Kanene v Teachers Service Commission (Employment and Labour Relations Petition E010 of 2023) [2024] KEELRC 130 (KLR)
The bottom line
#Kenya's employment court upheld a teacher's dismissal, ruling the TSC followed fair procedure and had valid reasons for the termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was grounded on valid and fair reasons
The court held the reason for dismissal (immoral behavior and infamous conduct) was valid; the employer genuinely believed an illicit relationship existed based on the love letter, investigation report and witness testimony.
Applying section 43 of the Employment Act, the court held the employer must prove matters it genuinely believed at termination. Although the love letter was not produced as an exhibit, several teachers saw it; its contents, the surrounding anxiety, the theft of the letter and the taking away of the student's statement indicated an illicit relationship. The court found any reasonable employer would have dismissed the petitioner.
Whether fair procedure was followed
Fair procedure was followed: the petitioner was invited to investigatory hearing, allowed to cross-examine witnesses, heard by the disciplinary committee and by a different review panel.
The court applied section 41 of the Employment Act and Regulations 146 and 149 of CORT. The petitioner attended the county investigatory hearing, cross-examined witnesses, gave his statement, was heard by the disciplinary committee on 2nd February 2021 and his appeal/review was heard by a different panel. No objection was raised at the proceedings.
Whether Regulation 148(1) of CORT (denial of half salary for interdicted teachers accused of immoral behavior) is unconstitutional under Article 27
The court declined to invalidate the regulation; the petitioner failed to prove the differential treatment fell within Article 27's forbidden grounds, and the issue was left to collective bargaining.
The court acknowledged the regulation exposes teachers interdicted for some offences to different treatment regarding half salary, but held it was part of the petitioner's terms of service which he never challenged earlier. Without the applicable CBA in evidence, adjudicating would risk rewriting the parties' contract; the matter was left to trade union negotiations.
Legal principles established
#- An employer need only prove the reasons it genuinely believed to exist at the time of termination under section 43 of the Employment Act
- The court will not rewrite contractual terms and conditions of service where the applicable CBA is not produced in court
Court orders
#- 1.The suit (petition) is dismissed with costs to the respondent
- Jurisdiction invoked
- Constitution of Kenya, Articles 27, 50, 10 and 237; TSC Act No. 20 of 2012 (petitions jurisdiction of ELRC over employment and constitutional violations)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanene v Teachers Service Commission (Employment and Labour Relations Petition E010 of 2023) [2024] KEELRC 130 (KLR)", Case Analysis (2024). Petition (ELRC, Nyeri) - Petitioner v Respondent. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/130/eng@2024-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.