By: ABIUD OCHIENG
A request by the Teachers Service Commission (TSC) to be granted orders stopping the payment of teachers’ September salaries has been declined.
The TSC wanted the September 25 orders by the Employment and Labour Relations Court directing it to pay the salaries temporarily stopped so that it could move to the Court of Appeal and contest the award.
In his ruling, Justice Nelson Abuodha said he would leave it to the Court of Appeal to decide whether or not to grant the stay sought by TSC.
He said he rendered his judgment on September 25 having considered all the issues he felt were appropriate for him to make the orders as he did.
“I will leave it to the Court of Appeal to undertake the analysis of my decision and if persuaded, to stay the same pending the hearing and determination of the Appeal. The court therefore declines to grant an order of stay,” said Justice Abuodha.
NO WORK, NO PAY
The TSC, through lawyer Kiragu Kimani, had argued that according to the Labour Relations Act, the employer is obliged to withhold salaries even when the strike was protected.
“There cannot be remuneration where there is no work done. Even in cases of a protected strike, it is the employment which is protected not the wages and an employee who withdraws labour is not to be paid,” Mr Kiragu explained.
He said the September salaries are drawn from public funds and if they are paid, and the Court of Appeal finds that payment should not have been made, then the TSC officers who processed such payment will have contravened the law and will be liable for criminal prosecution irrespective of the order to pay.
“The fact that a substantial amount of public funds is involved is sufficient ground for the court to grant an order stopping payment of September salaries until the appeal is determined,” said Mr Kiragu.
The lawyer also explained that the TSC may find it difficult to recover the money from the teachers because out of the 250,000 teachers who will have been paid, many may have left the profession and others may have passed on.
Further, according to the law, only a third of the wages can be withheld and it will take at least three months to recover all the money should its appeal succeed.
“It may also create an undesirable situation where members of the union will be working in the knowledge that they will not get full wages. This will be a recipe for industrial strike,” he said.
SOURCE: DAILY NATION