160,000 teachers to miss out on pay rise after court ruling
Justice Byram Ongaya on Friday set aside the career progression rules, which guide promotions.
He ruled that the TSC should carry the upgrades using the code of regulations for teachers and the relevant schemes of service.
The ruling, which could turn out to be a pyrrhic victory for Knut and its members, also stopped the implementation of performance appraisal tools.
Teachers’ hope for a Sh13 billion salary raise at the end of this month have been dashed after the labour court on Friday stopped further implementation of the Collective Bargaining Agreement.
More than 160,000 teachers holding administrative positions were set to receive new salaries in the second phase of the Sh54 billion 2017-2021 CBA signed between the Teachers Service Commission (TSC) and the Kenya National Union of Teachers in 2016.
Those who would have benefited are principals, chief principals, headteachers, their deputies and senior teachers.
“The commission will be forced to recall the enhanced July salaries that had been programmed to be paid as phase two of the CBA, since the court, by stopping the implementation of career guidelines, has effectively stopped the implementation of the CBA,” said TSC’s lead lawyer Timon Oyucho Saturday.
Also in jeopardy are plans by the TSC to fill at least 5,000 vacancies for headteachers, deputies and principals since the commission has been stopped from using the career progression guidelines.
“Appointment to headship and deputy headship under the CBAS must be competitive and must be based on performance. TSC is now unable to measure performance because it has been stopped from using the measurement tools,” said a senior TSC official who declined to be quoted since he is not authorized to speak to the media.
Senior TSC officials, internal and external lawyers were Saturrday holed up in a crisis meeting to map out how to implement the orders of the court and how to lay out the grounds to challenge the ruling. Mr Oyucho confirmed yesterday the commission will challenge the ruling tomorrow morning.
Justice Byram Ongaya on Friday set aside the career progression rules, which guide promotions, ruling that the TSC should carry the upgrades using the code of regulations for teachers and the relevant schemes of service. The rules were developed to guide teachers’ career growth, including training and promotion and replaced the schemes of service which were previously followed. The ruling, which could turn out to be a pyrrhic victory for Knut and its members, also stopped the implementation of performance appraisal tools, making it impossible to promote teachers on the basis of competitive interviews as laid out in the code of regulations.
“ 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
“As it stands, the TSC cannot measure quality of teachers since the instruments to gauge performance have been quashed by the court,” said Mr Oyucho. But contacted, Knut Secretary General Wilson Sossion rubbished TSC’s threat, saying it was premised on the wrong interpretation of the judgment.
“Nowhere in the judgment does it state that the CBA is dead. In fact we are asking TSC to move with speed and implement the court decision. The ruling makes it easier for the implementation of the CBA,” Mr Sossion told the Sunday Nation on phone. He said it is now upon the Commission to align the scheme of service with the provisions of the code of regulation for teachers and asked TSC not to shirk its duty.
He warned that any attempt to interfere with the CBA will be met with dire consequences from teachers, adding that the money was approved by Parliament.
“TSC should not look for excuses of not implementing the third phase of the CBA,” added Mr Sossion.
Justice Ongaya also rejected TSC’s position that teachers holding administrative positions should not be unionisable, ruling that they have a right to belong to a union as per the Labour Act. He also stopped the TSC from deploying elected union members outside their areas of representation.
“This means that school administrators can continue mobilising union activities against the interest of learners. This has always been a problem because administrators who are union officials cannot be expected to implement activities like performance appraisals which their union is opposed to,” said Mr Oyucho.
He added that though the TSC will implement the orders to the full, the same orders would enforce an already existing conflict of interest.
“Obviously, you cannot expect a headteacher to discipline a teacher who voted him in as a union official. Many union officials who are headteachers are just interested in protecting their union jobs at the expense of learners and proper school management, he added.
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. Mr Sossion on Friday praised the judgment and asked the TSC to quickly implement the court’s orders.
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 evaluation.
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, clearly, 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 Kenya Union of Post Primary Education Teachers (Kuppet), but who were not part of this case. However, their members will also be affected by the ruling.
Speaking in Bomet Saturday, Mr Sossion demanded that TSC should immediately implement the promotion of 50,000 teachers as directed by the Labour and Employment Relations Court.
“We are ready to immediately engage with TSC on the implementation of the promotions and other related issues as directed by the court. We want the teachers’ employer to set up a meeting as soon as Monday to discuss how to proceed with the matter,” said Mr Sossion.
“From here, we will not take any sideshows by the commission including the information we have of their contemplating to move to court. We do not want to run the teachers’ affairs through law courts any more as the issues have been settled through the labour court,” he added.
Additional reporting by Ouma Wanzala and Vitalis Kimutai