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Addressing grievances for county government employees, why rushing to court is not an option

Since 2013 when county governments were operationalized, taking the place of what were municipal councils, town councils and city councils, there has been many employment grievances pitting the new levels of government with employees. One would be forgiven to think that these were teething issues, which would subside with passage of time. That thought is not pardonable lately as the problems have persisted and worsened in the recent past, about a decade into devolution. The issues raised range from unfair termination, discrimination, sexual harassment, lack of payment, to low pay and lack of promotion.

Some of the employment grievances have been highlighted by the media, while many have not. A simple search for employment issues in counties on search engines bring out a plethora of hits. As with all disputes, knowing the procedure for redress is key.

The Public Service Commission is the first port of call

An aggrieved employee of a county government must first exhaust the appeal process at the Public Service Commission as provided under the County Governments Act and the Public Service Commission Act, one cannot come to Court in the first instance. Section 77 of the County Government Act provides as follows:

• Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission (in this Part referred to as the “Commission”) against the decision.
• …)
• An appeal under subsection (1) shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of the Commission, the circumstances warrant it.

From the above section the Court lacks original jurisdiction because the county employees, the trade unions, or the employer are required to first apply for review to the public service commission. Additionally, section 77 of the County Government Act, is couched in mandatory terms and the operative word is “shall”.

It is now trite that where a statute provides a remedy to a party, the Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. This principle was well articulated by the Court of Appeal in Speaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425, where it held that;

“In our view there is considerable merit…that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

Section 77 of the County Government Act has been affirmed by the Court of Appeal in Secretary County Public Service Board & Another –Versus- Hulbhai Gedi Abdlle [2016] eKLR where it held that the petitioners ought to exhaust the appeal jurisdiction before the Commission as provided in section 77 of the County Governments Act and Article 234(2) (i) of the Constitution.

Also instructive is the case of Secretary,County Public Service Board & Another- Versus Hulbhai Gedi Abdille [2017] eKLR which in summary upheld the bar to the invocation of the court jurisdiction where there is alternative remedy  and held that section 77 of the County Governments Act bestowed upon the PSC original and specialized jurisdiction to hear appeals on decision made by county public service board relating to employment of a person in the county government including the decision in respect to the matter listed under section 77(2)(a)to(g) of the County Government Act.

Related to the above is Section 87(2) of the Public Service Commission Act, 2017 which states,

A person shall not file any legal proceedings in any Court of law with respect to matters within the jurisdiction of the Commission to hear and determine appeals from county government public service unless the procedure provided for under this Part has been exhausted.

Section 89(1) of the Public Service Commission Act provides that any person who is affected by the decision of the Commission made under this Part may file the decision for enforcement by the Employment and Labour Relations Court provided for under Article 162 (2) (a) of the Constitution.

Under Section 89 (2) of the Public Service Commission Act, any person who refuses, fails or neglects to implement the Commission’s decisions is liable to disciplinary action in accordance with the applicable laws including removal from office.

Against that backdrop, the Public Service Commission (County Government Public Services Appeals Procedures) Regulations, 2016 has been passed to provide for elaborate procedures for hearing of appeals in respect of county public service. The provisions include, among other matters, procedures on lodging an appeal; notification of county government public  service about lodging of the appeal; processing of the appeal; service of notices; hearings; recording of proceedings;  findings and recommendations; making of decision; communication of the decision; hearing and determining the appeal in 4 months from the date of lodging the appeal; review;  powers of the Commission on review; Communication of review decision; delivery of documents to the commission; and rights of appellants. The regulations provide that where the appeal is heard orally, then both the appellant and the respondent shall be given an opportunity to be heard and where necessary to present witnesses.

Conclusion

To avoid the perils of costs for suits dismissed for lack of jurisdiction, delayed justice, and lack of reprieve once a matter becomes time barred, familiarity with the procedure for addressing grievances by county government employees is very important. As the saying goes, ignorance of the law is no defense.