Mutiso v Teachers Service Commission (Cause 570 of 2019) [2023] KEELRC 610 (KLR)
The bottom line
#Even when an employer has a valid reason to fire a teacher, skipping fair hearing steps makes the dismissal unlawful — and the employee gets paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason (substantive justification) to terminate the Claimant's employment
Termination was substantively justifiable on the ground of an intimate relationship between the Claimant, a Principal, and his pupil Pauline Kamene; the incitement charge was not established.
The court examined the complaint by the Centre for Human Rights and Civic Education, the BOM minutes, the investigatory assessment by education officers, Pauline Kamene's adopted statement and her cross-examination, the audio recording played to the panel, and the Claimant's failure to rebut. On a balance of probabilities the Respondent proved the relationship under Section 43(2) of the Employment Act. The incitement allegation failed for want of cogent evidence of the Claimant's active involvement.
Whether the termination followed a fair procedure under Section 41 of the Employment Act
The procedure was unfair because the Claimant was never notified of his right to be accompanied by a colleague or union official, and he had no witness at the County Disciplinary Panel where he could not cross-examine the six witnesses.
Section 41 is mandatory and requires explanation of grounds, entitlement to accompaniment and consideration of representations. None of the invitation letters intimated the right to be accompanied. Given the gravity of the allegations, this omission implicated the Claimant's right to be heard and denied an otherwise proper process the final mark of fairness, following Postal Corporation of Kenya v Andrew K. Tanui.
Whether the Claimant was entitled to reinstatement
Reinstatement was unavailable as the court lacks jurisdiction to order it more than three years after dismissal.
Section 12(3)(vii) of the Employment and Labour Relations Court Act, 2011 limits reinstatement orders to within three years of dismissal. The dismissal took effect on 5th February 2018, almost four years before judgment. Reinstatement is also discretionary, not automatic, per Maraga JA in Kenya Airways Ltd v Aviation and Allied Workers Union.
What terminal dues and compensation the Claimant was entitled to
Unpaid salary during interdiction, two months' salary as compensation, and one month's pay in lieu of notice were awarded; damages for wrongful dismissal and service pay were disallowed.
Because termination was procedurally unfair, unpaid salary from interdiction (23rd November 2015) to termination (5th February 2018) was payable, though the interdiction was unduly long and part of the delay was caused by the Claimant's own court applications. Compensation was moderated to two months' salary given the valid reason, breach of trust, and the Claimant's long service. Notice pay was awarded as no requisite notice was given. Service pay and damages failed for want of evidence.
Legal principles established
#- For a termination of employment to pass as lawful, it must be both substantively justifiable and procedurally fair
- An employee facing disciplinary charges must be informed of the entitlement to be accompanied by a colleague or union official and to call witnesses; failure to do so renders the hearing procedurally unfair
- Keeping an employee on interdiction for an inordinately long and indefinite period is an unfair labour practice
- In sexual immorality cases involving teachers and pupils, general and circumstantial evidence suffices; proof beyond eye-witness or medical evidence is not required
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.Unpaid salary from November 2015 to February 2018
- 3.Equivalent of two months' salary as compensation for unfair termination
- 4.One month's salary in lieu of notice (Kshs.85,641.00)
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court Act, 2011 (Section 12(3)(vii) invoked on reinstatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutiso v Teachers Service Commission (Cause 570 of 2019) [2023] KEELRC 610 (KLR)", Case Analysis (2023). Memorandum of Claim filed 28th August 2019 (ELRCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/610/eng@2023-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.