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probation 2Skeleton staff…

Being the Thursday before a long weekend the office is practically empty, most people have taken advantage of the long weekend to take some of their leave days. That is, except for Naomi who is now used to being the ‘skeleton office staff’ while everyone else is on leave.

Each time she applies for leave, her request is denied on the grounds that she is not entitled to take leave while on probation.

She has been on probation for 8 months and there is no communication forthcoming from HR on whether or not her employment will be confirmed.

Type of contract

According to Naomi’s contract, she was to be on probation for the first 3 months, after which she was to be informed on whether or not she had successfully completed her probation.

8 months on and still no communication regarding her status.

Her fate

2 weeks later, on a Friday, HR breaks the bad news to Naomi; HQ’s decision is that she is not a good fit for the position. She is to receive 7 days’ salary in lieu of notice and she is asked to hand over the office property in her position as that is her last day in employment.

No way…that can’t be legal

An employer has two options – to give a probationary contract or to give a normal contract with a probation period at the start.

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.’

Such a contract may be terminated by giving 7 days’ notice or by paying 7 days’ salary in lieu of notice. In addition, the employer need not give a reason for terminating the contract and the termination procedure does not apply.

If an employer chooses to give a normal contract with a probation period at the start then such a contract cannot be lawfully terminated by giving 7 days’ notice or paying 7 days’ salary in lieu of notice.

professional-disciplinary-hearings-640x270

If the termination is on the grounds of poor performance or misconduct, an explanation should be given as to why the employer is considering terminating the contract and a disciplinary hearing should be accorded.

Both at the explanation meeting and at the hearing, the employee has the right to be accompanied by a fellow employee or a shop floor union representative. There are many other very important steps in this process but this is a summary.

HR informed Naomi that according to HQ, her performance was not as sterling as was expected and it appeared that she had inflated her capabilities at the interview.

Since Naomi’s termination was performance based, the termination procedure indicated above ought to have been adhered to.

The termination notice period is determined by the duration after which an employee is paid. If one is paid weekly then the notice should not be less than 1 week; if one is paid monthly then the notice should not be less than 1 month. It follows, therefore, that since Naomi was being paid monthly, she ought to have received not less than 1 months’ notice or pay in lieu.

I have seen numerous contracts that contain a provision for termination of an employee on probation and who is paid monthly by giving 7 days’ notice or paying 7 days’ salary in lieu of notice; this is unlawful.

How about leave?

On the issue of leave, the Employment Act provides that where employment is terminated after the completion of 2 or more consecutive months of service during any 12 months’ leave-earning period, the employee is entitled to not less than one and three-quarter days of leave with full pay. Having worked for 8 months, Naomi had accrued leave and she ought to have been paid the cash equivalent.

keep-calm-and-mitigate-9Mitigate your damage

Naomi was devastated by the loss of her job. She explained to her husband that she needed a time out from employment and that she would not seek alternative employment until she felt better. 9 months later, at the prodding of her husband, Naomi secured another job.

1 year after the termination, Naomi decided to sue the organization for the unlawful and unfair manner in which she was handled. During her cross-examination by the organization’s advocate, it came out that Naomi had taken no steps to seek alternative employment for a period of 9 months.

In the Judgment, the Judge recognized that Naomi’s termination was unfair and unlawful and that she was entitled to compensation by way of damages. The Judge, however, only awarded her 3 months’ salary as damages on the basis that she ought to have mitigated her damage by seeking alternative employment and that 3 months is what the judge considered a reasonable time to obtain alternative employment.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. She is a repository junkie and a lover of editing.

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Comments

  1. Sylvia says:

    Good morning Madam ,

    Thank for your information always

    Below is part of employment letter given to our employees and so am concerned about the probation clause .If our probation period is 6 months and an employee has so far been issued with two warning letters for poor performance and misconduct and we want to release him by giving a probation termination letter,
    1. Are we supposed to follow the normal procedure of disciplinary hearing ?
    2.We have extended his probation period by two weeks because he took company money without authorization which we recover every month and erroneously was overpaid last month money which we want also want to recover this month.
    3.The employee handles cash on daily basis since he is a pump attendant and am afraid if I give probation termination notice the employee can collect a day’s cash and just disappear.

    My question is

    Should I follow normal disciplinary hearing procedure
    After probation extension period lapse how best can I handle the employee with or without notice

    RE: OFFER OF EMPLOYMENT

    Further to your application, I am pleased to offer you the position of a pump attendant in our company on the following terms and conditions of service:-

    Your effective date of this appointment shall be 15th September, 2016.

    1. Probation
    Your employment is subject to the satisfactory completion of a six month’s probationary period after which an appraisal will be carried out and advised accordingly. During this period your employment may be terminated by giving two week’s notice either by the firm or by yourself, or two weeks wages in lieu of notice.

