Court bars employers from sacking staff on probation without explanation

A three-judge bench of the Employment and Labour Relations court has annulled a law that allows employers to sack employees who are on probation without following due process.

The bench comprising of Justices Monica Mbary, Joram Abuodha and Linnet Ndolo has declared that Section 42 (1) of the Employment Act (2007) is inconsistent with the constitution for excluding employees with probationary contracts from the category of workers who deserve to be given reasons of being fired. The judges stated that the said law is hence null and void.

Section 41 of the Act provides that an employer should, before dismissing an employee on grounds of misconduct, poor performance and so on, explain to the employee the reason for which the employer is considering termination.

It also provides that the employer should, before terminating the employment of such employee, consider any representation the employee and his representative may make.

However, in Section 42 (1) a probationary employee is excluded from the substantive and procedural processes.

The court said there is no reasonable and justifiable cause in the exclusion of an employee holding a probationary contract from the procedural safeguards contained in the Employment Act.

According to the judges, it does not make sense to accord an apprentice and indentured learner who are included in the definition of an employee, the procedural benefits involved in termination but deny the same to an employee simply because they hold a probationary contract.

"Apart from life and land ownership, employment ranks among the most emotive issues in a person’s life. Failure to secure a job and or loss of one has a direct relationship with a person’s confidence, dignity and place in society," said the judges.

The court urged the Attorney General to review and initiate necessary legislative repeal or amendment of the statute or sections they declared unconstitutional.

"The court is aware that several statutes or sections have been declared unconstitutional by the courts in our judicial hierarchy yet no corresponding legislative amendment or repeal has followed. They therefore remain booby traps to citizens who may not be aware that the courts have pronounced them invalid," said the court.

The ruling, which is a development of Kenya's Employment Law, stemmed from a petition filed by seven former workers of Mount Kenya University challenging their dismissal from employment in 2016 during probationary period.

The petitioners told the court that they were not given a fair hearing and that to date they had not been given any report or brief at all on the preliminary investigations which were conducted by the then employer leading to termination of contracts.

Apart from seeking a declaration that Section 42 (1) of the Act os unconstitutional, they also sought a compesation of Sh1 million each for failure by the university to accord them a fair hearing thereby causing them loss of employment.

They also wanted a declaration that they are entitled to the payment of the balance of their contractual periods.

However, the court declined to declare that termination of the petitioners' contract was illegal because the university relied on the provisions of Section 42 (1) of the Employment Act as enacted by Parliament, which expressly excluded persons holding probationary contracts from the procedures of dismissal.

"Mount Kenya University honestly believed and applied the law as it was prior to the pronouncements contained in this judgment. It would therefore be unjust to condemn it for applying the law as enacted by Parliament even if that law is inconsistent with the Constitution," stated the judges.

The court said the university could not be faulted for applying the disputed law.