Blow to teachers after Appeals Court nullifies 50-60pc pay rise
Teachers on Friday pledged to take their fight for higher pay to the Supreme Court after the Court of Appeal overturned their 50-60 per cent salary raise.
Their lawyer, Paul Muite, together with other lawyers and representatives of the two teachers trade unions had sat quietly and listened as Justices Erastus Githinji, Philomena Mwilu, Festus Azangalala, Prof James Odek Otieno and Martha Koome, dismissed reasons given by the Employment and Labour Relations Court in awarding them the raise.
The stage was set from the beginning when Prof Odek, the first of the five judges to deliver his judgment, faulted Labour Court Judge Nduma Nderi for ignoring the Salaries and Remuneration Commission’s role in evaluating jobs and recommending pay for public servants.
“The advice of commission is binding because it has a legal support anchored in the Constitution. To hold otherwise will be to render the commission impotent. It is not like a friendly advice which can be taken or ignored,” said Prof Odek.
By the time the third judge spoke, it was obvious the teachers had lost. This was the main dispute which led to a five-week national teachers’ strike.
Kenya National Union of Teachers secretary-general Wilson Sossion said: “We are not about to leave this matter at this stage. It is very clear we anticipated what we have seen and therefore we are still consulting and we will take further appropriate steps next week. In the interest of the labour movement, we must get things right. We are definitely headed to the Supreme Court.”
Mr Akelo Misori, his Kenya Union of Post Primary Teachers counterpart, said: “It appears the labour movement is under siege and our right to collective bargaining is compromised by the judgment.”
In his June 30 ruling, Mr Justice Nderi had awarded teachers the salary increase from July 1, 2013 to June 30, 2017.
ERROR IN LAW
But Prof Odek said that this was an error in law because by backdating the award, the judge made the teachers’ commission indebted to the teachers.
He also said that anyone who unlawfully spends public funds will be liable for prosecution. Given that the judge had directed commission to pay what has not been approved by Parliament, he was directing it to commit an offence.
Mr Justice Nderi, he said, equally erred when he failed to put into consideration the expert evidence of witnesses. He was required to at least explain his reasons for not taking into account such evidence.
Mr Justice Azangalala said that the law does not empower a Labour Court judge to take over conciliation between parties. The judge should only refer such matters for alternative dispute resolution.
He said the 50-60 per cent awarded by the court had not been tabled by the Teachers Service Commission but that the judge got the figure from a working document which had been prepared by commission during negotiations and which was not before court.
“The judge should have made a scientific award taking into account the fact that the salaries for the teachers had already been harmonized with other civil servants. Implementing the award will make teachers earn much higher,” Mr Justice Azangalala said.
Lady Justice Mwilu said that she disagreed with the narrow perspective the judge took regarding the role of the salaries commission, by finding that its advice is not binding.
However she said that she could not discredit Mr Justice Nderi’s decision purely on the issue of procedural technicality. She said the judge was handling a delicate matter which was in the public interest and his approach was most suitable.
“There was a lot of anxiety and impatience and the judge had to restore the harmony as well as the integrity of the court. It was obvious that further negotiations could only delay the matter because the commission was not willing to table any offer,” said Lady Justice Mwilu.
Lady Justice Koome said it was sad that the salaries commission had taken over two years to carry out job evaluation for teachers yet they had done so for civil servants.
She issued a minority order that salaries team should within 90 days, issue a report to the Labour Court on job evaluation for teachers. It should also write to the teachers commission, advising on basic pay.
The unions and the Teachers Service Commission should sit down and resolve the basic pay controversy that caused the strike.
The Appellate judges were however unanimous that they will not slap the unions with the costs of the case which may eventually end up being borne by teachers who are union members and who had raised a constitutional issue regarding the role of the salaries commission in determining salaries.
Mr Justice Githinji said that there was no party to be blamed because the error which they have identified was as a result of the erroneous assumptions of jurisdiction which had been assumed by the Labour Court.