    1. Anne Babu says:

      Only a probationary contract – a contract for the period of probation only – can be terminated without following the termination procedure and without giving reasons. If this was not a probationary contract, you have to follow the termination procedure otherwise you may be liable for unfair dismissal.

      1. Jacinta says:

        Hi Ann

        Can an employee sue for unlawful termination 1 year later given that he was terminated within the probation period but the contract was not probationary and termination process was not followed

        1. Anne Babu says:

          Yes, you have up to 3 years to sue.

      2. may says:

        What is a probationary contract and where is there a provision for this in the law? Do you mean to say that employers should have two contracts, one probationary, followed by fixed/permanent contract upon confirmation? Does this then mean employers do not need to confirm employees on probationary contracts, as this is more or less a fixed term contract ? There seems to be contradiction, what would be the point to give 7 days notice if the probation will anyway end. No confirmation will automatically mean the contract ends, how is this different from a fixed contact. iunderstand it’s a legal requirement to give notice and it’s also the humane thing to do.

        1. Anne Babu says:

          The probationary contract is catered for in the Employment Act, 2007. The requirement to give notice applies where one wants to terminate the contract before the end of the term. Giving a probationary contract is optional. You can simply go straight to a fixed term/permanent contract. The advantage of a probationary contract is that it is easy to terminate.

  2. Kathy says:

    Hi Ann, thank you for this informative article. My query is that I was employed on Jan 3rd under a normal contract with a probationary period of 6 months. I have decided to terminate my contract as I have received a better job offer and I want to do it legally. My probation should end on 3rd July and i want to leave before then, preferably by the 30th of June. How can I do so without having to pay the company and am I entitled to the last months pay if I leave by end of June? Also, what kind of notice am I legally supposed to give the company?
    Thanks and Regards,

    Kathy.

    1. Anne Babu says:

      You should give the company not less than one months’ notice, meaning if you want to leave by the end of June, you should pay for the balance of the notice period or ask for it to be deducted from your dues or from your accrued leave. Check your contract, some provide for giving of only 7 days’ notice when on probation.

  3. janet. says:

    hey Anne,

    this is the scenario. an employee has been given and has accepted an employment offer subject to 3 months probation period. The employer has come to learn that the employee is also employed in another competitor company and wishes to terminate the employment. what procedure should employer take and the legal implications?

    1. Anne Babu says:

      The employer must follow the termination procedure set out in the Act prior to effecting the termination. Please see the posts we have done on Separation.

  4. Nene says:

    Hi Ann,

    I was in a company in which i had been given a six month probation contract, i gave a one week notice resignation instead of a two weeks notice, I took 7 days of my leave during my contract and according to the contract i was entitled to 21 leave days, the HR informed me that am not entitled for any dues because i owe the company one week. Is this right? Should i pursue the matter through the courts?

    1. Anne Babu says:

      Hi Nene, from what you have said my understanding is that in 6 months you would have earned 10.5 leave days. If you have already taken 7 days then you were left with 3.5 days which means out of the 14 days notice, you owe 3.5 days.

      1. Nene says:

        Thank you Anne for that info.

  5. Alex says:

    Thank you madam Ann for these important article, as I was perusing the web on my phone I discovered it and now I have bookmarked it reference.I believe in this nowadays society,one ought to know his/her rights and the conditions under which a company operates.
    Now regarding employment when one is about to be employed on the basis of 1 month training after which on completion you will get employed, are there any kind of legal documents one is supposed to sight especially when the firm is contract based?

    1. Anne Babu says:

      Thank you for the compliments. You should ensure that you get written communication of the company’s intention regarding training and future employment.

  6. Etienne Mouton says:

    Good day Ann,
    My son is employed at a company in Kenia and is currently still on probation. He considers resigning but his employment contract is silent regarding notice period during probation.
    The contract stipulates that 3 months notice is applicable and that notice during probation are different, but it does not stipulate this.
    The contract is a two year contract.
    Please advise if he can resign giving 24 hour notice?

    1. Anne Babu says:

      He should give one months’ notice but he should confirm with HR before he puts in the resignation because he may be permitted to give a shorter notice period.

  7. James says:

    good one

  8. JNI says:

    Dear Anne,
    I have been with my employer since may 2017 and i have been reading sinister motives since the first month into employment. i was to serve a three months probation period. After serving the probation period, no word came from HR until when i asked and was told a review will be arranged. The review was arranged the third week of November 2017 having stayed for six months now. The review was done but was not concluded until Dec 27th when I was given a letter informing me that my probation has been extended by three months up to 30th Jan 2018 due to unsatisfactory performance.(which contract covered me after the first three month up to review date-November?) Nevertheless, i continued working and after Jan 30th no word and no review was done until March 20th when HR dropped me a mail. The HR said in the mail: In light of the meeting scheduled earlier we have not been able to meet and conclude on your probation. We however came to a conclusion and have feedback in regards to the same.

