It's unconstitutional to fire staff on probation at will, court rules

Industrial court judge justice Monica Mbaru. [Fidelis Kabunyi, Standard]

A law allowing employers to kick out employees under probation without explaining why they are dismissing them is unconstitutional.

The Labour Court found that Section 42(1) of the Employment Act, 2007 takes away the right to a fair hearing as it does not give the employee an opportunity to shop for a union representative, or an employee to plead his or her case, hence against the supreme law.

The three-judge Bench composed of Justices Monica Mbaru, Jorum Abuodha and Linnet Ndolo observed that the section was discriminatory because “apprentices and indentured learners” enjoy the benefits of other employees, but not employees under probation.

“Under Section 2 of the Employment 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,” said the judgment read by Justice Mbaru.

“Therefore a reading of Section 41 together with the implicit provisions of Section 42(2) renders illogical the provisions of Section 42(1),” the judges ruled.

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

The case was filed by seven former Mount Kenya University employees against the university and the Attorney General.

Monica Munira, Janis Makena, Milka Kiura, Frankline Kiogora, Pius Mundani and Lorraine Wambita lamented that they were fired on April 30, 2016 on the date the probation period was to end.

According to their lawyer Okweh Achiando, Section 42(1) is draconian in its application in that the employer can dismiss an employee at whims during the probationary period.

The court heard that on September 30, 2015, Mount Kenya University advertised for three positions -- head of occupational health safety and environment; senior human resource officers; and head of human resource organisation design and development

In December of the same year, the seven were among those interviewed for the positions and qualified. They were issued with letters requiring them to report on February 1, 2016.

They received sacking letters on April 29, 2016, requiring them to exit the following day when they were to complete the probation period.

Achiando argued that before his clients joined Mount Kenya University, they were in the employment of various organisations with good salaries.

“Termination without reason, which was the case here, should not be permitted. Petitioners’ rights were violated in that their employment record has been sullied and they have been exposed to mental and psychological torture and suffered severe loss and damage in their careers,” Achiando argued. The university did not respond to the case.

The AG, on the other hand, defended employers arguing that they had a right to terminate probationary contracts without ascribing reasons.

According to him, the probationary period was for an employer to assess an employee’s suitability and allow termination if the employee is found wanting.

Although the court declared Section 42(1) to be unconstitutional, they declined to award the seven damages, noting that Mount Kenya University followed the law.

They also observed that although several laws have been declared unconstitutional by the courts, they have not been amended or repealed by parliament. According to the judges, the invalidated laws remain booby traps to citizens who may not be aware of the development.