Teachers Service Commission v Kenya National Union of Teachers (KNUT); Ministry of Labour & Social Protection (Interested Party) [2019] KEELRC 2553 (KLR)
The bottom line
#Kenya's employment court halted the 2019 teachers' strike, ruling it unlawful because the required conciliation process had not been genuinely completed first.
What this practically means
#Executive summary
#Key legal issues
#Legality of the strike notice under the Labour Relations Act and the collective agreement
The strike and strike notice were stayed because conciliation on the disputes had not been properly exhausted; both parties had failed to cooperate in good faith at conciliation at various stages
The court considered the history of bipartite negotiations and conciliation on the four grievances. It noted the applicant failed to cooperate at the February 2018 conciliation and the respondent failed to cooperate at the conciliation per the letter of 22.12.2018. Under sections 77 and 78 of the Labour Relations Act a strike is barred where conciliation was not undertaken in good faith. Balancing justice, the court stayed the strike and directed the parties to conciliation on 03.01.2019.
Transfer of teachers and branch union officials (delocalisation)
Pending agreement on transfers of union officials, such officials are transferable only within their branch's geographic limits; transfers outside those limits set aside; appeals/reviews of the 3,094 transfers to be decided by 15.02.2019 without victimisation
The parties agreed transfers could affect branch union officials and that there was no agreement governing such transfers consistent with union management and activities. The applicant submitted there would be no immediate prejudice if union officials were transferred within branch geographic limits. The court accordingly stayed and set aside out-of-branch transfers and required timely determination of transfer appeals and reviews.
Career Progression Guidelines, performance management tools and Teacher Professional Development modules
Circular No. 7 of 2018 abolishing the three schemes of service stayed; performance management tools not to be implemented unilaterally; parties to negotiate TPD modules and performance instruments per clauses 11 and 12 of the collective agreement
Section 35(2) of the Teachers Service Commission Act requires career progression and professional development to be prescribed by regulations, which the applicant must make in line with clause 12 of the collective agreement. The parties agreed performance management procedures must be participatory under clause 11, so no tools may be implemented unilaterally. The guidelines were not part of the 2017/2021 collective agreement and were issued without involvement of the respondent.
Legal principles established
#- A strike is prohibited where the trade dispute was not referred for conciliation as required by the Labour Relations Act or the applicable collective agreement
- A party who fails to attend conciliation in good faith cannot obtain relief under section 77 of the Labour Relations Act
- Registered teachers' career progression and professional development must be prescribed by regulations made by the Teachers Service Commission
Court orders
#- 1.Stay of the taking effect of the strike notice Ref. No. KNUT/LAB/52/59/2018 dated 19.12.2018 and strike circular No. KNUT/CIRC/122/41/2018 dated 30.12.2018, and restraint of the respondent from implementing any strike on the 4 grievances pending hearing and determination of the petition; teachers to continue on duty uninterrupted
- 2.The applicant and respondent to attend conciliation proceedings before the Conciliation Committee on 03.01.2019 at 9.00 a.m. at the Ministry of Labour and Social Protection, Nairobi, led by the applicant's Chairperson and Secretary and the respondent's Secretary General and Chairperson
- 3.The applicant to determine appeals or applications for review of transfers of the 3,094 transferred teachers not later than 15.02.2019, with no victimisation, harassment or intimidation of teachers who appeal or seek review
- 4.Stay of decisions transferring branch union officials beyond the geographic limits of their branches; such transfers set aside pending agreement on transfer of union officials
- 5.Stay of implementation of Career Progression Guidelines (circular No. 7 of 2018, Ref. No. TSC/ADM/192A/VOL.IX/37 of 02.05.2018) pending agreement and enactment
- 6.Promotions to be made per the collective agreement and prevailing or future regulations made under section 35(2) of the Teachers Service Commission Act, 2012
- 7.Parties to engage per clause 12 of the collective agreement on appropriate Teachers Professional Development (TPD) Modules and policy
- 8.Parties to engage per clause 11 of the collective agreement on performance management tools, instruments, processes and procedures, to be implemented only after agreement and promulgation of relevant regulatory provisions
- 9.Mention on 17.01.2019 at 9.00 a.m. to report on progress of conciliation and for further directions
- 10.Costs of the application in the cause
- Jurisdiction invoked
- Articles 24, 41, 53 and 159 of the Constitution of Kenya 2010; sections 12(1)(b), 12(3)(i), (ii), (iv) and (viii) of the Employment and Labour Relations Court Act; sections 77(1)(a)(b) and (3) and the 4th Schedule of the Labour Relations Act; rules 18(4), (5), (6) and 19 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Kenya National Union of Teachers (KNUT); Ministry of Labour & Social Protection (Interested Party) [2019] KEELRC 2553 (KLR)", Case Analysis (2019). Petition No. 1 of 2019 (with Notice of Motion dated 31.12.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2553/eng@2019-01-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.