    The management were not satisfied with your performance during probation and have decided to review your engagement terms from permanent to fixed term contract for Six months effective one month notice from today 20th March 2018. Your employment terms and conditions will remain the same.Please make time to pick your letter from my desk. The happenings here are not consultative and not participatory. My review was not done after Jan 30th, I was not consulted either on change of contract, yet a decision was made, yet in absence of these two a decision was made to change my contract terms. Please advise me on what legal options I have in this scenario considering there are many issues preceding this email from HR that i cant write all here. Has the employer been constructing my dismissal month on month? Please advise via personal email provided

    1. Anne Babu says:

      The unilateral change to the terms of your contract is unlawful. Your employment was deemed confirmed when no word was forthcoming before or immediately after the 3 months probation. As a first step, you should challenge the actions through the company’s internal mechanisms. If that yields no fruit, consider legal action to stop the unlawful action.
      Please take a minute to vote for the blog, we have been nominated in the Best Topical Blog category https://vote.bakeawards.co.ke/vote. Thank you.

  9. Donald says:

    Hi Anne, thank you very much for this forum, it’s really helpful, now, I have a very burning issue in my heart, I met with this lady in October last year, we talked and we agreed I start work in November which I did, the agreement was that we would sign a contract to that effect but all along she kept saying that she wasn’t available until this year February when things started to changing, due to internal miscommunication I failed to show up for work on two occasions, that month I received half the salary I was supposed to get, I received no official communication neither verbally nor through a letter, I tried explaining my case but the management refused to listen to me, all my effort to seek an audience fell on deaf ears so I let that go. Things changed and the management became cold towards me, I continued with work as usual though the conditions were not very friendly, I suspected something was fishy when I was told to hand over the company’s property, I enquired about it and I was told it’s the companies normal procedure, so end month comes and I go to the check my balance and my salary has not been paid, my rent is due and all my other bills unpaid, I contact the person in charge of making the payments and she tells me that she was instructed not to pay me nor update my nhif & nssf, I decided to call the management for no communication had be made to me via any channel and the arrogance I got was dumbfounded, I was actually told and I quote, “nipeleke mahali unataka.” and then she hung up and that’s the last communication I go, all my calls after that have gone unanswered. It’s so painful that the company is using my work to market itselves (I was the official photographer) and here I am I can’t pay my rent.
    What can I do about this? How should I go about it? Is there anyway I can get some compensation for my time? Keeping in mind that the contract was never signed. Please advice Anne, thank you very much.

    1. Anne Babu says:

      Whether or not you have a written contract, your employment rights are preserved. That termination was wrong as you were not given an opportunity to be heard before being terminated and there does not seem to be any valid reason for the termination or for the deduction and non-payment of your salary. I would advise you to see either a labour officer or a lawyer to demand your dues and compensation from your former employer.

  10. Donald says:

    Thank you so much for the advice Anne, much appreciated, my heart is at ease now. Just a quick question, do you by any chance offer this services.

    1. Anne Babu says:

      Yes, my contacts are available on my firm’s website – http://www.abadvocates.co.ke.

  11. Effie says:

    Hi Ann, if i had a one year contract and was on a three month probation which according to Kenyan law im supposed to give 7 days termination notice but I give one day notice should I be paid my salary for that month minus the 7 days notice period that I failed to give?

    1. Anne Babu says:

      If your contract provides for 7 days notice and you only give a day’s notice, you’ll be paid for the days you have worked that month less the 6 days that you owe.

  12. Mwende says:

    Hello Ann,i worked for a school for 8months,my probation period was to be 6months but after 6months no communication was made and I continued working,on employment I was not given a letter or any contract I kept insisting for a contract but on the eighth month i was laid off with no notice but 1month salary,the letter states that my pesmrfomance was unsatisfactory but that came when I exposed the theft and misconduct by the principal to the board,..can I sue?

    1. Anne Babu says:

      If you were not accorded a disciplinary hearing then the termination was unlawful and you have the right to take legal action.

  13. Nancy Mutua says:

    Hi Ann,
    if an employee is employed on probationary contract, is he/she entitled to annual leave?

    1. Anne Babu says:

      Yes, it is pro-rated.

  14. Pauline says:

    Hi Ann is a person entitled to leave days while on probation?

    1. Anne Babu says:

      Yes, leave accrues on a monthly basis.

  15. Ndegwa says:

    Hi Ann, quick one kindly, is an employee who is terminated under a probationary contract entitled to receive a certificate of service? Asante sana

    1. Anne Babu says:

      Yes, every employee is entitled to a certificate of service.

