Court of Appeal suspends employment orders, dealing a blow to intern teachers.
The Teachers Service Commission’s (TSC) plans to hire 46,000 intern teachers on permanent, pensionable conditions have been shattered by the Court of Appeal.
The rulings from the Employment and Labour Relations Court (ELRC) compelling the commission to convert the internship to permanent and pensionable terms were suspended by Justices Asike Makhandia, Sankale Ole Kantai, and Ngenye Macharia.
The significance of the decision is that TSC now gets the last laugh because the resentful parties will have to keep working as interns until the Dr. Nancy Macharia-led commission’s case is heard and decided.
TSC argued in its plea that the directives issued by Justice Byrum Ongaya had caused chaos in its operations because the funds needed to bring on the intern teachers on full-time, pensionable positions had not been budgeted for.
“The rights of all learners in public schools underpinned under Articles 43 and 53 of the Constitution are on the verge of being violated as the Commission has no financial resources to on-board the 46,000 on permanent and pensionable terms and conditions”.
Allan Sitima, a lawyer for the TSC, said The commission contended that the disgruntled intern instructors were obligated to uphold their contracts, saying that they voluntarily executed the essential paperwork despite being shortlisted for jobs the following year.
TSC claims that since it will have awarded fresh contracts, the lawsuit will have been declared an academic exercise in the event that its planned appeal is successful.
Despite finding that the intern teachers’ contracts were unlawful, Justice Ongaya ordered that their job status be maintained.
The employment freeze orders were meant to remain in effect until the commission came to an agreement or obtained temporary orders from the Court of Appeal.
Judge Ongaya had granted TSC a three-month grace period, during which it could either ask the higher court to step in or hire all of the impacted instructors on a permanent and pensionable basis. The Kenya Junior Secondary School Teachers Association (KeJUSTA) wrote to its members one day after the Judge issued the directives.
They contended that the judge’s intent was not entirely obvious. Daniel Murithi, secretary general of KeJUSTA, commented, “I wish to caution teachers against misguided interpretation of the ruling and the misplacement of the term status quo as it appears in the ruling.”
TSC contended in the case that the ruling would imperil its intention to appoint people working as interns in 2025.
Court of Appeal suspends employment orders, dealing a blow to intern teachers.
Judge Ongaya, however, stated that the motion implied that the TSC was requesting that he hold off on making a ruling stating that the status quo would be upheld until August 1, 2024.
“The court believes that maintaining the status quo with regard to the findings and orders from the prior judgment would be appropriate in the interest of justice.”
Justice Ongaya contended in his ruling that TSC had transgressed the entitlement to equitable labor practices by offering internship opportunities to the impacted individuals notwithstanding their qualifications and teaching licenses.
In order to teach junior secondary schools, TSC employed at least 60,000 instructors as interns. However, the choice left unclear what would happen to Junior Secondary School days when classes resumed for the second semester.
The JSS’s Competency Based Curriculum has been implemented mostly thanks to the intern teachers. They have promised not to return to work until the problem is fixed.
Justice Ongaya ruled in his decision that the commission is only authorized to employ individuals who are competent and registered, hence it is not permitted to engage or hire interns or student teachers.
“The first respondent (TSC) would be entitled to hire interns if the respondents had demonstrated statutory regulatory or policy arrangements.”
According to him, the first response should ideally hire registered instructors on nondiscriminatory terms in order to satisfy public schools’ ideal staffing requirements.
In addition to serving as a crash program to supply teachers for JSS, the program was created to address the teacher shortage in schools.
The original plan was for it to last for a year, after which the intern instructors would be hired on a permanent and pensionable basis.
But before the instructors can be given consideration for permanent and pensionable employment, President William Ruto declared in December that they would need to serve an additional year.
The interns were given contracts by TSC to teach two topics, as the court heard the case. But in the classroom, everything was covered, including arithmetic and science.
The intern teachers were further resentful that some of their colleagues had been employed on permanent and pensionable conditions, while they had been retained on terms similar to those of college and university instructors who are placed in schools to gain teaching experience.
Court of Appeal suspends employment orders, dealing a blow to intern teachers.
There were allegations that TSC withheld all taxes and government contributions, including the contentious housing levy, even though the tutors received an intern stipend.
The Forum for Good Governance and Human Rights brought the lawsuit on behalf of the interns. It suggested that individuals employed were not under supervision and were free to work on any subject.
The children’s rights and lives are being carelessly handled by the second respondent as test subjects to see if the CBC can function.
I declare that this is a concerning situation, the court heard. An affidavit supporting the case was filed by one of the impacted teachers.
According to Oroso Oganga, he was transferred to Kajiado County’s Eking Narok Primary School.
Oroso is a Bachelor of Arts in Education graduate. He contends that he was required to teach either Christian Religious Education (CRE) or history under the terms of his contract with TSC.
He ended up teaching computer science, integrated science, social studies, CRE, health education, and life skills when he reported to the school on February 7, 2023.
He lamented that despite all the work, he went home with Sh20,000 stipend.
Court of Appeal suspends employment orders, dealing a blow to intern teachers.
