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ELRCPartially AllowedCause 1587 of 2010· [2013] KEELRC 518 (KLR)

Osodo v Teachers Service Commission (Cause 1587 of 2010) [2013] KEELRC 518 (KLR)

Industrial Court of Kenya
30 January 2013
LNLinnet Ndolo
2,307 words in judgment
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The bottom line

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A Kenyan teacher won salary underpayment claims but lost her unfair termination case after skipping her own disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, a teacher employed by the Teachers Service Commission from 1983 and rising to Senior Principal Graduate/Approved Teacher, was granted paid study leave from January 2004 to December 2006 to pursue a PhD at the University of Sunderland. The leave was extended (initially without pay, later with three months' pay) to 30th November 2007, but she failed to report on duty on 1st December 2007. Her salary was stopped, she was interdicted on 13th March 2008, and after disciplinary proceedings she was dismissed for desertion of duty; her appeal, canvassed at a meeting with KNUT representation, failed. She claimed unfair termination, seeking reinstatement or twelve months' salary, plus extensive underpayments and unpaid salary and allowances totalling about Kshs. 2.5 million, blaming the Respondent for her failure to complete studies. The court held that the disciplinary procedure followed complied with the repealed TSC Act, the Code of Regulations, and principles akin to Section 41 of the Employment Act, and that the Claimant squandered the opportunity to be heard; the unfair termination claim failed. However, applying estoppel from the Respondent's letter of 20th August 2002 that her salary scale was personal to her, the court awarded Kshs. 311,089, Kshs. 144,600 and Kshs. 318,900 for underpayments, plus pension benefits. Claims for unpaid salary, allowances and 7 days' salary were dismissed for want of proof. Each party was ordered to bear its own costs.

Key legal issues

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01

Fairness and lawfulness of the termination of employment

Holding

Termination was justifiable and lawful; the Respondent followed the disciplinary procedure under the repealed TSC Act and Code of Regulations, akin to Section 41 of the Employment Act

Reasoning

The court found the Respondent extended study leave generously and was entitled to interdict and discipline the Claimant for desertion. The Claimant was informed of the allegations, invited to disciplinary proceedings, and had adequate opportunity to prepare and present her defence but declined to attend, prompting dismissal. The court applied Section 44(3) of the Employment Act on fundamental breach and relied on its prior decision in Jackson Butiya on internal grievance mechanisms.

p. 5
02

Entitlement to maintain personal salary scale after deployment

Holding

The Respondent was estopped from reducing the Claimant's salary scale because its letter of 20th August 2002 expressly stated her salary scale was personal to her

Reasoning

The Respondent argued that deployment from the Secretariat to Migori Teachers College automatically reverted the Claimant to teachers' salary scales. The court rejected this because the Respondent's own letter of 20th August 2002 expressly undertook that she would continue to serve on her existing salary scale with her incremental date preserved, making the scale personal to her.

p. 5
03

Proof of specific salary and allowance claims

Holding

Claims for unpaid salary for 2007 and 2008, allowances, and 7 days' salary failed for lack of proof

Reasoning

The court awarded only quantified underpayments it found established by the documents, deducting arrears already paid. Claims for unpaid salary for 1st January to 31st August 2007 and 1st January to 30th April 2008, unpaid allowances for January to August 2008, and 7 days' salary for 1st to 7th May 2008 were not proved and were dismissed.

p. 6

Legal principles established

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  • An employer who grants an employee a benefit personal to her and expressly undertakes to maintain her salary scale is estopped from changing that salary scale midstream
  • An employee facing disciplinary action cannot hold the employer to ransom by choosing when to attend disciplinary proceedings; an employee who spurns internal grievance mechanisms cannot later claim she was not heard
  • An employer may summarily dismiss an employee whose conduct amounts to fundamental breach of contractual obligations, provided the statutory disciplinary procedure is followed

Court orders

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  1. 1.Award of Kshs.311,089 being balance of salary underpayment for period between 1st July 2004 and 31st December 2005
  2. 2.Award of Kshs.144,600 being underpaid salary for period between 1st January and 31st May 2006
  3. 3.Award of Kshs.318,900 being underpaid salary for period between 1st September and 31st December 2007
  4. 4.Payment of earned pension benefits
  5. 5.Dismissal of the claims for salary for 1st January to 31st August 2007 and 1st January to 30th April 2008
  6. 6.Dismissal of claims for unpaid allowances for 1st January to 31st August 2008 and 7 days' salary for 1st May to 7th May 2008
  7. 7.Each party to bear their own costs
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment disputes (unfair termination and underpayment claims)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Osodo v Teachers Service Commission (Cause 1587 of 2010) [2013] KEELRC 518 (KLR)", Case Analysis (2013). Cause 1587 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/518/eng@2013-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.