Importance of Probation in Employment
Employment contracts are governed by the Employment Act, 2007 (the Act). The Act provides an option for employers to place their new employees on probation before the confirmation of employment to ascertain their suitability and capability for the assigned role or position.
As a rule, a probationary period should not be for a period of not more than six (6) months, however, it can be extended for a further six (6) months with the consent of the concerned employee. This means that the probationary period cannot exceed an aggregate of one (1) year.
In the Kenyan case of Benjamin Nyambati Ondiba vs. Egerton University  eKLR, the court held that “an employer puts an employee on probation so as to be able to assess his performances and capability within the workforce and the essence of section 42 of the Employment Act, 2007 is to allow the employer terminate the contract of service less time where the employee’s performance should be found wanting.”
in the case of Danish Jalango & Another versus Amicabre Travel Services  eKLR, the court held that “an employee whose contract is subject to probation under section 42(2) of the Employment Act, 2007 can be terminated without the application of the requirements of section 43 and 45 of the Act with regard to procedural and substantive justification.”
The position on probation has been that an employer could terminate an employee during the probationary period without cause or subjecting the employee to a hearing. For instance, in the case of Danish Jalango & Another versus Amicabre Travel Services  eKLR, the court held that “an employee whose contract is subject to probation under section 42(2) of the Employment Act, 2007 can be terminated without the application of the requirements of section 43 and 45 of the Act with regard to procedural and substantive justification.”
However, there has been a recent development on the issue of termination of probationary contracts in Kenya.
In the recent decision of the Employment and Labour Relations Court in case of Monica Munira Kibuchi & others v. Mount Kenya University (2021) eKLR the Court has now clarified that employers must subject employees to a fair hearing and process prior to terminating their employment during probation.
The Court began by highlighting the provisions of section 41 and 42 of the Act. Section 42(1) of the Act provides that, “The provisions of Section 41(1) shall not apply where a termination of employment terminates a probationary contract.” Section 41(1) of the Employment Act provides for substantive and procedural fairness during termination of employment.
In its analysis, the Court was guided by the Code of Good Practice as incorporated into the South African Labour Relations Act 66 of 1995 (the Code) provides for probationary employees. It states that the purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. Under the Code, an employer ought to provide an employee reasonable evaluation, instruction, training guidance or counselling to allow the employee to render a satisfactory service. If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards.
The Court also analysed the Canadian position and referred to Canadian case of Nagribianko V Select Wine Merchants Ltd 2016 ONSC 490 where the court held that: “the word probation in an employment contract has a clear and unambiguous meaning and the status of a probationary employee has acquired a clear meaning at Common Law. Unless the employment agreement specifies otherwise, probationary status enables an employee to be terminated without notice during the probationary period if the employer makes good faith determination that the employee is unsuitable for permanent employment.”
The Court found that the Canadian and South African positions on probation where diametrically different.
Whereas the South African jurisprudence is more elaborate and direct on the substantive and procedural fairness over probationary employees, the Canadian and Kenyan positions seem to be that unless the contract provides for it, an employer can terminate a probationary contract without a hearing or assigning a reason.
The Court held that under Section 2 of the Act, an employee is defined to mean a person employed for wages or salary and includes an apprentice and indentured learner. Although the Act defines a probation contract in relation to the duration of the contract it does not segregate or isolate a person employed under a probationary contract from the general definition of an employee. Therefore, a reading of Section 41 together with the implicit provisions of Section 42(2) renders illogical the provisions of Section 42(1) which disregard substantive and procedural safeguards in probationary contracts.
It was also the Court’s holding that it does not make sense to accord an apprentice and indentured learner who are included in the definition of an employee under Section 2, the substantive and procedural safeguards but deny the same to an employee simply because they hold a probationary contract.
Consequently, the Court found that Section 42(1) insofar as it excludes an employee holding a probationary contract from the provisions of Section 41 of the Employment Act providing for procedural and substantive fairness, is inconsistent with Articles 41 and 47 of the Constitution hence null and void. This means that going forward employers should provide employees under probation with substantive and procedural safeguards prior to terminating their employment contracts.
In conclusion, while it is crucial for an employer to place employees on probation at the commencement of their employment, it is equally essential to provide the same employees with safeguards for a fair and procedural hearing when terminating their employment contracts during probation.
If you have any queries relating to the above or any aspect of employment law, please do not hesitate to contact James Wairoto at [email protected]. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.September 20, 2021