[2024] KEELRC 1225 (KLR)

Mberia v Teachers Service Commission (Cause 390 of 2019) [2024] KEELRC 1225 (KLR) (7 May 2024) (Judgment)

Neutral citation: [2024] KEELRC 1225 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 390 of 2019

Nzioki wa Makau, J

May 7, 2024

Between

Mary Chemindil Mberia

Claimant

and

Teachers Service Commission

Respondent

Judgment

1. The Claimant filed this suit against the Respondent Commission in April 2019 and through an Amended Memorandum of Claim dated 17th July 2019, prays for Judgment against the Respondent for:a.A declaration that the dismissal of the Claimant from employment by the Respondent was wrongful, unfair and unlawful.b.That an order do issue compelling the Respondent to compensate the Claimant and pay the Claimant’s terminal dues as tabulated below;i.Payment in lieu of notice – Kshs 195,248/-ii.Unpaid annual leave – Kshs 100,000/-iii.Unpaid salary for the seven months under interdiction – Kshs 798,868/-iv.Employee’s Provident Fund contributions – Kshs 1,308,500. 30v.Employer’s Provident Fund contributions – Kshs 2,616,982. 60vi.Severance Pay @15 days for 26 years of service – Kshs 2,719,525. 71vii.NSSF contribution for both employer and employee – Kshs 130,000/-viii.Expected dues for the remaining 10 years of service from date of termination up to expected retirement age – Kshs 21,173,520/-ix.Compensation for unlawful termination 12 months x 195,248/- = Kshs 2,342,976/-c.Costs of the suit be provided for.d.Interest on the sums in (b) above from date of filing suit.

2. The Claimant is a Graduate Teacher enrolled under Teachers Service Commission (TSC) No 324493. She averred that the Respondent employed her on 2nd March 1992 through an employment letter dated 14th February 1992 and her first posting was at Msambweni Secondary School. That she rose through several ranks and was promoted to different secretariat and administrative functions within the Respondent Commission, including District Staffing Officer in Kilindini District and Senior Staffing Officer at Nairobi City Education Office. That vide a letter dated 7th November 2011, she was promoted to the grade of Assistant Deputy Director, TSC Scale 13 with effect from 1st July 2011 and served in the said position until she was dismissed from employment on 12th November 2018. At the time of termination of her employment, the Claimant earned a gross salary of Kshs 195,248/-. The Claimant’s case is that she received a letter dated 31st July 2018 requiring her to show cause why disciplinary action should not be taken against her on allegation that she irregularly transferred teachers to Teachers Training Colleges (TTCs) and to which she responded by a letter dated 6th August 2018. She averred that on 20th September 2018, she received an Interdiction Letter dated 4th September 2018 from the Respondent’s Chief Executive through the Director-Staffing TSC Headquarters Nairobi, instead of the Director Human Resource. That the said Interdiction Letter alleged she had breached the HR Policies for TSC Secretariat Staff and that the transfer of 11 teachers was contrary to the TSC Policies and Transfer Guidelines. She responded to the allegations set out in the Interdiction Letter in a letter dated 20th September 2018. According to the Claimant, it was within her duties, powers and mandate to transfer teachers and that the Respondent unlawfully, irregularly and illegally dismissed her from employment without conducting proper investigations into the matter. Furthermore, that the regulation under which she was interdicted and charged did not disclose any offence in view of the charges levelled against her under clause 112(3)(g) of the Respondent’s HR Manual and that the dismissal was thus also unfair. The Claimant further averred that the Respondent did not give her an opportunity to have a representative in the disciplinary meeting as provided in law and that the Respondent failed to follow the disciplinary and termination procedures laid down in Statute, the Commission's Regulations and the HR Policies Manual for Secretariat Staff. She also contended that the Disciplinary Panel that heard her case was not properly constituted and asserted that she thus seeks payment of her terminal dues as tabulated hereinabove.

