LEGAL ALERT NO.5 OF 2021.
Probation is deemed to be a period of establishing if an employee is fit for the job. It is the period granted to the employer and the employee to know each other before making firm commitments. It also allows the employer to test the fitness of an employee.
Since the year 2007 when the Employment Act was enacted, Section 42(1) of the Employment Act has excluded the application of Section 41 of the Employment Act where termination of employment terminates a probationary contract.
Employers were at liberty to terminate the probationary contracts at will so long as they paid notice to pay or allowed the employee to serve the contractual notice period.
This position has since been reviewed by the Employment and Labour Relations Court in a recent decision in the case of Monica Munira Kibuchi & 6 Others v Mount Kenya University& Another which decision declared section 42 (1) of the Employment Act unconstitutional, null, and void.
Section 41(1) of the Employment Act requires an employer to explain to the employee why the employer is considering termination before terminating an employee’s employment. The employee is also entitled to be accompanied by another employee or a union representative during the explanation. Moreover, an employer must hear and consider any representations of an employee before dismissing such an employee on the grounds of misconduct or poor performance.
The Court was of the view that excluding termination of probationary contracts from the rights guaranteed in Section 41 (1) of the Employment Act contravenes the rules of fairness, natural justice, and equity.
In Monica Munira Kibuchi & 6 Others v Mount Kenya University& Another, the Court held that section 42(1) is constitutionally impermissible because it is inconsistent with Articles 47 and 50 of the Constitution. Article 47 entitles everyone to the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. It further stipulates that where administrative action is likely to affect a person adversely, they are entitled to written reasons for the action. Article 50, on the other hand, provides that every person has the right to have any dispute that the application of the law can resolve, to be decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
Going forward an employer must be guided by substantive and procedural fairness when terminating probationary contracts before the expiry of the term. This will require an employer to have fair and valid reasons for termination and accord the affected employee a hearing in the presence of a shop floor union representative or another employee before effecting the termination of the probationary contract.
We are, however, of the view that upon expiry of the term of the probationary contract an employer’s obligation is limited to notifying the employee whether the employee will or will not be confirmed for employment with an additional option of extending the probationary contract.
We do not ascribe to the notion that an employee is entitled to a hearing upon expiry of the term of the probationary contract. Our view is founded on the fact that probationary contracts are for a fixed period and would automatically come to an end on a fixed date unless extended by parties.
The Courts have previously held that “the general principle that a fixed-term contract will continue if not terminated would be a contradiction to the very definition of a fixed term. There is a definite start date and an end date. The contract would logically end automatically without more otherwise it would no longer be a fixed-term contract.”
It is our view that the reasoning of the Court in respect of fixed-term contracts is that fixed-term contract lapse automatically applies in equal measure to probationary contracts.
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