Blow to intern teachers as Court of Appeal suspends employment orders

Blow to intern teachers as Court of Appeal suspends employment orders

Blow to intern teachers as Court of Appeal suspends employment orders

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 argued that the aggrieved intern teachers were bound to their contracts claiming that they willingly signed the crucial documents even though they were being considered for employment next year.

According to TSC, in the event its intended appeal is successful, then the case will have been rendered an academic exercise since it will have issued new contracts.

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 given TSC a grace period of three months, meaning that it had to seek intervention from the higher court or absorb all the affected teachers on permanent and pensionable terms.

A day after the Judge issued the orders, the Kenya Junior Secondary School Teachers Association (KeJUSTA) wrote to its members saying it is waiting for the interpretation of the term ‘status quo.’

They argued that it was unclear what the judge meant.

“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,” wrote KeJUSTA secretary general Daniel Murithi.

In the case, TSC argued that the judgment would jeopardise its plan to hire those employed as interns in 2025.

However, Justice Ongaya said that the application meant that TSC was asking him to sit on his own judgment clarifying that status quo be maintained until August 1, 2024.

“It is in the interest of justice, it appears to the court that it would be appropriate for the status quo prior to the judgment to be maintained with respect to the findings and orders of court in the judgment, pending a compromise or rearrangement of the affairs between parties or applicants filing appropriate application at the Court of Appeal,” he said.

In his judgment, Justice Ongaya argued that TSC had violated the right to fair labour practice by giving those affected internship positions while they were qualified and possess 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 respondents have not exhibited statutory regulatory or policy arrangements that would entitle the first respondent (TSC) to employ interns. Ideally, the first respondent should employ registered teachers upon terms that are not discriminatory and to meet the optimal staffing needs in public schools,” he said.

The programme was introduced to plug teacher shortage in schools and doubled as a crash program to provide teachers for JSS.

It was initially set to run for one year before the intern teachers are absorbed on permanent and pensionable basis.

However, in December, President William Ruto announced that the teachers will be required to serve an extension of another one year before they can be considered for permanent and pensionable employment.

In the case, the court heard that TSC gave contracts to the interns to teach two subjects. However, in classes, they taught everything including sciences and mathematics.

Further, the intern teachers were aggrieved that some colleagues were hired on permanent and pensionable terms while they were retained under the terms of teachers in colleges and universities who are placed in schools to learn how to teach.

There were claims that despite the tutors getting an intern stipend, TSC deducted all taxes and contributions required by the government, including the controversial housing levy.

The case was filed by the Forum for Good Governance and Human Rights on behalf of the interns. It indicated that those hired were not supervised but left to grapple with all subjects on their own.

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.

Oroso stated that he was in charge of the class’s management and administration as well.

He bemoaned the fact that he only received a Sh20,000 stipend after all the work.