By The Weekly Vision Team
The Teachers Service Commission (TSC) has suffered a legal blow after Employment and Labour Relations Court Judge Stephen Radido, through a ruling dated December 13, 2023, dismissed their appeal against a teacher whose services they had tried to terminate.
TSC had appealed against a judgment delivered on July 27, 2023, by the Senior Principal Magistrate, which found that the Teachers Service Commission unfairly terminated the employment of John Nyakibari Mwita and ordered his reinstatement into employment and the register of teachers.
The Commission was dissatisfied, and it lodged a Memorandum of Appeal and Record of Appeal with the Court on August 18, 2023, contending that the learned Magistrate grossly erred in law when he granted orders of reinstatement or re-engagement of Mr Mwita to employment after the expiry of 3 years since the date of dismissal.
The TSC consequently accepted the submissions on November 10, 2023, and the Mwita on November 23, 2023. In concluding that the process leading to the termination of Mwita’s employment was not fair, the Senior Principal Magistrate considered that the appellant failed to consider an objection by Mwita as to the evidence of a class 7 and not 8 representative, while the pupil in question was in class 8, and that Mwita’s evidence was taken before the witnesses had given their evidence.
TSC, in their appeal, further claimed that the Senior Principal Magistrate erred by rejecting its evidence on the ground of hearsay and relying on a recanting statement by the pupil, thus raising the standard of proof.
The Senior Principal Magistrate also noted that the teachers had not been called during the disciplinary hearing, that the testimony of the pupil during the disciplinary hearing was inconsistent, and that her parents, who were allegedly aware of the sexual assault as early as May 2018, made no report until November 2018.
The Court reviewed the evidence placed before the Magistrate’s Court. Relevant witnesses were not interviewed or called to testify. The inconsistencies in the pupil’s testimony were not clarified during the re-examination.
On the statement of Mwita, the judge noted, “The respondent had served as a teacher for all his adult life. The possibility of him finding alternative employment or a source of livelihood is remote. The Senior Principal Magistrate found his dismissal unfair. This Court, therefore, holds that the order of reinstatement met the exceptional circumstances threshold.”.
