The Court of Appeal today gave its judgement in the appeal lodged by the Teachers’ Service Commission challenging the decision of the Industrial court to award teachers a pay rise without involving the Salaries and Remunerations Commission. Declaring that the award of the Industrial Relations Court was made without jurisdiction, the Court observed that upholding the award would return the country to a pre-constitution 2010 era, which is not desirable.
The Court agreed with the teachers’ employer that it has the independent mandate to administer and manage the service relations with teachers. It also emphasized that the SRC is an inevitable institution when the remuneration of teachers is concerned. The court also demonstrated the complexity of the dispute and its macroeconomic implications, which it said, must be considered by appropriate institutions before deciding on pay increases. The rights in the constitution must be applied and interpreted within the full context of the institutions and multidimensional parameters. Fiscal sustainability is an important factor to take into account before escalating public service pays, it says.
Only relevant constitutional institutions,in particular the SRC, have the exclusive jurisdiction to determine the basic salaries, and allowances of public servants, including teachers, said the court.
The lower court, in allowing a 50% increment in basic salary for teachers, a task for which it had no institutional competence, made a fatal jurisdictional error and usurped the jurisdiction of the institutions mandated with this task, said Justice Githinji.
“Without jurisdiction, the award made by the Industrial Court is a nullity, which we hereby set aside”, continued the Court of Appeals in its decision.
”The court could not award an increase in basic pay and allowances as it could not derive its jurisdiction from the consent order recorded by parties before court, the Industrial Court Act or the Labour Relations Act.”
“Having found so, there is no need for this Court to go into the merits or otherwise of this appeal.”
The judges of Appeal also laid into the industrial Court judge, Nelson Abuodha, underlining his mistake in no uncertain terms.
“As a general rule, a judge of the Industrial Court has no jurisdiction to conduct mediation or conciliation under S 15 of the Industrial Relations Act”.
Regarding costs, the Court indicated that “it is clear” that this appeal is due to the erroneous action of the Industrial Court judge. For this reason, it allowed the appeal without any order on costs.
The judges unanimously found that the TSC had a right to be heard notwithstanding objections that it was in contempt of the Industrial Court order. Secondly, the advice of the SRC is binding on matters relating to remuneration, and the SRC has a role to play in all Collective Bargaining Agreements in matters relating to renumeration of public servants, including teachers. Finally, the Court declared that no orders made by it conferred jurisdiction on the Trial court to intervene in the dispute.