In the Employment and Labour Relations Court in Nairobi Petition number 94 of 2016 Monica Munika Kibuchi & 6 Others vs Mount Kenya University & Another, the Court declared that Section 42(1) of the Employment Act which excludes application of section 41 when terminating probationary contracts to be unconstitutional.
The two sections provide:
- Notification and hearing before termination on grounds of misconduct
(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.
- Termination of probationary contracts
(1) The provisions of section 41 shall not apply where a termination of employment terminates a probationary contract.
In coming up the judgement, the courts relied on the South African and Canadian Jurisprudence. The court stated that Article 47 of the Constitution of Kenya 2010 confers on every person the right to administrative action, it went further to state that the spirit of Article 47 has been incorporated in the Employment Act in Section 41. The court also noted that labor rights are part of the Bill of Rights by virtue of Article 41 of the Constitution, and which cannot be limited according to Article 24(1) of the Constitution of Kenya. The court also expressed their concern that it does not make sense to accord an apprentice and indentured learner who is included in the definition of an employee under section 2, the procedural benefits of section 41 but deny the same to an employee simply because they hold a probationary contract.
According to the court, any legislation which intends to limit or qualify a labour right, ought to be to the extent that the limitation or qualification is reasonable and justifiable in an open and democratic society. Together with inconsistencies amongst section 42(1),42(2) and 41, the court held that insofar as section 42(1) exclude an employee holding a probationary contract from the provision of section 41 of the same Act, is inconsistent