Court Strikes Down TSC Teacher Transfers as Disciplinary Measure, Terms Regulations Unconstitutional
The Employment and Labour Relations Court in Nairobi has determined that the Teachers Service Commission (TSC) does not possess overarching authority to transfer teachers as a form of disciplinary action. Justice Byrum Ongaya, in his ruling, emphasized that such transfers are not considered within the commission’s disciplinary measures.
Simultaneously, the Judge declared specific sections of TSC regulations, which grant the review committee final authority over teachers’ punishment, as unconstitutional.
Justice Ongaya expressed the view that regulation 156 of the TSC Code of Regulations provides the secretary to the committee and the officer in charge of discipline with voting powers, despite their non-commissioner status.
ALSO READ: How And When TSC Can Transfer a Teacher
The Judge pointed out that the Dr. Nancy Macharia-led commission failed to demonstrate the delegation of its powers to the subordinate committee. He emphasized that decisions of the review committee must be presented before the full commission for a conclusive resolution.
“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,” stated Justice Ongaya.
Justice Ongaya asserted that only commissioners hold the authority to review or affirm decisions on behalf of the TSC.
The case revolved around the dispute between former Moi Girls School Nairobi deputy principal Dorcas Chelegat and various entities, including TSC, the school’s board, the Attorney General, and the school’s principal Margaret Njaggah.
In her case, filed by lawyer Alex Masika, Chelegat argued that a principal lacked the authority to interdict her as there was no TSC-appointed investigation panel or disciplinary committee. The alleged interdiction, she contended, violated her labor rights.
ALSO READ: How to Apply for TSC Teacher Transfer Online; Application Process
Chelegat further claimed that the motive behind the interdiction was to facilitate her transfer from the school. She asserted that Njaggah’s letter aimed to create an impression that they could not work together.
The crux of the matter revolves around a letter from Njaggah instructing Chelegat to refrain from the school until a disciplinary case against her is heard and determined.
The school principal asserted that on March 16, 2023, her deputy failed to effectively manage the logistics for the school’s Annual General Meeting (AGM), resulting in an unorganized event. Simultaneously, Njaggah claimed that Chelegat neglected to submit an investigation report to be presented to the Teachers Service Commission (TSC).
Accusing her deputy further, the principal alleged that Chelegat permitted outsiders to enter the school compound on March 15, 2023, for vending their goods.
Masika, representing the petitioner, argued, “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.”
ALSO READ: TSC Teacher Transfer Application Process
In a supporting affidavit, Chelegat contended that the letter dated June 30, 2023, indicated that the principal had already made a decision to oust her. She asserted that Njaggah acted as both the complainant and judge, having issued a show cause letter on June 12, 2023, requiring her appearance before the board and deeming her responses unsatisfactory.
Chelegat highlighted that the charges presented on June 30 mirrored those in an earlier show cause letter dated June 2, 2023. Despite being declared guilty by the complainant, she provided a detailed response on June 19, 2023.
Moreover, she criticized the Board of Management for not allowing her to pose questions or present evidence in defense against the allegations. She also argued that the TSC Act mandates a disciplinary case to be heard with a report from an investigations panel.
The deputy principal, facing disciplinary actions for the first time in her 27-year career, deemed the allegations as minor housekeeping issues warranting a warning.
Njaggah and the board maintained that they provided a fair hearing, asserting that Chelegat had not exhausted all dispute resolution mechanisms. TSC contended that Chelegat had received a punishment warning and had been transferred to Huruma Girls High School.
ALSO READ: Teacher Transfer of Service (TSC to PSC); What You Should Know
Court Strikes Down TSC Teacher Transfers as Disciplinary Measure, Terms Regulations Unconstitutional
