Mutisya v Teachers Service Commission & another (Petition E159 of 2022) [2023] KEELRC 659 (KLR)
The bottom line
#Kenya's Employment Court quashed a TSC dismissal because the disciplinary panel was improperly chaired, and ordered the employee's full reinstatement with back pay.
What this practically means
#Executive summary
#Key legal issues
#Proper constitution of the disciplinary panel
The panel was improperly constituted because its chairperson was not a member of the commission as required by clause 119(2) of the TSC HR Manual, and its decisions were null and void
Clause 119(2) of the HR Manual required a disciplinary panel to comprise at least one member of the commission as chair. The 2nd respondent who chaired the panel was not a commission member. The Manual, made under section 47(2) of the TSC Act and section 5(1) of the Public Officer Ethics Act, was a statutory instrument whose provisions could not be altered internally by delegation to management without involving affected persons and Parliament under the Statutory Instruments Act, 2013.
Discrimination in sanction imposed
The petitioner was discriminated against because she was dismissed while other officers culpable in similar circumstances were only suspended or warned; the dismissal was excessive
The court applied the objective principle of proportionality in section 3 of the Employment and Labour Relations Court Act, 2011. The respondents' plea that each case was separate did not avail. Dismissing the claimant while retaining similarly or more culpable officers was discriminatory and excessive, amenable to being set aside.
Validity of the reason for dismissal
The admitted error amounted to a well-founded complaint under section 46 of the Employment Act, 2007 and dismissal on that basis was unfair
The petitioner admitted an error attributable to operational deficiencies such as work pressure and inadequate machines, amounting to a well-founded complaint envisaged in section 46. The respondent misconceived its case by shifting blame for not raising the matter earlier, since the petitioner had raised the complaint in her response and it was never addressed through the grievance management system before dismissal.
Article 35 access to information
The petitioner's right of access to information was not breached as she failed to pay for the documents and proceeded with the hearing without objection
The petitioner requested documents by letter dated May 6, 2020 and was advised by the respondents' letter dated May 9, 2022 to make the necessary payment per schedule 18 of the HR Manual but never complied. She also accepted to proceed with the disciplinary hearing without objecting or asking for the documents, so no breach of article 35 was established.
Reinstatement as remedy
The petitioner established exceptional grounds under section 49 of the Employment Act justifying reinstatement, and no impracticability was shown
Having found the panel proceedings null and void as ultra vires, the reason for dismissal unfair, and discrimination established, the court held the petitioner met the exceptional grounds per section 49 of the Act. The respondent established no circumstances showing impracticability of implementing reinstatement, which the court considered a sufficient remedy.
Legal principles established
#- Provisions of a HR Manual made under statutory provisions cannot be changed internally by the respondents without involving affected persons and Parliament as envisaged in the Statutory Instruments Act, 2013
- It is discriminatory to dismiss an employee while other officers culpable in similar circumstances are retained in service; sanctions must be proportionate per section 3 of the Employment and Labour Relations Court Act
- An error arising from a well-founded complaint or grievance under section 46 of the Employment Act deserves proper resolution rather than being a basis for dismissal
Court orders
#- 1.Declaration that the 2nd respondent lacked constitutional and lawful authority to chair the disciplinary panel and that the decision in proceedings signed under letter reference No TSC/600007/37 of May 31, 2022 is null and void
- 2.Declaration that the 2nd respondent acted ultra vires, unconstitutionally and illegally in signing the proceedings dated May 17, 2022, rendering them of no legal effect
- 3.Declaration that any actions or decisions pursuant to the illegal disciplinary proceedings dated May 17, 2022 are unconstitutional and illegal and void ab initio
- 4.Order of certiorari removing into the court for purposes of quashing the disciplinary proceedings dated May 17, 2022
- 5.Mandatory order directing the 1st respondent to reinstate the petitioner to her position of Senior Human Resource Officer at Headquarters, pay outstanding emoluments and benefits from May 2022 to date and thereafter, and deploy her upon reporting not later than 30 days
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition alleging breach of articles 35(1) and 50); Employment and Labour Relations Court Act, 2011; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mohammed v Teachers Service Commission & another (Employment and Labour Relations Petition E070 of 2023) [2024] KEELRC 2629 (KLR)[2024] KEELRC 2629 (KLR)24 Oct 2024applied
- Mwito v Teachers Service Commission & another (Petition E098 of 2022) [2023] KEELRC 3086 (KLR)[2023] KEELRC 3086 (KLR)28 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Mutisya v Teachers Service Commission & another (Petition E159 of 2022) [2023] KEELRC 659 (KLR)", Case Analysis (2023). Petition No E159 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/659/eng@2023-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.