Respondent’s Case 3. The Respondent filed a Memorandum of Response and Counter-Claim averred that the Claimant last served within its Secretariat as a Staffing Officer with the designation of Assistant Director Staffing in charge of TTCs. That the Claimant’s duties were subject to the Respondent’s Schemes of Service for Secretariat Staff and included receiving requests for transfers, preparing requests merit list for approval, processing letters for successful applicants, and notifying unsuccessful applicants. It further averred that in her capacity as a staffing officer, the Claimant's duty was therefore to sign transfer letters for teachers serving in various TTCs but which transfers could only be effected after approval by the relevant staffing committees, a fact that was well within the Claimant's knowledge. That as such, the Claimant lacked any mandate to unilaterally deploy a teacher from the TTC to the Secretariat, whose staff operate on terms different to those of classroom teachers and whose recruitment and deployment is guided by the Respondent Recruitment and Deployment of Secretariat Staff Policy.

4. The Respondent averred that the Claimant was promoted to its Secretariat sometime in 2008 but she proceeded to effect unilateral and irregular teacher transfers. That consequently, the Claimant was issued a Memo dated 30th August 2017 cautioning her against continuing to breach the transfer procedures for teachers to and from TTCs. That however, the Claimant persisted in unilaterally authorising the transfer of teachers leading to disciplinary proceedings against her including a charge on misconduct and insubordination to her supervisor, issuance of an Interdiction Letter, and invitation to a disciplinary hearing of 12th November 2018 vide a letter dated 15th October 2018. The Respondent averred that the Claimant was informed of the option to bring along a witness of her choice to the disciplinary hearing and she chose to attend the session alone. It argued that the Panel that heard the Claimant was constituted in accordance with the Respondent's HR Manual for Secretariat Staff. That during the Panel hearing, the Claimant conceded to unilaterally transferring teachers on several occasions without Committee approval, which led to her summary dismissal from the Respondent's employ. The Respondent thus denies any breach of contract or the law in summarily dismissing the Claimant and contends that its actions were lawful, justified and fair in the circumstances. It further averred that throughout the period of the Claimant's interdiction, her statutory deductions inclusive of NSSF were duly remitted to the relevant bodies. Moreover, that it was the Claimant's prerogative to instruct MINET Insurance, who independently managed the contributory pension scheme in which the Claimant was a member, on how to handle the same. The Respondent asserted that as at the date of her exit, the Claimant was entitled to 20 leave days and half salary for November 2018 and that the prayers she seeks herein are unmerited and ought to be dismissed.

5. In addition, the Respondent averred in its Counter-Claim that following the Claimant's dismissal effective 12th November 2018, any such half salary she used to receive ought to have been stopped. That however owing to an inadvertent omission on the part of some Secretariat Staff handling the Claimant's personal file post dismissal, the Claimant was maintained in the Pay Roll erroneously and irregularly until 31st August 2019 when the anomaly was discovered and the unjustified payment immediately halted. The Respondent argued that the said payments being exchequer funds, the Claimant received an illegal benefit for which the Respondent thus counterclaims in the sum of Kshs 846,776. 25 as an unjustified overpayment, as tabulated in the Counter-Claim before Court. The Respondent asserted that it repaid this sum despite issuing the Claimant a notice of overpayment and that her failure to repay the same amounts to breach of her contract and the law, for which she is liable. It therefore prays for judgment against the Claimant for the said sum of Kshs 846,776. 25 as salary overpayment, costs of this suit, interest and any further or other relief this Court may deem just and fit to grant.

6. The Claimant's rejoinder in a Reply dated 31st January 2020 was that under clause 3 of the Scheme of Service for TSC Secretariat Staff, the duties of an Assistant Deputy Director entails teacher registration, recruitment and employment, assignment to public institutions, promotions and transfers, and disciplinary among other duties. That clause 119(2) of the Respondent's HR Manual for Secretariat Staff provides for constitution of the disciplinary panel and does not provide leeway for a panel member to act in two membership positions in the same disciplinary panel; where one acts as one of the two directors as per clause 119(2)(b) and also as an officer representing the Commission Secretary who shall record the proceedings of the hearing. In response to the Counter-Claim, the Claimant the denied the allegations of overpayment and averred that the Respondent owes her terminal benefits and dues for work done. She thus refuted the claims that she received illegal benefit and asserted that the Respondent did not raise any course of action against her in the Counter-Claim. The Claimant prays that the Respondent's Memorandum of Response and Counter-Claim be struck out with costs and judgment entered for the Claimant as prayed in her Claim.

