How TSC found itself in quandary over service termination period

Monday October 9 2017

 Nancy Macharia

Teachers Service Commission CEO Nancy Macharia at a past event. PHOTO | ANTHONY OMUYA | NATION MEDIA GROUP 

By ABIUD OCHIENG
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The challenge faced by the Teachers Service Commission (TSC) over the retirement age of teachers emanates from a 2009 directive from the government changing the retirement age from 55 to 60 years.

Following the directive, some teachers worked until they attained 60 years yet they were not eligible, due to system errors. This prompted some of those affected to contest the calculation of their pension claims up to the age of 55.

The court, however, found that TSC had not violated any law.

While arguing the case before the Labour Court, TSC explained that before 2007, it didn’t have its own payroll and therefore was using the Government Information Technology Systems (GITS) which contained many errors in regard to the information of teachers like the dates of birth and dates of appointment.

However, after 2007, the commission started “cleaning” the GITS in order to obtain an error-free system to be used for the Integrated Payroll Personal Data (IPPD) system which had been acquired in 2006.

The said cleaning of errors was a gradual process from 2007 to 2010.

SUED TSC

Mr George Kuria, who had sued TSC, was supposed to have retired on September 1, 2008, having attained 55 years of age.

However, on March 20, 2009, TSC among other government entities received a circular from the Secretary to the Cabinet and Head of Public Service directing that with effect from April 1, 2009, all public servants would retire upon attaining 60 years.

The circular further directed public servants who had not attained 55 years as at March 5, 2009, to continue to serve till they attained 60 years if they wished.

“Mr Kuria was among the teachers whose personal information had errors, specifically the date of birth, and when the payroll was cleaned in 2010 it was established that 139 teachers including him, had already attained the age of 55 years by 2008 and ought to have retired at the age of 55 years,” TSC told the court.

TSC wrote to the Principal Administrative Secretary, Directorate of Public Service Management (DPSM) a report dated March 6, 2014, explaining the circumstances under which the 139 teachers including Mr Kuria were retained in employment even though they had attained 55 years in 2008 before the extension of the retirement age for civil servants to 60 years, and sought authority for the extension of service of the said teachers in order to facilitate the pension payment.

PENSION

The commission further wrote to the Principal Administrative Secretary, DPSM, on May 9, 2014, confirming that the 139 teachers had worked satisfactorily up to the age of 60 years because by the time the payroll was cleaned and their actual dates of birth were established, the effect of the circular allowing public servants to work up to the age of 60 years had already taken effect.

The commission received a letter dated June 9, 2014, from the Ministry of Devolution and Planning directing that the 139 teachers be paid pension up to the age of 55 years and the period exceeding the mandatory retirement age (55) be deemed as period served under contract appointment and further advised that they will be eligible for service gratuity for the extended period of five years.

Consequently, TSC was willing to process the pension claims up to the age of 55 years for Mr Kuria and pay service gratuity at the rate of 31 per cent of the basic salary per annum for the five years he worked, including his last day of service.

Upon attaining 55 years, Mr Kuria was informed by TSC through a letter dated November 22, 2008, that he was due for compulsory retirement and his last day of service would be April 30, 2009.

REVOKED NOTICE

However, following a government directive reviewing mandatory retirement age for civil servants and members of teaching service, TSC, through a letter dated April 12, 2011, revoked his notice of retirement and revised his last working day to August 31, 2013. A clearance certificate issued to him confirmed that he worked until August 31, 2013.

Mr Kuria wanted the Employment and Labour Relations Court judge Nelson Abuodha, to make a finding that he retired on August 31, 2013, and order that his pension be calculated on the basis of his last day of employment and his last pay slip.

The judge declined to grant the orders sought by Mr Kuria, saying that it was not in dispute that he was born on June 26, 1953, and thus attained 55 years around June, 2008, long before the circular extending retirement to 60 years took effect. He could not, therefore, benefit from it.

“The period served by Mr Kuria past June 2008, can only be deemed to be on contract as stipulated under section 56 of TSC’s Code of Regulations,” Justice Abuodha said in his May 22, 2015 judgment.

The fact TSC allowed him to continue working until August 31, 2013, without issuing him with a contract as required by section 56 of TSC’s code of regulations, did not in any way amount to an extension of his employment.

OMISSION

“The omission did not operate to extend what was official government policy that public servants with exception of judges, academic staff in public universities, research scientists and public servants with disabilities, retire mandatorily upon attainment of 55 years,” said Justice Abuodha.

Last year, the High Court arrested an attempt by a teacher to backdate her retirement age so as to continue in employment, which would have denied other qualified trained teachers an opportunity in public service.

Ms Nancy Mwari Doughlas had told the court that in her application for employment in 1983, she had stated her year of birth to be 1956 in the belief that it was her correct year of birth.

She contended that from a tender age she was brought up by her stepmother who guessed her year of birth to be 1956. This misrepresentation was expressed to her from an early age and so she innocently and in good faith believed she was born in 1956. She claimed that, as soon as she was informed by her biological mother that she was born in 1960, she sought to rectify the misrepresentation in her official documents.

She intimated her intention to do so to TSC and the Principal Registrar of Persons, but they refused to rectify the records to reflect the true position of her age. It is upon that refusal that she filed a suit to compel them to rectify their records.

BIRTH CERTIFICATE

Justice Francis Gikonyo, however, ruled that TSC and the Principal Registrar of Persons were right in not accepting the certificate of birth as it had violated the laid down procedure for civil servants who, like Ms Mwari, wish to have a late registration for purposes of determining their age when they are already in employment.

The judge said employees should note that positions of public offices such as the one held by Ms Mwari have fixed dates of exit or retirement which is pegged on date of birth.

They should, therefore, make the declaration of the date of birth with much alertness as it would mar chances of promotion for persons like Ms Mwari or others waiting in line, or force undesired early exit.

“Working from the employment date, that is 1983, Ms Mwari commenced the claim for correction of name in 2006 which is about 23 years and is too late in the day. She was at the time six years short to retirement. In making this statement, I am not attaching any ill-motive on her part, but this fact goes to show that she did not act in good time to have the date of birth corrected,” ruled Justice Gikonyo on May 26, 2016.

Secondly, the request for correction was not done in accordance with the laid down procedures in the TSC code and Director of Personnel Management circular as read together with the Registration of Births and Deaths Act.