Court restrains TSC from initiating disciplinary actions against striking JSS teachers

The Employment and Labour Relations Court (ELRC) has issued orders restraining the Teachers' Service Commission (TSC) from taking any disciplinary actions against intern teachers pending a hearing and determination of a labour suit against the teachers' employer and the Ministry of Education.

The order was issued by ELRC Principal judge Byram Ongaya of the high court in Nairobi after a non-governmental organisation (NGO) - Forum for Good Governance and Human Rights - suing on behalf of the teachers sought the orders.

Ongaya directed that the TSC shall not institute any disciplinary proceedings against the teachers and all show cause letters issued to interns who went on strike remain suspended.

The Secretary General of the NGO Samson Omechi Ongera sued the TSC, the Ministry of Education and the Higher Education Loans Board (HELB) together with the Attorney General for "unlawfully recruiting" the teachers who are striking for lack of clarity in their terms of engagement with the government.

Ongera argues that the TSC is planning to commence disciplinary proceedings in accordance with the TSC Code of Regulations which is an appendage of Article 237 (2) of the constitution of Kenya.

The activist says the teachers in question were not appointed in accordance with the provisions of Article 237 (2) of the constitution and therefore the contract fell short of contracts of employment.

The Article states that the TSC shall be responsible for the registration of trained teachers in the teaching service and a person shall not engage in the teaching service unless such person is registered as a teacher under this Act.

According to Ongera, TSC is writing show-cause letters to teachers that it has not properly employed.

He is challenging the continued engagement of the teachers as interns by the TSC despite the fact that they are professional teachers.

"The teachers are apprehensive that the TSC is targeting their professional licences and or the disciplinary proceedings are initiated against them to harass, intimidate, coerce and blackmail them into submission," states Ongera, adding that the proceedings as set out in the Employment Act are inapplicable in the circumstances.

The teachers had been contracted on an 11-month contract in February 2023 and the period of the contract ended on December 31, 2023.

The teachers were expecting to be recruited on permanent and pensionable terms by the TSC.

However, their contracts expressly provided that the contracts were one-off contracts and non-renewable and stated that they were to end within the specified period.

The TSC did not recruit another batch of interns to take the positions therefore 21,500 intern teachers continued to work.

Ongera tells the court that TSC has been obtaining free services from the teachers and is urging the high court to find that the manner in which the teachers were recruited was unconstitutional and unlawful.

"The teachers have an inalienable right as citizens of this country. Their Bill of Rights can only be suspended in circumstances provided by the constitution and they cannot be forced into a contract to the extent to serve as servitudes or slaves and to be demeaned as people of no value," states Ongera.

Ongaya encouraged the parties in the case to consider a compromise with a view to recording a deal within the orders previously issued in relation to the suit.