Kenya Union of Post Primary Education Teachers (KUPPET) v Teachers Service Commission & another [2015] KEELRC 464 (KLR)
The bottom line
#Kenya's Employment Court ruled that the Teachers Service Commission could not switch teachers' medical benefits to a new scheme without the union's consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court has jurisdiction over a constitutional petition touching on a procurement process already dealt with by the Public Procurement Administrative Review Board
The Court has jurisdiction; the petition is not an appeal from the Review Board and the Petitioner was not a party to the Review Board proceedings.
The Respondent and Interested Party argued the matter had been resolved under the PPDA and that the petition was an attempt to appeal that decision, ousting jurisdiction. The Court held that the petition was founded on constitutional provisions, not on the Review Board decision, and that section 12 of the Employment and Labour Relations Court Act confers jurisdiction including constitutional interpretation in employment matters. Availability of alternative remedies is not a bar.
Whether the directive to withdraw medical allowances and require contributions to the AON scheme without consent violated constitutional rights
Yes - violations of Articles 41, 36 and 47 were established.
The Court found that for unionised employees, any change to terms of service must receive the union's unequivocal consent. The Petitioner was not accorded meaningful consultation or the opportunity to approve the scheme as KNUT was. Interfering with an existing collective agreement to enforce a government directive without consent was an unfair labour practice, contrary to fair administrative action principles and an infringement of freedom of association.
Whether the Respondent's plea of hardship could justify the directive
No - hardship cannot trump constitutional rights.
Relying on the Canadian Supreme Court's undue-hardship accommodation analysis (Meiorin), the Court held that an employer relying on undue hardship must show what steps it took to accommodate the employees and that no further accommodation was possible. Here the medical allowances had not yet been deducted, so no undue hardship would arise from continuing to pay them; internal allocation modalities were within the Commission's capacity.
Whether the Article 40 property claim was established
No - the Article 40 claim failed for lack of evidence of alienation of property.
The Petitioner alleged that monthly deductions without acquiescence would amount to deprivation of property under Article 40. The Court found no evidence that any property of the Petitioner or its members had been alienated, since no deduction had yet been made. The protection of rights under Articles 41, 36 and 47 was held sufficient to address the concern.
Legal principles established
#- A change to terms and conditions of employment of unionised employees, including substitution of a benefit, requires the unequivocal consent and approval of the recognised union.
- The existence of alternative remedies (e.g. under the Public Procurement and Disposal Act) does not oust the ELRC's jurisdiction over constitutional claims in employment and labour relations.
- The principle of undue hardship must be sparingly applied in constitutional matters; the employer must demonstrate what it has done to accommodate employees before pleading undue hardship.
Court orders
#- 1.Declaration that the petitioner's rights under Articles 41, 36 and 47 of the Constitution were violated by the Respondent when it issued the directive to withdraw members' medical allowances and require contributions to the medical scheme procured from AON Minet without consent or approval
- 2.Quashing of the directive requiring the Petitioner's members to join, be party to, be members of, participate in, or contribute to the medical scheme from AON Minet
- 3.Prohibition order barring the Respondent from requiring the Petitioner's membership to join or contribute to a medical scheme procured from AON Minet without their consent and or approval
- 4.Each party to bear own costs save that the Petitioner shall meet 50% of the Interested Party's costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Post Primary Education Teachers (KUPPET) v Teachers Service Commission & another [2015] KEELRC 464 (KLR)", Case Analysis (2015). Petition No. 49 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/464/eng@2015-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.