Evidence 7. The Claimant asserted under cross-examination that she indeed transferred teachers but did not deploy the said teachers to the Secretariat. She reasoned that the TTCs did not have Staffing Committees even for her predecessors and that the transfers were therefore within her mandate. Furthermore, the Staffing Committee applied to Secondary and Primary Schools. When referred to an entry number 2 at page 81 of the Respondent's Bundle for one Sari Dolly, the Claimant stated that Ms. Dolly was transferred to Migori TTC as recommended and noted that the same was a Staffing Committee for Post Primary/Secondary. She explained that the same was different because such Committees recommend or approve surplus teachers to be transferred to TTCs, which is not applicable to TTCs. She maintained that the practice used to favour Secondary teachers to TTCs. The Claimant denied having been cautioned about effecting transfers and stated that she did not receive the said Memo on the same as produced by the Respondent. She testified that she did not get the dismissal letter in a month but got it in April 2019. That in June 2023, she got the letter stating she was overpaid and stated that the same was not her fault since the Respondent was the one to stop the half-salary payment. In re-examination, the Claimant stated that the payment by AON Minet was for 10 years less 16 years.

8. The Respondent's witness, Ms. Pamela Achieng Ochieng, testified that the Claimant has no document showing that she had authority to transfer teachers. That the correct disciplinary procedure was followed in terminating the Claimant and that the Respondent seeks the overpayments made to the Claimant from November 2018 to August 2019. Under cross-examination, she explained that a matrix of the staff is done with awareness to why the transfer is done and that the policy on the same allows the transfer. She stated that the Claimant's employment was terminated in her absence as she could not be reached and questioned how the Claimant knew that her personal file could not be traced. She fronted that the Claimant should have been the one to raise the issue of overpayment as an officer of integrity and that since money was wrongly paid to her, she should pay it back to the exchequer.

Claimant's Submissions 9. According to the Claimant, no one in the history of the Respondent had ever been dismissed for irregular transfers and that the practice has been to transfer the employee to another department. That in the circumstances, her dismissal was severe, punitive and malicious considering she was a first-time offender and that practice dictated that first time offenders are dismissed for only two reasons: a case of forgery or carnal knowledge of a minor. The Claimant submitted that she was never granted a fair hearing because she was interdicted in absentia, when on annual leave that her former employer had approved. That the excuse that she could not be reached is malicious and as per discipline procedures and rules, a person is invited three (3) times before their fate can be determined in absentia. The Claimant argued that she cannot be subjected to double punishment of dismissal and reimbursement of overpaid salary, which officers of the Commission that hoarded her file should shoulder. That without prejudice to the foregoing, the Respondent's regulations provide that dismissal decisions should be communicated within 28 days of the disciplinary hearing yet communication in her case took five (5) months. It was the Claimant's submission that section 43 of the Employment Act of 2007 provides for proof for termination by the employer. That it was unfortunate that she was never served with any notice on her interdiction as required by law and instead, the Respondent sent the final letter of termination based on the alleged wrongful interdiction. That the Respondent kept her in suspense for about one (1) year and only wrote to her thereafter communicating the dismissal. That the Respondent had failed to prove that it followed the laid down procedures of law before terminating her employment and this Court thus ought to find in favour of the Claimant, that her employment was terminated unfairly. That the Court ought to also find that as per her job description, grade and the practice of the Respondent, it was clearly within her mandate to effect such transfers of teachers. In short, that the termination of her employment did not pass the test of substantive justification and procedural fairness.

