Blow for teaching trainees: Court of Appeal suspends employment orders

The Court of Appeal has dashed hopes that 46,000 trainee teachers with the Teachers Service Commission (TSC) would receive permanent employment with pension entitlement.

Justices Asike Makhandia, Sankale Ole Kantai and Ngenye Macharia overruled the orders of the Labour and Employment Tribunal (ELRC) requiring the Commission to convert the internship into a permanent and pensionable internship.

The significance of the ruling is that TSC now has the last laugh as the aggrieved persons must continue to work as interns until the case filed by the commission headed by Dr. Nancy Macharia is heard and decided.

In the motion, the TSC alleged that Judge Byrum Ongaya’s orders had completely disrupted its operations because the money needed to hire the interns on a permanent basis with pension rights had not been provided for in the budget.

“The rights of all public school students enshrined in Articles 43 and 53 of the Constitution are on the verge of being violated as the commission does not have the financial means to accommodate the 46,000 students on a permanent basis and on pensionable terms,” argued TSC lawyer Allan Sitima.

The Commission argued that the aggrieved interns were bound by their contracts and that they had signed the crucial documents voluntarily, even though they were being considered for employment next year.

According to the TSC, if the appeal is successful, the case would become an academic exercise as new contracts would be awarded.

Judge Ongaya found that the interns’ employment contracts were illegal but ordered that their employment relationships should continue.

The suspension orders were to remain in force until the Commission either obtained interim injunctions from the Court of Appeal or reached a settlement.

Judge Ongaya had granted the TSC a three-month grace period, meaning the company would have to either go to the higher court or take on all affected teachers on a permanent, pensionable basis.

A day after the judge issued the orders, the Kenya Junior Secondary School Teachers Association (KeJUSTA) wrote to its members that it was awaiting the interpretation of the term “status quo”.

They argued that it was unclear what the judge meant.

“I want to caution teachers against misinterpreting the judgment and misusing the term status quo in the judgment,” wrote KeJUSTA Secretary General Daniel Murithi.

TSC argued in this case that the ruling would jeopardize its plan to hire the interns in 2025.

However, Justice Ongaya explained that the motion meant that the TSC was asking him to make his own judgment and make it clear that the status quo must be maintained until August 1, 2024.

“It is in the interest of justice and the Court considers it appropriate to maintain the pre-judgment status quo in respect of the findings and orders of the Court in the judgment pending a settlement or re-arrangement of the matters between the parties or the applicants making an application to that effect to the Court of Appeal,” he said.

In his ruling, Justice Ongaya argued that TSC had violated the right to fair labour practices by providing internships to those affected despite them having the necessary qualifications and teaching qualifications.

TSC hired at least 60,000 teacher interns to teach in secondary schools.

But the decision has put in question the fate of the Junior Secondary School days until schools reopen for the second academic year. The interns have been the backbone of the implementation of the competency-based curriculum at JSS. They have vowed not to return to work until the issue is resolved.

In his judgment, Justice Ongaya ruled that the Commission could not recruit or employ student teachers or interns as its mandate was limited to employing only qualified and registered persons.

“The respondents have not presented any legal arrangements or policy agreements that would authorise the first respondent (TSC) to hire interns. Ideally, the first respondent should hire registered teachers on terms that are non-discriminatory and meet the optimal staffing needs of public schools,” he said.

The programme was introduced to address the shortage of teachers in schools and also served as a crash programme to provide teachers for JSS.

The duration was initially set at one year before the interns were taken on for a permanent internship with pension entitlement.

However, in December, President William Ruto announced that teachers would have to extend their term of office for another year before being considered for permanent employment with pension rights.

In this case, the court heard that TSC gave the interns contracts to teach two subjects, but in class they taught everything, including science and math.

In addition, the trainee teachers were angry that some of their colleagues were hired on a permanent basis and with pension rights, while they were continued to be employed on the terms of college and university teachers who are sent to schools to learn how to teach.

There were allegations that despite the fact that the tutors received an internship stipend, TSC withheld all taxes and duties required by the state, including the controversial housing tax.

The case was filed by the Forum for Good Governance and Human Rights on behalf of the interns, stating that the interns hired were not supervised but had to deal with all issues on their own.

“The second defendant casually treats the lives and rights of children as guinea pigs to confirm whether the CBC can work. I submit that this is indeed a worrying state of affairs,” the court said.

One of the affected teachers filed an affidavit in support of the case. Oroso Oganga said he was sent to Eking Narok Primary School in Kajiado District.

Oroso holds a Bachelor of Education (Arts). He argues that his contract with TSC requires him to teach history or Christian Religious Education (CRE).

However, when he joined the school on February 7, 2023, he ended up teaching Computer Science, Integrated Science, Social Studies, CRE, Health Education, and Life Skills.

Oroso said he was also responsible for the administration and management of the class.

He complained that despite all his work, he went home with a scholarship of 20,000 shillings.