There has been a flurry of recent employment law case law involving probationary contracts as a result of a variety of judgements from various courts with related jurisdictions. When giving legal advice to clients or defending a case in court, this perilous scenario effectively puts legal practitioners in a difficult predicament since it unsettles the law, generates confusion, and makes it difficult for practitioners to render advise to clients or defend them adequately before a court of law.
In order to avoid undermining the legislative intent and replacing the current legal jurisprudence, the Employment Act should be seen as creating a balance between protecting both employers and employees, at least in equal measure.
A probationary contract is, by definition, an employment agreement that specifies this in writing and is not for a period longer than twelve months, in whole or in part. Section 45 (3) of the Employment Act granted an employee who had consistently worked for his employer for a period of not less than thirteen months the right to complain of wrongful termination before the courts threw a wrench in the works. This meant that an employee under a probationary contract would not be able to file a complaint against their employer for unfair termination purely based on the fact of the term of their employment, that is, less than 12 months. A safeguard was provided by Section 45(3) of the Employment Act by shielding the employer against all types of claims of this nature and also protecting the judicial system from a barrage of labor-related lawsuits.
It seems that Section 42 of the Employment Act on termination of probationary contracts ousts the provisions of Section 41 on the right to be heard and reasons given before termination of employment. In the matter of Samuel G Momanyi v Attorney General & Anor  e-KLR, Samuel G. Momanyi had completed his probationary period but had however only been employed for 11 months and 27 days when he was fired. He filed a claim with the Employment and Labor Relations Court, but part of it was rejected on the basis of a preliminary objection since he hadn’t been employed continuously for 13 months, which is required to qualify for standing to pursue an unjust termination claim. He hurried to the High Court after being outraged by the Employment and Labor Relations Court’s ruling and filed a constitutional petition, asking for a declaration that section 45 (3) of the Employment Act is unconstitutional because it violates Articles 28, 41 (1), 47, 48, and 50 (1) of the Constitution, among other things.
The petitioner argued that section 45(3) of the Employment Act is unfair and that there is no special reason why an employee with 13 months of employment should be allowed access to the doors of justice but not any other employee with less of an employment term. Section 45(3) of the Employment Act was declared unconstitutional by the learned judge after the Attorney General, who would have been crucial in representing Parliament to the court neglected to respond to the petition.
Even though he was not on probationary terms at the time, Justice Lenaola was the first to question and muddle the legislative intent with regard to the waiting periods for employees to exercise certain rights under the Employment Act. However, probationary contracts are significant because an employee under a probationary contract is one who has worked for 12 months or less and would often be barred from filing a lawsuit under section 45 (3) of the Employment Act for wrongful termination.
In the case of Monica Munira & 6 Others v Mount Kenya University; Attorney-General (interested party) 2021 eKLR declared Section 42 of the Employment Act unconstitutional on the basis that it undermines the rights of employees serving probation to be heard and to be given reasons for termination of their contracts. There were however divergent jurisprudence in cases that had previously stated that Section 42 did not take away the obligation of compliance with Section 43 and 45 which require valid reasons to be given prior to termination of probationary contracts. Mercy Njoki Karingithi case outlined below is one such example.
There was some unease in the Employment and Labor Relations Court after Justice Lenaola’s ruling in the Samuel G. Momanyi case (above). For instance, in Mercy Njoki Karingithi v. Emrald Hotels Resorts & Lodges Limited  e-KLR, Justice Stephen Radido of the Employment and Labor Relations Court found that an employee who was on probationary contract and had worked two days suffered an unfair termination. Justice Radido however expressed his displeasure with the earlier decision in the Samuel G. Momanyi case as follows:
“I have my doubts whether the declaration (of unconstitutionality) presents the correct legal position as to whether the termination of the contract is subject to Article 47 of the Constitution (right to fair administrative action).”
“I must also note that the qualifying period of 13 months to allege unfair termination are replete in statutes of many jurisdictions but since the declaration was made by a court of concurrent jurisdiction with the High Court (but in employment disputes) and because the declaration had a polycentric effect and the need for certainty in legislation there would be no utility in reaching a contrary conclusion or discussing the issue any further here.”
The High Court’s ruling by Justice Lenaola is a break in the Employment and Labor Relations court’s wheel of precedent. Sadly, the Court of Appeal has never addressed this question regarding section 45(3) of the Employment Act because no appeal in the Samuel G. Momanyi case has ever been filed. In fact, the Court of Appeal appears to have thrown in the towel in the case of Nation Media Group Ltd v. Onesmus Kilonzo  e-KLR amid this jurisprudential turbulence. The Court of Appeal stated that:
‘As a matter of sound public policy, judicial resources should not be employed to decide abstract, hypothetical and academic cases except in certain circumstances. In my view, a court’s decision on the issue raised will not authoritatively resolve the interpretation of section 45 (3) and its decision will merely be advisory.”
“An authoritative decision of this court should await an adequate, developed and concrete case of unfair termination more so because the ELRC has the competence and jurisdiction to resolve the constitutional question untrammelled by the decision of the High Court in Momanyi’s case.”
The import of the Monica Munira case for employers is that employers must now comply with the two-pronged test for fairness/lawful termination during probation as required by Section 42 of the Act, just like any other employee, that is they must exhibit substantive justification and procedural fairness. Employers should also ensure that they have mechanisms in place for assessing the suitability and performance of employees during the probation period in order to ensure that they meet the substantive justification test, in addition to the requirement for procedural fairness in the event that they need to terminate an employee on probation.
Whereas this is not the first decision on Section 42 of the Act, it is notably the first that has conclusively found this section of the Act unconstitutional to the extent that it takes away the legal safeguards available to employees under Section 41 of the Act, and further, it is the latest decision, having been issued in 2021. Therefore, unless the case is overturned on appeal, it is likely to dominate the discourse on termination of employees who are under probation, for the foreseeable future.
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