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ELRCDismissedCause No. 142 of 2017· [2020] KEELRC 1598 (KLR)

Francis Kariuki Gatu v Teachers Service Commission (Cause 142 of 2017) [2020] KEELRC 1598 (KLR)

Employment and Labour Relations Court of Kenya
23 January 2020
MMM. Mbar
3,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan teacher who refused a transfer and skipped work lost his case because desertion, not unfair treatment, was what cost him his salary.

What this practically means

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Executive summary

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The claimant, a teacher employed by the Teachers Service Commission, alleged that after reporting examination irregularities while invigilating KCSE examinations at Al-Iman Secondary School in Garissa County in 2012 he received threats to his life. He sought transfer out of North-Eastern Kenya, which the respondent granted by posting him to Marsabit Boys High School. The claimant never reported, and was subsequently interdicted, subjected to disciplinary hearings, warned, interdicted again, suspended without pay for two months, and eventually posted to Ole Tipis Girls School in Narok, which he took up. He sought declarations that the interdiction, suspension and disciplinary process were unfair labour practices under Article 41 of the Constitution, payment of full salary from March 2013 to May 2015, a refund of May 2015 salary deductions, and costs. The respondent defended the disciplinary process, pleaded limitation under section 90 of the Employment Act, and justified the deductions as recovery of salary paid for days not worked. The court held the claim was filed within the three-year limitation period. On the merits, it found that the transfer was the employer's prerogative; the claimant's refusal to report to Marsabit amounted to desertion, his fears being unfounded since he never travelled there; the respondent accorded him due process; and no salary was payable for days not worked, the deductions being lawful under section 19(1)(c) of the Employment Act. The claim was dismissed with no orders as to costs, given the continuing employment relationship.

Key legal issues

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01

Limitation

Holding

The claim, filed 11 April 2017, is within the 3-year limitation period because the salary and deduction claims arose in May 2015

Reasoning

Section 90 of the Employment Act requires claims within 3 years of the cause of action. The claims for withheld salaries and May 2015 deductions arose in or about May 2015, so filing on 11 April 2017 was under 3 years. The claimant is within time and the objection to jurisdiction fails.

p. 4
02

Fairness of interdiction, suspension and disciplinary process

Holding

The disciplinary process was fair; the claimant deserted duty by refusing to report to postings and admitted the misconduct, so there was no unfair labour practice

Reasoning

The claimant requested transfer from North Eastern Kenya, which was allowed; he was posted to Marsabit Boys High School but never reported, and his whereabouts remained unknown. He admitted at the hearing of 19 February 2014 that he did not report. The perceived insecurity in Marsabit was unfounded as he never went there. The respondent followed due process, allowing hearings, warnings and fresh postings; desertion justified interdiction and suspension.

p. 5
03

Remedies - salary and deductions

Holding

No salary is due for periods of non-attendance; the May 2015 deductions for days not worked are lawful under section 19(1)(c) of the Employment Act

Reasoning

The claimant rendered no service from November 2012 until reporting to Ole Tipis Girls School, so no wages accrue for that period. Section 19(1)(c) permits deduction of up to one day's wages for each day of unauthorised absence. The overpayment deductions were for days not worked and are justified. Section 44(3) and (4)(a) would have allowed summary dismissal but the respondent instead applied due process.

p. 6

Legal principles established

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  • Employment claims must be filed within 3 years under section 90 of the Employment Act
  • Interdiction with clear reasons and findings of misconduct has good foundation
  • Transfer of an employee is the employer's prerogative; failure to report is desertion/insubordination
  • Employer may deduct wages for each day an employee absents himself without leave under section 19(1)(c) of the Employment Act

Court orders

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  1. 1.The claims made are found without merit and the suit is dismissed
  2. 2.No orders as to costs, each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 248
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 237
  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 44(3) and (4)(a)
  • Employment Act, 2007Section 19(1)(c)
  • Teachers Service Commission Act, Cap 212Section 6
  • Code of Regulations for Teachers, 2005Regulation 26
  • Occupational Health and Safety ActSection 14(i)

Cases cited (2)

  • Frederick Saundu versus Principal Namanga Mixed Secondary School & 2 others
    [2014] eKLR
  • Anne Wairimu Kimani versus Kenya Agricultural Livestock Research Organisation (KALRO)
    [2017] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court); defence raised limitation under section 90 of the Employment Act, 2007

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, "Francis Kariuki Gatu v Teachers Service Commission (Cause 142 of 2017) [2020] KEELRC 1598 (KLR)", Case Analysis (2020). Cause No. 142 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1598/eng@2020-01-29

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