TERMINATION OF EMPLOYEES ON PROBATIONARY CONTRACT UNDER THE EMPLOYMENT ACT, 2007

The High Court recently handed down a judgment in Petition No. 94 of 2016 – Monica Munira Kibuchi v Mount Kenya University declaring section 42 (1) of the Employment Act, 2007 unconstitutional. The above section applies to termination of employees under probationary contracts.

In reaching this decision, the Court juxtaposed the statutory provisions of section 41 with those of section 42 (1) of the Employment Act. Briefly, section 41 of the Act provides for termination of employment on grounds of misconduct, poor performance or physical incapacity. Accordingly, where an employer considers terminating an employee on those grounds, then he/she is required to:

1. Explain to the employee reasons for considering the termination; and

1. Allow the employee to have a right to a representative of his/her choice or another employee present, during such explanation.

The above section clearly and succinctly accords an employee the right to a fair hearing and administrative process as provided for under the Constitution and the Employment Act. 

However, in contrast, section 42 (1) provides that an employee under probationary contract is not entitled to the administrative due process contemplated in section 41. The above section reads as follows: “The provisions of section 41 shall not apply where a termination of employment terminates a probationary contract”

In context, this means that: An employer can terminate the employment of an employee under a probationary contract at will, without affording him/her a fair hearing as stipulated under Section 41(1) of the Employment Act.

To that extent, the court found that the consequential effect of Section 42 (1) was as follows: –

1. It excludes and ousts an employee from the procedural fairness requirements under Section 41 as far as probationary contracts are concerned.

1. It allows an employer to terminate an employee without any regard to procedural fairness.

1. It violates the labour and employment rights of an employee under a probationary contract.

The same reasoning and findings can be traced in Evans Kiage Onchwari V Hotel Ambassadeur Nairobi [2016] eKLRwhere Hon. Justice Ndolo held that:

“Article 41 of the Constitution of Kenya guarantees employment and Labour rights for all. “To my mind, these rights may only be limited to the extent that is permitted under Article 24 of the Constitution. To limit enjoyment of a right by the mere reason of the length of service does not in my view meet the threshold of Article 24” 

Against this backdrop, the Hon. Judge proceeded to find that Section 42(1) of the Employment Act, 2007 was unconstitutional for it: denies an employee under probationary contract the right to fair hearing as guaranteed under Section 41 of the Employment Act, 2007. Thus, discriminates upon such an employee.

PREVIOUS PRONOUNCEMENTS BY THE HIGH COURT

There has been noticeable inconsistency in terms of constitutionality of section 42 (1) of the Employment Act from different Courts.

On the one hand, some Courts have found the above section to be unconstitutional as it limits the right to fair hearing of an employee under probationary contract, while on the other hand, courts have stated that there is no discrimination or ousting of a right to a fair hearing. And that an employee under a probationary contract is not afforded the same statutory safeguards as a fully confirmed employee.

For example, in Danish Jalang’o v Amicabre Travel Services [2014] eKLR it was found that an employee under probationary contract “has no expectation of substantive justification or fairness of procedure outside what the probation clause and section 42 of the Employment Act grants……. the law relating to unfair termination does not apply in probationary contracts”

Similarly, these views were echoed by Hon. Justice Nzioki wa Makau in the case of John Muthomi Mathiu V Mastermind Tobacco (K) Ltd [2018] eKLR where he found as follows: “the probationary part of a contract of employment is the period where an employee is tested and cannot, therefore, anticipate the same safeguards to be available for him/her like for an employee already confirmed to the position”

However, we respectfully find the two decisions flawed for the reasons that:

1. An employee is defined under the Employment Act, 2007 as a person employed for wages or salary, and includes an apprentice and indentured learner; and

• The Act does not distinguish between an “employee” under a probationary contract from the general definition of an employee. Hence, the only distinction is in respect to the length or duration of the employment contract.

WHY IS THIS DECISION IMPORTANT?

1. This decision re-emphasizes the need for employers to follow due process and the statutory guidelines when terminating employees under probationary contracts.

• It affords all employees (whether on probationary contracts or not) equal protection under the law.

• Employers are required to give reasons for termination and guarantee a fair hearing, regardless of the nature of the employment contract.  

CONCLUSION

It is our considered opinion that the declaration of section 42 of the Employment Act, 2007 as unconstitutional to the extent that it limits the rights of an employee to a fair hearing, is sound within the provinces of the Constitution, particularly, Article 10, 24, 41 and 47 of the Constitution of Kenya.

This decision is welcomed, and we hope the office of the Attorney General shall initiate the legislative amendments to ensure that Section 42 (1) of the Employment Act, 2007 equally guarantees an employee under a probationary contract similar statutory safeguards as provided under section 41 of the said Act.