A storm is brewing over a requirement that 11,500 new teachers will only be eligible for permanent and pensionable employment after 10 years.
The requirement detailed in a public notice by the Teachers Service Commission (TSC) on the recruitment of 6,100 secondary and 5,474 primary school teachers has been condemned by a union and lawyers.
Kenya National Union of Teachers (Knut) on Thursday protested that TSC is essentially placing the new teachers on a 10-year probation, a violation of labour laws.
“Please note, to qualify for appointment on permanent and pensionable terms of service, a candidate should be eligible to serve for a minimum of 10 continuous years, effective from the date of first appointment,” reads the notice published in the dailies by TSC chief executive Nancy Macharia.
If the rule is enforced, the new teachers will not qualify for promotions until after September 2030.
Newly recruited teachers are confirmed on permanent and pensionable terms after successful completion of six months’ probation. This is a trial period for testing the capabilities of newly recruited workers, during which an employee is exempt from some contractual benefits.
Depending on the employer, the period, which serves to observe the character or abilities of the new worker, typically lasts between three and six months.
According to Section 42 of the Employment Act, probation should not be more than 12 months.
Teachers feel disadvantaged because the same Employment Act give employers powers to terminate the contract of an employee on probation by giving a notice of only seven days.
On the face of it, the new rule by TSC, which is also contained in the commission’s 2020/2021 recruitment guidelines, means that teachers will not qualify for promotions, administrative positions in schools or benefit from career progression.
The ambiguous clause has alarmed teachers, with Knut Secretary General Wilson Sossion describing it as “a serious labour catastrophe that will obviously invite litigation”.
Mr Sossion said the clause was illegal and amounted to suspending Article 42 of the Constitution and other employment laws that guarantee every Kenyan the right to fair labour practices.
“You cannot employ a teacher today, then tell him or her that they’ll qualify for appointment on permanent and pensionable terms after 10 years. That’s ridiculous and we’ll definitely challenge it in court” he declared.
The nominated MP said TSC cannot purport to redefine the law by introducing labour practices that are illegal and that deny thousands of young teachers the benefits of career progression. Nairobi lawyer Suyianka Lempaa, who successful sued TSC last year over a discriminatory provision, accused the commission of using crafty means to circumvent last year’s ruling by Justice Hellen Wasilwa.
The judge declared a circular by TSC limiting the age of employment to those below 45 years as discriminatory and unconstitutional.
Mr Lempaa said he will be moving to court to cite Dr Macharia for contempt, saying the clause was inserted to escape the burden of obeying the court ruling.
Mr Lempaa said the wording of the clause formally puts teachers on probation beyond what is stipulated in law hence defying the ruling by Justice Wasilwa.
“I am headed back to the court to challenge that clause on behalf of Kenyan teachers who stand to be disadvantaged if the same isn’t reversed,” said Mr Lempaa.
However Dr Macharia explained the clause was meant to caution job seekers above the age of 45 that unless they work for 10 uninterrupted years, they won’t qualify for pension.
All teachers will be confirmed after six months but we’re only advising them that to qualify for pension, one has to serve for 10 years,” the TSC boss said through Communications officer Betty Wababu.
