Section 41 (1) of the Employment Act No. 11 of 2007, Laws of Kenya (“the Act”), distinguishes the termination of probationary contracts from general employment contracts. By virtue of Section 41 (1) of the Act, should an employer desire to terminate an employee who is on probation on grounds of misconduct, poor performance or physical incapacity, the employer is not obliged to explain to the employee the reason for which they are considering termination. Further, by virtue of Section 41 (2) as read with 42 (1) of the Act, the employee is not entitled to a hearing before termination.
In the case of Nairobi ELRC Petition number 94 of 2016; Monica Munira Kibuchi & 7 others versus Mount Kenya University and Attorney General (as Interested Party) the Petitioners challenged the constitutionality of Section 42(1) of the Act. The Petitioners argued that Section 42(1) of the Act is inconsistent with articles 24, 41 and 47 of the Constitution of Kenya 2010 (“the Constitution”), which restrict the limitation of constitutional rights, provide for a right to fair labour relations and guarantee fair administrative action respectively.
The constitutionality of these provisions have been challenged previously, in the cases of Danish Jalang’o versus Amicabre Travel Services (2014) eKLR, John Muthomi Mathiu versus Mastermind Tobacco (K) Ltd (2018) eKLR, and Evans Kiage Onchwari versus Hotel Ambassadeur Nairobi (2016) eKLR. One of the issues that these courts have addressed is whether the impugned provisions of the Act are inconsistent with the provisions of the Constitution. The challenge that some of the courts have considered is whether the safeguards of an employment contract should extend to probationary contracts, considering that on one hand, an employee’s employment has yet to be confirmed while on the other hand, an employee’s position of employment has been confirmed.
In Petition number 94 of 2016, a three-judge bench affirmed that Article 47 of the Constitution promotes fair administrative action for all and anyone whose rights or fundamental freedoms are likely to be affected by administrative action has a right to be given reasons for the action. The judges agreed that Article 47 is incorporated in Section 41 of the Employment Act, which envisions that an employee will be given reasons for termination and a hearing before such termination. The judges also found that the definition of an employee as per Section 2 of the Employment Act includes a person employed for wages or salary, including an apprentice and indentured learner, and does not segregate an employee under a probation contract. Thus the three-judge bench held that Section 42 (1) of the Employment Act is inconsistent with Articles 24, 41 and 47 of the Constitution in so far as it excludes an employee holding a probationary contract from the safeguards of Section 41 of the Employment Act.
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