TEACHERS SERVICE COMMISSION V KENYA NATIONAL UNION OF TEACHERS (KNUT) & ANOTHER [2012] KEELRC 166 (KLR)
The bottom line
#Kenya's Industrial Court declared the 2012 teachers' strikes illegal because the unions skipped mandatory conciliation, but also faulted the TSC for refusing to negotiate.
What this practically means
#Executive summary
#Key legal issues
#Whether the strike called by the Respondents was protected under the Labour Relations Act
The strikes were unprotected because the parties did not exhaust conciliation and the notices did not comply with section 76(b) and (c) and section 78(1)(e) of the Labour Relations Act.
The court set out sections 76, 78 and 79 of the Labour Relations Act, which require that a trade dispute be unresolved after conciliation and that seven days' written notice be given to the other parties and the Minister. Both strike notices showed that no conciliation had taken place, either under section 62 of the Act or under the internal machinery in the recognition agreements. Without failed conciliation, the notices could not found a protected strike under section 79.
Whether the Claimant was entitled to the prayers sought
The court extended the interim restraint against unprotected strikes but found the Claimant undeserving of full equitable relief, directing conciliation instead.
The 2nd Respondent demonstrated repeated attempts to engage the Claimant on salary disparities, including proposals in May 2012 and correspondence with the Salaries and Remuneration Commission, to which the Claimant never responded until after the strike notices. The court held that an injunction is an equitable remedy and the Claimant's conduct - ignoring the union's overtures and provoking the strike notice - disentitled it from the equitable reliefs sought. However, since the strikes were themselves unprotected, the interim restraint orders were extended.
Whether the Respondents contravened Article 53 of the Constitution
No contravention established; children's rights under Article 53 do not override workers' rights under Article 41, and the Claimant itself bore responsibility for averting the infringement.
The court accepted the 2nd Respondent's submission that the right of children to free and compulsory basic education under Article 53 does not override the teachers' Article 41 right to strike. The Claimant ignored all warnings of industrial action and did nothing to forestall a strike it knew was likely, so the responsibility for protecting both sets of rights lay with it. The court noted it was not dealing with a complaint brought by children whose rights had been infringed.
Legal principles established
#- A strike is protected only if it complies with sections 76, 77, 78, 79 and 80 of the Labour Relations Act, including that the dispute is unresolved after conciliation and seven days' written notice is given to the other parties and the Minister.
- The right of children to basic education under Article 53 does not override workers' rights under Article 41 of the Constitution.
- Equitable reliefs such as injunctions are granted only to a party that has conducted itself equitably.
Court orders
#- 1.The strikes called by the Respondents in their respective notices dated 20th and 27th August 2012 are declared unprotected having failed to comply with section 76 of the Labour Relations Act
- 2.The interim orders of 31st August 2012 restraining the Respondents from taking part in, calling, instigating or inciting others to take part in an unprotected strike are extended until final determination of the dispute
- 3.The parties are directed to immediately engage in conciliation in good faith with a view to solving the dispute
- 4.No employee shall be victimized for taking part in the strike provided they report back to work immediately; no protection will extend to any employee continuing in the unprotected strike after the date of the order
- 5.Any party may move the court for hearing of the substantive issues should conciliation fail
- 6.No orders for costs
- Jurisdiction invoked
- Sections 77 and 80(3) of the Labour Relations Act and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TEACHERS SERVICE COMMISSION V KENYA NATIONAL UNION OF TEACHERS (KNUT) & ANOTHER [2012] KEELRC 166 (KLR)", Case Analysis (2012). Notice of Motion dated 30th August 2012 (filed 31st August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/166/eng@2012-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.