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ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 4120 (KLR)

Cosmas Obiero v Teachers Service Commission & another (Cause 294 of 2018) [2022] KEELRC 4120 (KLR)

Employment and Labour Relations Court
28 September 2022
1,738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a teacher's dismissal unfair because the TSC changed key dates and never decided his appeal.

What this practically means

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Executive summary

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Peter Cosmas Obiero, a teacher employed by the Teachers Service Commission from May 1, 1982, was interdicted in July 2015 over alleged immoral behaviour, interdicted a second time with an altered date of the alleged incident, and dismissed by letter dated June 16, 2016 after a disciplinary hearing on April 26, 2016. His internal appeal, for which he paid a Kshs 2,000 deposit, was never determined. He sued seeking declarations of unfair and unlawful dismissal, pension benefits, payment of withheld salaries and allowances, twelve months' compensation under section 49(1)(c) of the Employment Act, special damages of Kshs 302,000, constitutional and aggravated damages, a certificate of service, interest and costs. The court found the disciplinary process procedurally flawed because the commission was not certain of the particulars of the allegations, altering the incident date while proceeding to hear and dismiss him, which deprived him of an effective defence. The failure to determine his appeal within a reasonable time further undermined fairness. On substantive fairness, the court held that the commission failed to discharge the burden under sections 43 and 45 of the Employment Act, noting the unexplained variance in dates, the absence of the letter author as a witness, and a High Court finding that there was no evidence placing the claimant at the scene. The dismissal was declared unfair. The claimant was awarded pension benefits effective July 1, 2016, compensation equivalent to his salary from April 26, 2016 to June 30, 2016, refund of the Kshs 2,000 appeal deposit, a certificate of service within 21 days, interest at court rates from the date of judgment, and costs. The claim for legal expenses incurred in the criminal proceedings was refused for want of jurisdiction, and no constitutional or exemplary damages were awarded.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

The dismissal was procedurally unfair because the commission issued two interdiction letters with inconsistent dates of the alleged incident and heard the claimant on a date it had itself changed

Reasoning

The first interdiction letter gave July 2, 2015 as the date of the alleged incident; the second letter changed it to July 27, 2015. The disciplinary hearing minutes showed the hearing was on the July 2, 2015 incident. The court found the commission uncertain of the particulars, which deprived the claimant of the ability to defend himself effectively and tainted the process.

p. 3
02

Handling of the internal appeal

Holding

The failure to determine the claimant's appeal within a reasonable time, despite requiring him to pay a deposit, contributed to the unfairness

Reasoning

The code of regulations provided for an appeal; the claimant exercised the right and paid the requested deposit, but the appeal remained undetermined over a year later when he moved to court. Applying Gwynedd Council v Barratt, the court held that failure to meet its own standards negatively affected overall fairness.

p. 4
03

Substantive fairness - burden of proof on the employer

Holding

The commission failed to discharge the burden under sections 43 and 45 of proving valid and fair reasons for dismissal

Reasoning

Only one witness testified and produced documents; the inconsistent dates in the interdiction letters were not satisfactorily explained and the author of the letters was not called. Further, the High Court in Siaya Criminal Appeal No 188 of 2016 had found no evidence that the claimant was at the scene of the alleged incident.

p. 4
04

Jurisdiction to award legal expenses incurred in a criminal trial as special damages

Holding

The court held it had no jurisdiction to award damages for legal costs of defending criminal charges

Reasoning

The claimant sought Kshs 300,000 as legal costs of defending himself in criminal charges and appeal. The court declined, holding the ELRC lacks jurisdiction to make or award such damages, and instead limited recovery to the Kshs 2,000 appeal deposit refund.

p. 4

Legal principles established

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  • Inconsistency in the particulars of allegations against an employee, such as altered dates of the alleged incident, taints the procedural propriety of the disciplinary process because the employee must be enabled to defend himself effectively
  • Where an employer's internal procedures provide for an appeal, the handling and determination of that appeal is one of the elements the court considers in assessing overall fairness of the disciplinary process
  • Failure by an employer to meet the standards it set for itself (including determining an appeal within a reasonable time) negatively affects the overall fairness of the disciplinary hearing
  • Sections 43 and 45 of the Employment Act place the burden on the employer to prove that the reasons for dismissal were valid and fair, a burden not discharged where the allegation dates are unexplained and key witnesses are not called

Court orders

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  1. 1.A declaration that the dismissal of the claimant by the 1st respondent through a letter Ref: TSC No 14718/173 dated June 16, 2016 was unfair
  2. 2.A declaration that the claimant is entitled to all pension benefits upon retirement effective from July 1, 2016, and to be immediately paid the pension benefits under the Pensions Act, Chapter 189 of the Laws of Kenya
  3. 3.The respondent to pay compensation equivalent to claimant's salary from April 26, 2016 to June 30, 2016
  4. 4.Refund of Kshs 2,000/- appeal deposit
  5. 5.The respondent to issue a certificate of service within 21 days
  6. 6.Interest on the decretal sums at court rates from the date of judgment
  7. 7.The claimant to have costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Employment Act, 2007Sections 35(1)(c), 43, 45, 49(1)(c), 51
  • Teachers Service Commission Act, 2012Not specified
  • Teachers Service Code of Regulations for Teachers, 2015Not specified
  • Pensions ActChapter 189 of the Laws of Kenya

Cases cited (2)

  • Gwynedd council v Barrat & Ar
    (2021) EWCA Civ 1322
  • Peter Onyango Obiero v R
    Siaya Criminal Appeal No 188 of 2016
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010 (fair labour relations and fair administrative action)

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, "Cosmas Obiero v Teachers Service Commission & another (Cause 294 of 2018) [2022] KEELRC 4120 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4120/eng@2022-09-28

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