The Employment and Labour Relations court has directed the immediate reinstatement of sacked Teachers Service Commission (TSC) Senior Human Resource Manager Rose Mwende Mustiya.
Mwende had moved to court saying her rights and freedoms were violated when she was sacked in May 2022 allegedly over abuse of office in regards to teachers' promotion payrolls.
Justice Byram Ongaya, who issued the judgment, directed that Mwende be reinstated to her post as Senior Human Resource Manager of the TSC headquarters office without loss of salary, benefits or work perks.
“The employment was terminated unfairly. A mandatory order is issued directing TSC to reinstate the petitioner back to her position of senior Human Resource office at the headquarters and be paid in full special damages arising from the outstanding emoluments and benefits that she would have otherwise earned from the time she was illegally dismissed being May 2022 until today and continue earning according; and the TSC to deploy the petitioner upon reporting not later than 30 days from today," Justice Ongaya ruled.
The judge observed that TSC acted unfairly and unlawfully when it sacked Mwende over allegations of irregular promotion of teachers in the payroll.
The basis of her sacking was an internal audit conducted in October 2021 which revealed that 22 teachers were verified to have been irregularly promoted in the payroll without any documentary evidence of approval in their personal files.
According to the audit, it was considered that staff at the commission took advantage of the high number of teachers approved for promotion to irregularly introduce additional promotions into the payroll system.
Following the audit, TSC constituted an investigations committee whose report recommended five employees who had previously been warned or cautioned on account of erroneous salary adjustment and subsequent overpayment be subjected to disciplinary action for violating the commission overpayment policy.
Mwende was one of the five implicated officers, she was interdicted on December 16, 2021, for breach of the Human Resource manual for secretariat staff, 2018.
She was asked to defend herself within 21 days which she did in writing by December 29, 2021.
In her response, she stated that the errors in payrolls were purely caused by work pressure to clear pending files that piled up during the Coronavirus pandemic.
She explained that it must have been during that period that she may have punched the wrong digits which made the error go unnoticed.
"There was no professional negligence on my part because upon being informed of the error by the Investigating TSC panel on October 19, 2021. I requested the authority to reverse the cases to stop further overpayment," she concluded.
A TSC disciplinary panel was constituted and found her culpable of the allegations as had been levelled against her and resolved to dismiss from the service on May 17, 2022.
But justice Ongaya concurred with Mwende that the disciplinary panel chaired by Kenneth Marangu which made the decision to sack her was not properly constituted.
"Thus as submitted by the petitioner, the disciplinary panel was improperly constituted, its decisions are null and void. The court finds accordingly, " Justice Ongaya stated.
Further, the judge also found that TSC acted discriminatory when it dismissed Mwende while other officers culpable in similar circumstances were either suspended or simply warned.
"It was discriminatory for TSC to dismiss Mwende and retain in service or more culpable officers. The dismissal is found to have been excessive and is amenable to be set aside," the judge ruled.