Teachers Service Commission v Kenya National Union of Teachers; Commission (Interested Party) (Petition 23 of 2013) [2013] KEELRC 594 (KLR)
The bottom line
#A Kenyan court ruled teachers may lawfully strike since teaching isn't an essential service, but this strike was illegal because proper seven days' notice wasn't given.
What this practically means
#Executive summary
#Key legal issues
#Whether a legally recognizable dispute existed between the parties
Yes - a recognizable dispute exists over the rationalization of remuneration due to the Respondent's members under Legal Notice No. 534 of 1997 and Legal Notice Number 16 of 2003, which conciliation failed to resolve.
The Memorandum of Agreement of 3rd December 2002 required amendment of the Teachers Service Commission (Remuneration) Order in Legal Notice No. 534 of 1997 pursuant to the agreement, and the parties differed on the extent and import of that amendment as reflected in Legal Notice Number 16 of 2003. A conciliator appointed by the Minister for Labour was unable to resolve the dispute.
Whether teaching is an essential service precluding a lawful strike
No. Unlike the repealed Trade Disputes Act, the Labour Relations Act does not categorize teaching services as essential; the Fourth Schedule lists only six services which exclude teaching.
Section 81(1) of the Labour Relations Act defines essential services as those whose interruption would probably endanger the life of a person or the health of the population. The Fourth Schedule to the Act categorizes only six services as essential and teaching is not among them, so the Petitioner's argument had no legal basis.
Whether the strike complied with the requirements of Part X of the Labour Relations Act
The strike was unlawful: the Respondent did not issue the seven days' strike notice required by law, and the conciliation process never begun in earnest.
Section 76 of the Labour Relations Act conditions lawful participation in a strike on a qualifying trade dispute, unresolved conciliation, and seven days' written notice to the other parties and the Minister. On the circumstances of this strike, neither the notice nor effective conciliation was present.
Balancing the child's right to education against teachers' labour rights
Children suffer whenever teachers strike, but this cannot justify pushing teachers' rights underfoot; the employer and the Government must secure teachers' rights to safeguard children's rights.
The Court acknowledged the violation of children's right to free and compulsory basic education under Article 53 whenever teachers down their tools, but held that this fact cannot be used to trample the teachers' rights, placing responsibility on the employer and the Government.
Legal principles established
#- Teaching is not an essential service under the Labour Relations Act, and teachers may lawfully go on strike subject to compliance with Part X of the Act
- A strike is lawful only where the trade dispute concerns terms and conditions of employment or recognition, remains unresolved after conciliation, and seven days' written notice has been given
- The rights of the child to education cannot justify overriding teachers' rights; the employer and the Government must protect teachers' rights in order to safeguard children's rights
- A court may proceed to render substantive justice even where a duly served party does not appear or file a reply
Court orders
#- 1.The Petitioner and the Respondent directed to decamp from their hard line positions and proceed to the negotiating table in good faith, negotiations limited to rationalization of remuneration under Legal Notice No. 534 of 1997 and Legal Notice Number 16 of 2003, convened by the Cabinet Secretary for Labour
- 2.The parties directed to report the outcome of negotiations to the Court at 9.00 am on Monday, 15th July 2013
- 3.The teachers directed to report back to work by 8.00 am on Tuesday, 2nd July 2013; any strike beyond that time declared unprotected and illegal
- 4.The parties, their members, agents, servants and sympathizers restrained from commenting on the matter outside the confines of the negotiations ordered, to preserve industrial peace
- Jurisdiction invoked
- Dispute referred to the Court under Section 73 of the Labour Relations Act; first-instance industrial court jurisdiction over the trade dispute and related motion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Kenya National Union of Teachers; Commission (Interested Party) (Petition 23 of 2013) [2013] KEELRC 594 (KLR)", Case Analysis (2013). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/594/eng@2013-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.