A decision by the Teachers Service Commission to send 122 teachers back to schools in Mandera despite their security concerns has cost the commission Sh12.2 million after the Employment and Labour Relations Court ruled that the move violated the teachers' rights and was procedurally unfair.
The ruling, delivered on Wednesday by Justice Jemimah Keli, followed a petition filed by the Kenya Teachers in Hardship and Arid Areas Welfare Association (KETHAWA), which challenged disciplinary action taken against teachers who left their work stations in Mandera because of insecurity before being instructed to report back to the same schools.
KETHAWA had asked the court to stop TSC from reposting the affected teachers to the North Eastern region until the case was heard and determined.
After examining the matter, Justice Keli found that the disciplinary process followed by TSC was flawed, making it unfair to treat the teachers as having deserted duty.
“The court noticed the petitioner's (KETHAWA) allegations of insecurity in Mandera were valid, and it was unfair to repost them to the same schools in Mandera,” the judge observed.
Justice Keli held that once the court established that the disciplinary process was defective and the teachers had already been directed to resume duty, the issue of desertion could not stand.
Even so, the court affirmed that TSC retains the legal authority to deploy and transfer teachers across the country as part of its mandate.
The judge said the commission could move the affected teachers from Mandera to Garissa County but should not send them back to the schools in Mandera where they had raised concerns over their safety.
The court also cautioned against branding the entire North Eastern region as insecure, saying such a position would affect learners' access to education.
“The court further upholds the right of the children in the Northeastern region to education, which is effected through teachers. It is unproportional to condemn the entire Northeastern as insecure,” the judge stated.
Justice Keli directed TSC to proceed with deploying the teachers to Garissa County, excluding Hulugho, while observing the government's policy on retaining public servants.
The court further quashed TSC's decision declaring the teachers guilty of absconding duty together with the subsequent decision that returned them to their previous stations in Mandera.
The teachers were also awarded Sh100,000 each after the court found that the commission had violated their right to fair administrative action.
Justice Keli observed that TSC insisted on reposting the teachers to Mandera despite unresolved security concerns, exposing them to circumstances that threatened their right to life.
“The teachers are each awarded Sh100,000 for vindication of their right to fair administrative actions for being reposted to Mandera when their safety as non-local teachers had not been guaranteed, posing a threat to their right to life,” Justice Keli ordered.
The total compensation awarded to the 122 teachers amounts to Sh12.2 million, with the court also ordering TSC to pay the costs of the petition.
However, the teachers will not be paid salaries for the period they remained away from their duty stations after Justice Keli declined to grant that request.
The court granted TSC a 30-day stay on payment of the compensation after the commission sought more time to comply with the award.
The stay does not apply to the deployment order, with the commission required to transfer the teachers to Garissa County within 30 days.
The judgment allows TSC to continue exercising its powers to deploy teachers but prevents it from returning the affected teachers to the same schools in Mandera where the court found their security concerns to be genuine.