Cliff Omanga Ontita v Teachers Service Commission [2015] KEELRC 1536 (KLR)

Section 11(1) of the repealed Act limited the Tribunal to appeals under Sections 7(5) and 10(4). The claimant's appeal was titled as an appeal against removal from the TSC register, indicating no appeal was lodged against dismissal from employment. Reinstatement to employment is a contractual matter outside the Tribunal's statutory remit, so its direction that the claimant be restored to his pre-interdiction status could not extend to employment.

The claim was to enforce the Tribunal's decision, so time ran from communication of that decision on 8th February 2011. The three-year period under Section 90 of the Employment Act expired in February 2014 and the suit filed on 27th February 2014 was 19 days late. The respondent also invoked Section 3(2) of the Public Authorities Limitation Act, but the court held that statute inapplicable where inconsistent with the Employment Act.

The court reiterated its settled position that limitation provisions less favourable than Section 90 of the Employment Act are discriminatory and unconstitutional, since the Employment Act binds the government and provides minimum terms. Employees of government and local authorities cannot be treated less favourably than other employees in respect of the right to sue over employment.