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ELRCPartially AllowedCause No 4 of 2013· [2013] KEELRC 652 (KLR)

Sarah Nyanchama Ratemo-Kizito v Teachers Service Commission [2013] KEELRC 652 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 June 2013
3,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan teacher sacked for desertion won reinstatement and full back pay because her employer botched the disciplinary process.

What this practically means

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Executive summary

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The claimant, a teacher employed by the Teachers Service Commission on 17.10.2005 and deployed to Riabigutu PAG Secondary School, was dismissed by letter dated 2.07.2010 for alleged desertion of duty from 8.08.2009. She sought reinstatement with full salary and benefits from suspension to reinstatement, plus costs. The respondent denied the claim and counterclaimed for a refund of salary overpayment of Kshs.267,939/= paid from 8.08.2009 to 7.04.2010. The court framed four issues: due process, genuineness of the desertion allegation, unfairness of the termination, and remedies. On due process, the court found the claimant never received the interdiction letter; the 21 days to respond lapsed on 28.04.2010 before the letter was dispatched on 27.05.2010, denying her a fair chance of self-exculpation. The disciplinary hearing was also flawed: no colleague or union representative as envisaged under section 41 of the Employment Act, a misconceived finding that no statement of defence existed, and only the chairperson signed the proceedings. On substance, the claimant was entitled to be away during the August 2009 school holidays for school-based postgraduate studies, and the court believed her account that the Principal permitted her to report a week late into third term. The termination was therefore unfair both procedurally and substantively. The court ordered reinstatement effective 2.07.2010 with all salaries, allowances and benefits from that date, deployment within Uasin Gishu County by 1.08.2013, dismissed the counterclaim, and awarded the claimant costs.

Key legal issues

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01

Service of the interdiction letter and fair hearing

Holding

The claimant never received the interdiction letter; the 21 days to respond lapsed before dispatch, so the respondent failed to accord her a fair chance of self-defence

Reasoning

The respondent's own conduct at the disciplinary hearing (requiring the claimant to read and acknowledge the letter) showed she had not received it. The certificate of postage showed dispatch on 27.05.2010, long after the 21-day period lapsed on 28.04.2010. The respondent took no remedial measures such as issuing a belated interdiction letter or varying the response time. The claimant's written statement of 22.06.2010 was based on the hearing invitation, not the interdiction letter.

p. 4
02

Irregularities in the disciplinary hearing

Holding

The hearing was procedurally flawed: no colleague or union representative as envisaged in section 41 of the Employment Act; a misconceived finding that there was no statement of defence; and only the chairperson signed the proceedings

Reasoning

The claimant was not accorded a person of her choice or union representation under section 41 of the Employment Act, 2007. The finding that no statement of defence existed was demonstrably false since the statement was on record. Only the chairperson signed the record, so the other two commissioners failed to direct their minds to the case, making the committee's decision difficult to make sense of.

p. 4
03

Whether the claimant deserted duty

Holding

No genuine reason for termination: the claimant was entitled to be away during the August 2009 school holidays for school-based studies, and the court believed her account that she reported a week late with the Principal's permission

Reasoning

RW1 confirmed the claimant could attend school-based masters classes during holidays without study leave. RW2 did not testify she was scheduled for duties during the vacation, did not produce the daily attendance record, and did not deny receiving the study-leave decision. The respondent failed to account for how the application forms reached its office, and the court trusted the claimant's account of leaving them with RW2.

p. 5
04

Reinstatement as remedy

Holding

The claimant is entitled to reinstatement with effect from 2.07.2010, treating her as if employment had never been terminated, with all salaries and benefits from that date

Reasoning

Section 49(4) factors were considered: the claimant's willingness to resume, the respondent's and RW2's failures of statutory and public duty, her specialisation in biology and chemistry supporting gender parity in science teaching, her early years of service, and the contravention of Article 236(b) of the Constitution on due process for public officers.

p. 6

Legal principles established

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  • An employer fails to accord due process where the interdiction letter is dispatched late so that the period to respond lapses before dispatch, denying the employee a fair chance of self-defence
  • A disciplinary finding that there was no statement of defence when one was on record is a defective finding amounting to a miscarriage of justice
  • Under section 49(3)(a) of the Employment Act, reinstatement has the effect of treating the employee as if employment had never been terminated, entitling the employee to all salaries and benefits

Court orders

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  1. 1.Reinstatement of the claimant in the respondent's teaching services as a graduate teacher to teach biology and chemistry with effect from 2.07.2010
  2. 2.Respondent to pay the claimant all salaries, allowances and other due benefits with effect from 2.07.2010 by 1.09.2013, failing which interest on the principal amount payable from the date of judgment till full payment
  3. 3.Respondent to deploy and deliver to the claimant through her Advocates the deployment letter to any secondary school or relevant learning institution within Uasin Gishu County by 1.08.2013
  4. 4.Dismissal of the respondent's counterclaim
  5. 5.Respondent to pay costs of the case

Authorities

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Legislation

  • Employment Actsections 41, 43, 49(3)(a), 49(4)
  • Teachers Service Commission Act, Cap 212section 7(3)
  • Code of Regulations for TeachersRegulations 66(2)(e), 66(6)(b)(iii)
  • Constitution of KenyaArticle 236(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sarah Nyanchama Ratemo-Kizito v Teachers Service Commission [2013] KEELRC 652 (KLR)", Case Analysis (2013). Cause No 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/652/eng@2013-06-28

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