10. The Claimant relied on the decision of the Court sitting on appeal in the case Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] eKLR that it must be demonstrated that the employer had a justified ground to terminate the employee and that he accorded the employee the procedural safeguards guaranteed under the law in the process leading to the termination. She further cited Rotich v Metkei Multi-Purpose Company Limited (Civil Appeal 94 of 2017) [2021] KECA 161 (KLR) (19 November 2021) (Judgment) in which the Court of Appeal affirmed that the employer is enjoined, in mandatory terms under section 41 of the Act, to ensure that before terminating an employee on grounds of misconduct, poor performance or physical incapacity, they explain to the employee the reasons for which the employer is considering to terminate him in a language he understands.

Respondent's Submissions 11. The Respondent submitted that the issues for determination by this Court are whether the Claimant's dismissal was wrongful, unfair and unlawful; whether the Claimant is entitled to the reliefs sought; and whether the Respondent is entitled to the reliefs sought in the Counter-Claim. It was the Respondent's submission that section 47(5) of the Employment Act of 2007 places the burden of proving an unfair termination upon the employee, after which the burden shifts to the employer to prove and justify the reason for the termination and the fairness of the procedure followed before the termination. That the Respondent's evidence was inter alia that it produced documents detailing that transfers were subject to preparation and approval of a transfer matrix by the relevant staffing committees per the Respondent's Lists of Documents - Policy on Recruitment and Deployment of Secretariat Staff. That the Claimant, on her part, admitted to effecting transfers for the teachers listed in her show cause and dismissal letters and is not a first-time offender as argued, having been cautioned on 30th August 2017 to desist from the same. On the procedure followed, the Respondent submitted that it expressly invited the Claimant to show cause on the issue of irregular transfer of teachers, a HRM Committee meeting was then held on 4th September 2018 to consider the matter and which resulted in her interdiction on the same date, the Respondent's CEO through the Claimant's Head of Department then issued her letter of interdiction, and she was thereafter placed on half salary. Furthermore, the Claimant was invited to a disciplinary hearing and upon her attendance, she conceded to unilaterally transferring teachers on several occasions without Transfer Committee approval leading to the decision to summarily dismiss her. It was the Respondent's submission that this Court should as such find that the Claimant's dismissal from employment was justified, fair and lawful within the meaning of sections 41, 43, 45 and 47 of the Employment Act. It relied on the case of Bonventure Asakwa Ofutso v Jubilee Insurance Co. of Kenya Ltd [2018] eKLR where the Court found the reasons for dismissal to be justified.

12. Regarding the reliefs sought by the Claimant in her Claim, the Respondent submitted that it dismissed the Claimant from service pursuant to section 44 of the Employment Act, which permits employer to dismiss an employee without notice, as was the case herein. That having found that the dismissal was justified and fair, the Claimant is neither entitled to notice pay nor compensation as prayed. For unpaid annual leave, the Respondent asserted that the Claimant failed to state the number of outstanding leave days she is seeking and merely placed a figure of Kshs 100,000/- without evidence to support the same. That the Respondent's witness having testified that the Claimant had 20 outstanding leave days that were paid together with her leave allowance at the beginning of the year, as is the Respondent's practice, the Claimant is not entitled to the same. The Respondent submitted that the Claimant cannot claim the unpaid salary for the period she was under interdiction because she had been placed on half salary and was subsequently dismissed from its employ and that in any case, she was not rendering any services during the said period. It further submitted that the Claimant’s pension of a net of Kshs 5,511,184/- was paid out to her before hearing of the suit and which figure is higher than the sum of Kshs 3,925,482. 90 she seeks in her Claim. That furthermore, the said pension was paid out by AON Minet, who is a separate entity not a party to this suit and that the claim, if any, is therefore misdirected at the Respondent. In addition, that such claims pertaining to pension are the preserve of the Retirement Benefits Authority Chief Executive and or Tribunal, which means this Court lacks the jurisdiction to entertain this limb of the dispute and the same should be dismissed. As regards severance pay, the Respondent submitted that the same is only payable in instances of redundancy as stipulated under section 40 of the Employment Act. That since the Claimant was not declared redundant and her contract did not provide for any such payment, the Court should disallow the prayer for severance pay. For the claim for NSSF Contributions, the Respondent asserted that the same was not proven as the Claimant did not furnish any particulars or a statement showing there was any shortfall. It was also the Respondent's stand that Courts have generally disallowed the claim for anticipatory salaries as sought herein per the case of Monica Sang v Habib Bank Limited [2019] eKLR.

