Termination of Probationary Contract

Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR  http://kenyalaw.org/caselaw/cases/view/217394/

A. Brief Facts

1. The Respondent advertised in the Daily Nation and Standard Newspapers various positions including but not limited to: Head, Occupational Health Safety and Environment, Senior Human Resource Officers, and Head, Human Resource Organization Design and Development.
2. In October, 2015 pursuant to the aforesaid advertisement of various positions by the Respondent the Petitioners applied for the said positions and in or about December, 2015 the Petitioners received telephone calls and emails from the Respondent inviting the Petitioners to attend interviews on various dates in December,2015 at the Respondents Thika Campus at the Library Board Room at 9.00 a.m.
3. Subsequently and on various dates in or about December, 2015 the Petitioners attended the interviews of the advertised positions and were each and they were called by the Director Human Resource to collect their letters of appointment from the offices of the Respondent where upon they were required, in terms of the appointment letters, to report on duty on 1st of February, 2016, which they complied with.
4. The Petitioners later learnt that the Respondent by a memo had embarked on a process of investigating on how the Petitioners were recruited without disclosing the nature of the memo to the Petitioners thus the Respondent withheld material facts from the Petitioners therefore it suffers from material non-disclosure.
5. On or about 29th April, 2016, the Petitioners received letters of termination of their contracts. Their last date of employment was 30th day of April, 2016 where they were paid 14 day’s salaries in lieu of notice upon clearance with the University in the terms of the employment contracts signed between the Petitioners and the Respondent. The termination of employment of the Petitioners was done during the probationary period and was to take effect on 30th of April, 2016, the date the probationary period was to end.

B. Issues

The material issue for determination in this context, among others, was whether Section 42(1) of the Employment Act is inconsistent with the Constitution hence null and void to that extent.

C. Held

1. Labour rights are part of the Bill of Rights by virtue of Article 41 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.
2. Any legislation therefore which intends to limit or qualify a labour right, ought to be to the extent that the limitation or qualification is reasonable and justifiable in an open and democratic society.
3. The court found no reasonable and justifiable cause in the exclusion, under Section 42(1) of the Employment Act, of an employee holding a probationary contract from the procedural safeguards contained in Section 41 of the Employment Act.
4. The court was of the opinion that practice shows that in the majority of cases, an employee on probation is usually engaged with the management on issues of performance and other issues contained in the probationary employment contract. Therefore, the stipulation that for the period of probation to be extended, the concurrence of the employee must be sought, implies some consultation must take place and issues of concern warranting extension, discussed.
5. The court further found that while conceding that Parliament was permitted to enact legislation to give effect to the Constitution, such enactment should be done without undermining or ousting the provisions of the Constitution. Denial of redress or violation or infringement of a right or fundamental freedom in the Bill of Rights was therefore contrary to the Constitution hence null and void.

D. Implication  

1. Section 42(1) of the Employment Act, 2007 in so far as it excludes employees having probationary contracts from the provisions of Section 41, it is inconsistent with Constitution Articles 24 (limitations of rights and freedoms), 41 (fair labour practices) and 47 (fair administrative action) of the Constitution. Thus Section 42(1) of the Employment Act is rendered null and void.
2. For context, Section 41 of the Employment Act requires that upon termination of a contract, the employer shall 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.
3. Section 41 further requires that an employer shall, before terminating the employment of an employee or summarily dismissing, hear and consider any representations which the employee may choose to make.
4. Bearing the foregoing and until Section 42(1) is amended by Parliament or this decision is other challenged or overturned, it is our recommendation that employer should subject employees under probationary contracts to fair and open hearing, upon termination as prescribed in Section 41 of the Employment Act.