Teachers on Friday scored a huge victory after the Labour court set aside new career progression rules to guide their promotions, ruling that such upgrades cannot be based on existing vacancies alone.
This means that more than 50,000 who have gained higher academic qualifications according to data from Teachers Service Commission deserve to be promoted to a higher grade.
TSC had argued that promotions can only be based on performance in the new career progression guidelines, the establishment and the existing vacancies.
The Kenya National Union of Teachers had instead pushed for promotions based on merit, seniority, vacancies, academic and professional qualifications among others.
It said thousands of teachers had stuck in one grade since 2014 after attaining higher qualifications.
“TSC will undertake promotions in accordance with the relevant provisions of the Code of Regulations for Teachers and the schemes of service with respect to all unionisable teachers,” ruled Judge Byram Ongaya in the Labour and Employment Relations Court that was packed with union officials.
He ruled that Knut and TSC must consider reviewing the prevailing schemes of service to align them with the Collective Bargaining Agreement (CBA) structure without breaching the code of regulations for teachers.
The court also rejected an argument by TSC that head teachers and their deputies cannot be unionisable because they are school managers, saying they are entitled to belong to a union in accordance with the labour laws. It also stopped the TSC from deploying such teachers outside the geographical areas they represent.
TSC wanted head teachers to focus on management of schools and not union affairs, saying it had created conflict of interest.
The judge ruled that TSC may, however, promote other teachers whenever it pleases as long as it doesn’t contravene the code of regulations.
The TSC had gone to court in January to stop Knut from calling for a national strike over transfers of its officials outside their areas of representation, promotions, performance appraisals and the teacher professional development programme.
Yesterday, Justice Ongaya shelved the performance appraisal system for teachers, which has been in place since 2016, and asked the TSC and the union to convene a meeting by December 1 to review it for a new rollout in January next year.
Knut had protested that they were not involved in development of the assessment tools. Justice Ongaya said the current training module for teachers should not be implemented.
He also ruled that the existing module falls short of professional development programmes as required by the TSC Act and other regulations.
In the same way Parliament cannot delegate its powers when it comes to legislation of laws, the judge said, constitutional commissions and independent offices or authorities should also caution themselves that administrative policy cannot substitute a regulation.
He pointed out that TSC has the responsibility of ensuring the disputed modules are in accordance with relevant regulations.
And since the legal battle had landed in the corridors of justice after failed attempts to have the matters solved amicably, the judge urged parties in the case going forward to end the matter amicably.
Knut Secretary-General Wilson Sossion praised the judgement and asked the TSC to quickly implement the court’s orders.
“We shall be pushing for the implementation of the court’s orders, we have never opposed the appraisal system but were strongly opposed to the new methods introduced by TSC without consultation,” he said.
He agreed with the judge’s finding that once there is a legal process and public participation, it is possible to agree on funding of the professional development programmes.
But he pointed out that as Knut, they felt that teachers should not be made to pay for the courses through salary deductions, saying the employer should foot the bill.
But even as the judgment appears to have settled nearly all the issues which had put the union and the commission at loggerheads since the start of the year when the matter spilt over to the courts, TSC still intends to take the matter to the appellate court.
“We have noticed a number of flaws in the determination, there are legal loopholes and facts which the judge disregarded hence we intend to appeal,” said lawyer Otieno Oyucho.
The row found its way to court after a disagreement on the issues in dispute that saw parties file a memorandum of disagreement in March.
The court had attempted to have the matter resolved through conciliatory proceedings which failed to bear any fruits.
TSC had agreed to restrict transfer of Knut officials who are not institutional administrators within respective geographical areas even if they were not considered as unionisable.
But the judge ruled that no employee should be victimised simply because of belonging to a trade union and that all employees enjoy equal rights.
According to Knut, teachers who have already attained higher qualifications and whose certificates are already submitted to TSC are entitled to promotions to higher grades without being subjected to any other criteria.
On performance appraisal tools, Knut had claimed that these were developed for a pilot project whose report had not yet been availed so as to inform a way forward.
But the judge ruled that Knut participated in the development of the performance management tools and that the only problem was the validation of the same hence compelled TSC to convene a meeting to find a way forward.
Out of the 317,000 teachers in the country, Knut has about 190,000 members. About 60,000 do not belong to any union while the rest belong to the Kenya Union of Post Primary Education Teachers but who were not part of this case. However, their members stand to benefit from the ruling.