By Purity Ngigi – Sundays

A recent cursory look at case law has established that an employee’s right not to be unfairly terminated applies in the termination of a probationary contract. 

The employment law requires that upon the termination of employment, an employer must show that the reason for ending the relationship is valid, fair, related to the employee’s performance, conduct, ability, capacity, or relates to the employers’ operational requirements. The employer has the burden of proving that the reasons for termination were valid. 

The employer must also follow the legal procedure while terminating the employment. The process involves notifying the employee of the intention to terminate their job and allowing them to make their representations. 

The employment act has specified that the legal procedure (requiring the right to a fair hearing) does not apply in the termination of probationary contracts. The law only requires an employer or employee to issue a seven-day notice while terminating a probationary contract.

However, the employment law does not exclude the employee’s right to be issued with a valid and fair reason for the employment termination during probation. Therefore, the employer must ensure that the reasons for termination of an employee during probation are valid and fair.

Courts have upheld that it is an employee’s fundamental right not to be unfairly terminated. The constitution has enshrined this right as an employee’s right to fair labour practices. An employer should uphold this right whether the employee is on probation or not unless the employer expressly limits its application during the probationary period. 

Therefore, the employer can limit the duty to give a valid reason for termination during probation by expressly stating so in the agreement. We can help you review your probationary contracts or clauses to this effect.

Please reach out to us should you need our assistance.