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Probationary contracts cannot be terminated without justification;Petition No. 94 of 2016

A three bench Judge of the Employment and Labour Relations Court, has declared Section 42 (1) of the Employment Act to be unconstitutional in that it is inconsistent with articles 24, 41 and 47 of the Constitution of Kenya.

Section 42(1) of the Employment Act provides:

"the provisions of section 41 shall not apply where a termination of employment terminates a probationary contract."

The provisions referred to in section 41 above provide:

"Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation."

Current Position

The current position under Section 42(1) of the Employment Act is that an employer has the discretion to terminate without justification a probationary contract after giving 7 days’ notice or payment of seven days’ wages in lieu of notice. In comparison, confirmed employees are given sufficient protection under Section 41 of the Employment Act in that clear and written grounds have to be given and an employee must be given an opportunity to respond to the allegations as raised in the grounds for termination before their employment is terminated.

The reasoning behind the proponents of termination of probationary contracts without just cause is the probationary part of a contract of employment is the period where an employee is tested, and they cannot therefore anticipate the same safeguards to be available for them like for an employee already confirmed to the position.

The reasoning

The court in its reasoning however found fault with this school of thought and Section 42 (1) of the Employment Act as it is contrary to Article 47 of the Constitution which confers on every person the right to administrative action that is among others, reasonable and procedurally fair. Further if a fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. The court further reasoned that labour rights are part of the Bill of Rights by virtue of Article 24 of the Constitution.

Article 24 of the Constitution prohibits the limitation of a right or a fundamental freedom in the Bill of Rights except by law and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The court also noted that it is not logical to accord apprentices and indentured learners the procedural protections in Section 41 but deny the same to an employee on a probationary contract.

The court concluded by finding no reasonable and justifiable cause in the exclusion of an employee holding a probationary contract from the procedural safeguards contained in Section 41 of the Employment Act and held that Section 42(1) insofar as it excludes an employee holding a probationary contract from the provisions of Section 41 of the Employment Act, is inconsistent with Articles 41 and 47 of the Constitution hence null and void.


The implications of this decision is that in terminating probationary contracts, employers must comply with Section 41 of the Employment Act and can no longer terminate a probationary contract without written justification or according a probationary employee an opportunity to be heard.



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