A request by the Teachers Service Commission (TSC) to be granted orders stopping the payment of the teachers September salaries has been declined.
The TSC wanted the September 25, orders by the Labour Court directing it to pay the said salaries, temporarily stopped, so that they could move to the Court of Appeal and contest the award.
Mr Justice Nelson Abuodha has in his ruling, said that he will leave it to the Court of Appeal to decide on whether or not to grant the stay being sought by TSC.
He said he was not persuaded to grant the said stay saying that 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 Mr Justice Abuodha.
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,” explained lawyer Kiragu.
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He said the said September salaries is drawn from public funds and if the salaries 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,” lawyer Kiragu.
The lawyer also explained that TSC may find it difficult to recover the monies 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 monies 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,” lawyer Kiragu.
SOURCE: BUSINESS DAILY