The probation of an employee is generally governed by a probationary contract. Section 2 of the Employment Act defines a probationary contract as “a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period;”
Probation allows the employer to assess objectively whether a new employee is suitable for the job taking into account their capability, skills, performance, attendance, and general conduct.
What is the duration of probation and can it be extended?
Under Section 42(2) of the Employment Act, a probationary period shall not exceed six months but it may be extended for a further period of not more than six months after deliberation with the employee.
This in other terms means that the probationary period can be extended as long as the entire probationary period does not exceed an aggregate of one year. Extending a probationary period gives the employee more time to improve his/her performance based on feedback given by the Employer.
It is however important to note that a probationary contract can only be extended on grounds of non-performance or unsuitability of an employee for the job. The court, in the case of Wilson Simiyu Vs Chairman B.O.G Friends School Bokoli & Another (2016) (eKLR) reiterated this position by stating that extension of a probationary period can only be on the grounds of non-performance or non-suitability for the job, both of which cannot be presumed, but must be brought to the attention of the employee. This implies that some consultation must take place between the Employer and the employee, and issues of concern warranting extension, are discussed and agreed upon by both parties.
How do I terminate an Employee if I am not satisfied with their performance during the Probation?
The issue of whether terminating an employee on probation amounts to unfair employment has been a controversial one that has had the courts divided over the years.
Section 42(1) of the Employment Act provides that “a party to a contract for a probationary period may terminate the contract by giving not less than seven days’ notice of termination of the contract, or by payment, by the employer to the employee, of seven days’ wages in lieu of notice.”
In most cases, employers would terminate employees on probation either on issuance of a 7day termination notice or for some, without any notice and without following any disciplinary procedure.
Section 41 of the Employment Act on the other hand, provides that an employer shall before dismissing an employee on grounds of misconduct, poor performance, and so on, explain to the employee the reason for which the employer is considering termination and that the employer shall before terminating the employment of such employee consider any representation such employee and or his representative may make.
However, recently, in the case of Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR a three-Judge Bench declared Section 42(1) of the Employment Act null and void to the extent that it excluded an employee holding a probationary contract from the provisions of Section 41 of the Employment Act.
Conclusion
In as much as probationary contracts are excluded from the application of Section 41 of the Employment Act which provides for the steps an employer should follow before terminating an employment contract, the courts have upheld the position that the procedure provided under Section 41 must be followed by employers when terminating employees on probation. This is essential in providing employees who are under probation with safeguards for a fair and procedural hearing before termination.
It is therefore crucial that before an employer terminates an employee on probation, he/she must explain to the employee the reason for which the employer is considering termination and the employee or a representative of the employee must be given the opportunity to defend or make their own presentations before the decision is made.
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Disclaimer
This article is for informational purposes only and should not be construed as legal advice.
