Mimba v Teachers Service Commission (Cause 762 of 2018) [2023] KEELRC 2645 (KLR)
The bottom line
#Kenya's Employment Court ruled that a teacher whose salary was stopped without any disciplinary hearing was constructively dismissed and won maximum compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed and from what date
The constructive dismissal occurred on 22nd May, 2013 when TSC posted a replacement teacher, without notice, show-cause or hearing, violating Sections 36, 41, 43 and 45 of the Employment Act
TSC stopped the claimant's salary in April 2009 over certificate verification concerns but never instituted disciplinary action or due process. The claimant continued teaching without pay until 22nd May 2013 when a replacement was posted and he was denied access to classes. The Court found this amounted to effective constructive termination without notice or hearing, breaching the contract of service and TSC's own disciplinary procedure and code of conduct, warranting maximum compensation given 31 years of service.
Whether the claimant is entitled to unpaid salary and up to which date
Arrear salary is awarded from 1st April 2009 to 22nd/23rd May 2013, the period services were clearly offered; no salary for 2013-2018
The Court found the claimant's continued teaching between April 2009 and May 2013 was corroborated by letters from head teachers, the District Staffing Officer's letter of 21st May 2013, and TSC's own witness confirming he worked up to December 2012 unpaid. For the period after the replacement was posted in May 2013, the claimant failed to prove he offered services, so no salary is due for that period despite his claim of reporting daily until resigning in 2018.
Whether the claimant is entitled to other reliefs
Maximum compensation of 12 months' salary, one month's notice pay, pension, annual increments and a Certificate of Service up to May 2018 are granted
Guided by precedent in Francis Kigalu and Hudson Kidaha Kisigwa, and considering the claimant's over 31 years of service and the inhuman treatment of denying salary without cause from 2009 to 2013, the Court awarded the maximum 12 months' compensation under Section 49(1)(c) and 4 of the Employment Act, notice pay, and a Certificate of Service up to the resignation in May 2018, with interest and costs.
Legal principles established
#- An employer who stops an employee's salary without instituting disciplinary action or any due process acts unprocedurally and unlawfully
- Posting a replacement teacher to take over an employee's duties amounts to effective constructive termination of employment, attracting compensation under Section 49 of the Employment Act
- Stopping an employee's salary while he continues to work is unjust, callous and inhuman, and the employer bears the burden of proving a valid reason
Court orders
#- 1.Payment of 12 months' salary in compensation for the unlawful and unfair termination calculated at the rate the claimant would have been earning as at 22nd May, 2013
- 2.Salary arrears due to the claimant from the month of April, 2009 to 22nd May, 2013
- 3.One month salary in lieu of notice
- 4.Payment of Annual Increments accrued to the claimant for the period April, 2009 to 22nd May, 2013
- 5.Payment of the claimant's Pension in terms of the Pension Laws and Regulations applicable to the claimant at the time of his resignation in May, 2018
- 6.Provision of Certificate of Service within 30 days of this judgment
- 7.Computation of the award to be done and filed by the respondent within 60 days of this judgment
- 8.Interest at Court rates from April, 2009 till payment in full in respect of arrear salary not paid and in respect of the notice pay and compensation from date of judgment till payment in full
- 9.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (employment relationship between teacher and Teachers Service Commission); Employment Act, Sections 36, 41, 43, 45 and 49
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mimba v Teachers Service Commission (Cause 762 of 2018) [2023] KEELRC 2645 (KLR)", Case Analysis (2023). Cause No 762 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2645/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.