and Labour Relations Court in Nairobi has declared that the Teachers Service Commission (TSC) has no sweeping powers to transfer teachers as disciplinary action.

Justice Byrum Ongaya ruled that said transfers do not form a part of the commission's disciplinary measures.

At the same time, the Judge declared sections of TSC regulations giving its review committee a final say on teachers' punishment unconstitutional.

Justice Ongaya was of the view that regulation 156 of the TSC Code of Regulations gives the secretary to the committee and officer in charge of discipline powers to vote despite them not being commissioners.

The Judge found that the Dr Nancy Macharia-led commission had not proved that it had delegated its powers to the subordinate committee.

He said that the review committee must be tabled before the full commission for a final decision.

"It is not said and shown that the Commission has delegated its powers to the Review Committee and it is not said that the decision of the Review Committee is tabled before the full Commission by way of recommendation for the Commission to determine one way or the other," said Justice Ongaya.

The Judge declared that only commissioners can review or affirm a decision on behalf of the TSC.

The case pitted former Moi Girls School Nairobi deputy principal Dorcas Chelegat against TSC, the school's board, the Attorney General and the school's principal Margaret Njaggah.

Chelegat, in her case filed by lawyer Alex Masika, argued that a principal had no powers to interdict her deputy.

She argued that the alleged interdiction was a violation of her labour rights as there was no investigation panel or a disciplinary committee set up by the TSC to probe her.

The reason behind the interdiction, the court heard, was to allegedly have the deputy out on transfer from school.

Chelegat claimed that Njaggah's letter was meant to create an impression that they could not work together.

At the heart of the dispute is a letter by Njaggah requiring Chelegat to stay out of the school until a disciplinary case against her is heard and determined.

The principal claimed that her deputy had on March 16, 2023, failed to coordinate the school's Annual General Meeting (AGM) logistics. This, she alleged led to a disorganised event.

At the same time, Njaggah alleged that Chelegat failed to submit an investigation report to be handed over to TSC.

The principal also accused her deputy of allegedly allowing strangers into the school compound on March 15, 2023, to hawk their wares.

"The petitioner is well aware that her interdiction is for the collateral reason being that the 1st respondent (Njaggah) has for a while been unable to cause the 3rd respondent (TSC) to transfer her out of Moi Girls School Nairobi and hence 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," said Masika.

In a supporting affidavit, Chelegat said that the June 30, 2023 letter was an indication that the principal had already made up her mind to evict her.

She argued that Njaggah was acting as the complainant and judge as she had on June 12, 2023, written a show cause letter requiring her to appear before the board and had indicated the responses were not satisfactory.

"The foregoing charges were the same five charges contained in the earlier show cause letter dated June 2, 2023. The petitioner was required to make a response once more, on the same charges she had been declared guilty by the complainant. And so she once more made a detailed response vide her letter dated June 19, 2023," said Chelegat.

Further, she said that on June 22, 2023, the board met but Njaggah sat in the meeting as a panellist and not as the complainant.

Chelegat faulted the school's Board of Management for failing to allow her to ask questions or produce evidence to counter the allegations against her. At the same time, she argued that it is against the TSC Act for the board to hear a disciplinary case without a report from an investigations panel.

The embattled deputy principal said the allegations against her were housekeeping issues that only qualified for a warning.

Chelegat said in her 27-year career, she has never received a disciplinary letter or warning from her employer.

Njaggah and the board on the other hand insisted that they had given her a fair hearing. In addition, they argued that Chelegat had not exhausted all the dispute resolution mechanisms.

TSC argued that a punishment warning had been issued to Chelegat and she had been transferred to Huruma Girls High School.