, NAIROBI, Kenya, Nov 5 – Justice Nelson Abuodha will on November 20 rule whether to suspend his directive that teachers who were on strike in September should receive their pay.
The Teachers Service Commission (TSC) has applied to have the directive stayed pending the hearing and determination of an appeal they’ve lodged challenging the directive.
Abuodha heard arguments on the application on Thursday with TSC insisting that it was a matter of urgency as the education sector risked being plunged back into chaos.
In a sworn affidavit, TSC Chief Executive Nancy Macharia told the court that teachers unions had threatened to go slow or go back on strike should their members not receive their September salaries.
But Macharia insisted that TSC could not be expected to pay salaries for services not rendered.
“Section 19(1)(c) of the Employment Act allows an employer to deduct wages for each working day the whole of which the employee, without leave or other lawful cause, absents himself from the premises of the employer or other place proper and appointed for the performance of his work,” she cited.
Forcing TSC to pay the September salaries, Macharia said, would be unfair to the taxpayer and the teacher.
“In the event we make the Sh13.75 billion payment for services not rendered and the Court of Appeal rules in our favour, recovering the funds already paid out would cause distress.”
Macharia said the clock was running out on the 90 days Abuodha had given for conciliatory talks on September 25 and unless he stopped it, it would run out and possibly lead to an “undesirable outcome.”
When Abuodha directed that teachers suspend their strike to allow for conciliatory talks, he said they were free to “declare a trade dispute” should no agreement be reached within 90 days.
The Kenya National Union of Teachers and the Kenya Union of Post Primary Education Teachers implored the court not to grant the stay saying TSC had already demonstrated contempt for the court by failing to honour its directives.
Acting for KNUT, Paul Muite said TSC should instead not only be required to pay the September salaries but remit union deductions and third party payments.
A submission which TSC lawyer Kiragu Kimani opposed. He accused the unions of approaching the courts as one would a supermarket.
“You can’t just go putting what you fancy into the basket. The question of deductions is not among those raised in this case.”