Observations on the Legal Issues Surrounding the Proposed Teaching Professions Council

Members of the teaching profession in government institutions are employed by the Civil Service Commission (formerly called the Public Service Commission). In the event of disciplinary issues arising, they are disciplined by the Civil Service Commission and the Ministry as provided in the Public Service Regulations, 2000. The Public Service Regulations also specify acts which constitute misconduct. In the event that a TPC is put in place, it means it will have to assume the role of disciplinary members of the profession. This is because of a professional council for any organised profession, e.g: The Law Society of Zimbabwe is to discipline its members (self-regulation).

That role is reserved to the professional council, through its disciplinary tribunal/committee. An example is the Disciplinary Tribunal of the Law Society of Zimbabwe. The role cannot be exercised by two authorities, in this case the Civil Service Commission and the TPC.

A legal challenge will therefore arise since members in the teaching profession are employees of the government under the Civil Service Commission. As the employer, the commission will have a legitimate interest in wanting to discipline its employees. This is a recognised right of an employer at labour law.

There is therefore a real risk of lack of independence and genuine self regulation on the part of the TPC as long as the Civil Service Commission will remain the employer. The commission may not ascribe the disciplinary role fully to the TPC. It may want to be involved thus rendering the TPC subservient to the commission. There is no such problem in the legal profession for instance since lawyers are truly independent and are not employed by the State or other employer. They are independent agents of their clients. The Ministry should clarify how it intends to deal with this situation.

2. Effect of Deregistration of a Member on Their Employment Status with the Civil Service Commission

Assuming that the TPC will have the power to register, licence and deregister members, there is a likelihood of problems in enforcing such deregistration should the commission remain the employer. For any deregistration to take effect, the commission or whoever the employer may be, should recognise and effect to the deregistration.

There may be serious enforcement problems should the TPC deregister or decertify a member for any reason but due to staffing requirements, the employer may not want to suspend the member. In that case, the TPC will be reduced to a mere academic body without the teeth to enforce its decisions will be dependent on the attitude of the employer. This compromises the independence of the TPC and the ability of the profession to self-regulate thereby defeating the whole notion of a professional council.

Apart from the foregoing, issues of a member’s remuneration will also come into play. How will a deregistered member be treated in terms of remuneration during the period of deregistration. It will involve the paymaster to enforce any moratorium on a member’s benefits during any period of deregistration. This also has a bearing on the independence of the TPC.

3. Funding of the TPC

Issues around funding of the TPC may also present legal challenges. During the outreach meetings, one source of the funding for the TPC which was widely proposed were members’ subscriptions. However, there is a risk that some members may be unwilling to fund the TPC through their income. They may mount arguable challenges to that proposal up to the Constitutional Court on property rights considerations.

Unlike subscriptions to Unions, which are voluntary, subscriptions to the TPC may be compulsory since every member will have Council. However, the possibility that the TPC may not be entirely independent will always afford unwilling members an avenue of resisting to pay subscriptions to the TPC. For instance, there is already a National Education Advisory Board and Regional Education Advisory Boards established under the Education Act (Chapter 25:04).

These advisory boards do have roles which overlap with these of the proposed TPC e.g the regulation of standards in the teaching professions. The boards are funded by government. When then should members be compelled to pay subscriptions to a TPC that is not fully independent but will still be subservient to the commission? Further, why should such a TPC enjoy the privilege of being funded by members’ subscriptions when there are already in existence government funded bodies who can play the same roles.

4. Application of TPC Code to and Membership of All Teachers to the TPC

The teaching profession consists of members in government institutions and those in non- governmental institutions. From the tone of the Ministry’s Report on the outreach meetings, it is meant to make all members in the profession government or otherwise, fall under the same TPC. This will have legal challenges on implementation. For instance, it will not be lawful from the point of view of equality before the law, to require members with different earnings level to pay similar subscriptions.

Members employed in non-governmental institutions may not be willing to fund a TPC which is subservient to the Civil Service Commission which Commission is not their employer. The non- governmental employers may also not be willing to lose the right to discipline or otherwise regulate the conduct of their employees. Such employers may not accept a situation where a TPC which is subservient to the government will have power to influence how their employees render their services.

5. Continuous Professional Development vis a vis Employment with the Civil Service Commission

From the Ministry’s Report, it appears there will be a requirement on members to attain a certain number of continuous Professional Development (CPD) points in a given period in order for one to be registered for that period. This system of points works well with professions such as the legal profession. However, there may be problems of implementation in the teaching professions. This again goes back to the point that the Commission is the employer.

A member may fail to acquire the requisite amount of points for registration. However, the member’s service may still be required at a given institution. In this scenario parents of pupils and the pupils will become critical constituencies. A member may thus continue in service without having acquired the required CPD points. This also jeopardises the independence of the TPC.

The TPC is a noble proposition. However, as illustrated above. There is need for the Ministry to really deal with the legal questions raised by the members of the profession during the outreach meetings before the TPC can be put in place. There is a temptation to rush through the process of establishing a TPC. From the contents of the Report, the proposition of a TPC appears to have gathered widespread support and the Ministry will be keen on quickly putting up the TPC.

However, proceeding without applying the mind to the legal challenges around the implementation of the TPC may make for lengthy delays in the implementation due to legal challenge in Court. The TPC may actually be legally impossible to establish if pertinent legal questions are not addressed.

Source: Amalgamated Rural Teachers’ Union of Zimbabwe (ARTUZ)

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