13. Regarding its Counter-Claim, the Respondent submitted that based on its evidence and tabulation in Court and further on the Claimant’s admission, the Counter-Claim ought to be allowed with costs and interests to the Respondent from 12th November 2018 at Court's rates until payment in full.

14. The Claimant seeks inter alia the sum of Kshs 21,173,520/- which is the expected salary for the remaining 10 years of service from date of termination up to expected retirement age. This figure is not payable as there was no rationale for the award of the sum. There was no basis to claim it as held in the case of Marete D.K. Njagi v Teachers Service Commission [2013] eKLR which clearly set out that such sums are not due in circumstances such as the one in this case. The Claimant was expected to mitigate her losses and seek alternative engagement. The Respondent was not bound to keep her in employment much in the same way she could have opted to retire at any time from the employ of the Respondent. Counsel should cease giving clients false hopes that such sums are payable or indeed capable of being granted in light of precedent and the reasoning that no services have been rendered to entitle the claimant from getting such payment. A salary is paid for work done.

15. In relation to the dismissal, the Claimant had insisted on undertaking transfers despite a memo urging her to cease. Instead of taking the approach of seeking clarification since she seemed to imagine she had the authority to effect transfers, she persisted in engaging in the practice. The Respondent having determined its employee was rogue had reason to suspend her and perhaps even terminate her services. The reason for termination from the narrative before the Court, was the employee's refusal to obey a lawful order by an employer.

16. However, the Respondent fell into error when it chose to circumvent the Claimant's rights to a fair trial. The Claimant was suspended in absentia and could be so suspended. Nevertheless, she ought to have been given a chance to defend herself. The rules of natural justice and the dictates of the law provide such safeguard. In the absence of the adherence to the law and the rules of natural justice relating to hearing, the termination meted out by the Respondent was thus ipso facto unfair and unlawful within the meaning of sections 41, 43, 45 and 47 of the Employment Act.

17. Regarding the reliefs the Claimant would be entitled to, the Court notes the Claimant was paid her dues. Even the sum claimed for pension is lower than what she received. She received notice pay, pay in lieu of notice. As such the claims regarding her severance pay are all unmerited and are accordingly dismissed. There was a claim for payment of salary for the seven months the Claimant was under interdiction. The Code of Regulation for Teachers makes provision that a teacher on interdiction is to be paid half salary. From all accounts, the Claimant was duly paid the sums due to her during interdiction. Indeed, there is an allegation she was paid for a few months beyond the interdiction and termination. Regarding her claim for unpaid NSSF dues, there was no proof that the Respondent did not remit NSSF dues. The claim for severance pay as well as the refunds sought in relation to NSSF remittances all fail as they are unsupported by the evidence before the Court.

18. The Respondent's counterclaim was tenuous at best. The Respondent is the one which held her file and the continued retention of the Claimant on its payroll is not her fault. It was the duty of the Respondent to communicate and it is clear the termination itself was communicated late. It was not the Claimant's fault that the Respondent had inefficient systems in place. She therefore cannot be asked to right a wrong she had no part in. The inevitable result is that the counterclaim is dismissed, albeit with no order as to costs. In the determination of the Court, the Claimant is thus only successful in as far as the manner and process of termination. For that she will recover 3 months salary – Kshs 585,744/-. She will also have costs limited to this amount. In the final analysis judgment is entered for the Claimant as against the Respondent for:-a.Kshs 585,744/- being 3 months compensation.b.Costs on the sum in (a) above.c.Interest at court rates on the sum in (a) above from the date of judgment till payment in full.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF MAY 2024NZIOKI WA MAKAUJUDGE