Holders of Probationary contracts are now entitled to substantive and procedural processes prior to the termination of their contracts

The Employment and Labour Relations Court (“the ELRC”) has declared Section 42 (1) of the Employment Act, 2007 (“the Act”) as unconstitutional. The court found that the exclusion of probationary contracts from the requirements of section 41 of the Act, which obligates employers to give reasons and subject employees to a fair process prior to termination of their contracts, as being inconsistent with among others Articles 24, 41, and 47 of the Constitution.

In the Judgment that was subject of ELRC Petition No. 94 of 2016 – Monica Munira Kibuchi – versus – Mount Kenya University, the three-judge bench found it illogical that section 42(1) of the Act precluded holders of probationary contracts from the substantive and procedural process, while the Act itself does not segregate a person employed under probation contract from the general definition of an employee as defined under section 2 of the Act. Holding that labour rights are part of the Bill of Rights under the Constitution, the judges noted that there were no justifiable reasons to limit the rights of holders of probationary contracts including their to right fair administrative actions under Article 47 of the Constitution, the spirit of which, the court found “has been incorporated” under section 41 of the Act.

With this declaration, employers intending to terminate probationary contracts, now have an obligation to supply employees with the reasons and subject them to a fair process including permitting the employees to submit representations in the presence of another employee or a shop floor union representative of his choice.