  16. JERUSA ONDISO says:

    Please hide my identity. Good morning, I was employed in a school for two years on permanent terms served with one warning letter,and faced a disciplinary once and issued suspension letter on January 2016 for three months with half pay of which i never collected. In my letter of suspension i was to wait the decision of the full board of which i never received nor appear before the board.Then i got a another job 2017 Feb ON 6 Months CONTRACT then through interview given a position on probation for six months since Sept 2017 and there is no communication.My question is: 1) employment terminated from the school was is legal? 2) is this new job safe without confirmation letter? and is it OK for me to request for a leave because it was written in my appointment letter? 3) what if am served with a dismissal letter after serving 11months of which 6 of probation without notice on basis of absenteeism and not being apologetic during disciplinary(is my colleague)thanks.

  17. Mitchell Mwanyumba Mgendi says:

    Hi Anne, is an employer justified to pay an employee half salary during the probation period and make the employee work 8.30am to 6.00pm Monday to Saturday without paying overtime?

    1. Anne Babu says:

      There is no justification for paying half salary during probation and overtime should be compensated.

  18. Jacob Nga'ng'a says:

    When one duties have not been given back after sick leave what is the right way to handle it

    1. Anne Babu says:

      Take it up with the management. If there are no duties for you, then proper communication should be given on the way forward but you are entitled to the job you were employed to do.

  19. Peter Onchiri says:

    Good evening Madam,

    I finished 12 months in my new company on 16th Oct 2018 and I have not received any information regarding my confirmation. In case of termination do probation terms still apply or permanent terms.

    1. Anne Babu says:

      Strictly speaking you are considered as having been confirmed if there is no communication but if you are desperate to leave, you can try and suggest that probation the notice still applies since there has been no communication from the company.

  20. I was given an internship of one year but was renewed up to four years leter i was told to bring specification of compact full project roads machine of which i did at my own pocket leter they first employed drivers and operators when i was still in showground interviews that they had advertised in motor vehicle instructors transzoia county after my interview they brought two assistants engnear ll of which were placed in store as store keepers where about fourth year they brought operator attendants fourty i was also given new offer of apointment one year with operators attendants after one year it was renewed by chief officer in terms of employment after board sat we heard of chief speach that we have secured 2 years renewal contract leter we have waited now even without pay from may to nov yesterday secretary told my attendants that our contractual renewal letter had a mistake so is it about confermation how can the board repeat on 2 year probation again

    1. Anne Babu says:

      I am unable to answer your question because it is not clear.

  21. Irene says:

    What if your organisation gives 1 year contracts that are ‘probationary’ but they have not been expressly stated on the contract that they are probationary. The offer letter says six months probation period yet its for one year.

    1. Anne Babu says:

      Please re-phrase your question, it’s not clear.

  22. gerald says:

    My contract states to be on a probation of 6 months with a possibility of extension. I don’t understand on which terms this falls. Secondly My salary is okay but commission is structured intenioally that i will only receive them after say an year. Let me explain. I handle corporate sales. I have brought in corporate clients but I need to sign up each individual of the clients to get my commission. Since this will take a while, do i have any redress incase my contract is terminated if incase and on what terms can it be terminated. Can I claim for commission since I know it will add up to much money.?

    1. Anne Babu says:

      Issues of commissions are governed by the terms of the contract, therefore, one needs to be very clear on the terms before signing the contract. The answer to your question depends on what the contract says about when the commission is payable.

  23. Ivy says:

    Dear Anne,

    A colleague of mine has been working in our organisation since May last year. She has 6 months probation. This should have ended in November last year and a review done. Then in December, a review was done which her supervisor mentioned that her performance was not at per. On the probation review sheet, he mentioned that he would not confirm her but to be reviewed until end of December.

    As much as her performance according to him was unsatisfactory, she has not received any formal communication only emails, texts and WhatsApp communication. The supervisor now insists that she should be terminated. The HR set up a hearing for her and concluded that she should be given one more month and if she does not do well, they terminate.

    The supervisor still insists that he would like her terminated immediately since she is on probation. I thought as much as someone is not performing due process should be followed for fair termination. Also, they did not confirm her immediately or communicate to her. Once she began asking after November is when they began caring if she was confirmed or not.

    Also thank you for your forums, they are informative and liberating.

    1. Anne Babu says:

      Thank you Ivy, generally, as long as the person was not issued with a probationary contract- a contract which is only for the period of probation – termination should follow the stipulated termination procedure.

  24. NYAKONDO says:

    Hi,

    I have an employee who started working in nov 2017 as a receptionist.
    She worked in nov and dec 2017 as a reliever working 4 days a week.
    In 2018 she worked jan-june on full time basis.
    July-nov 2018 she worked as a reliever 4 days a week.
    Dec 2018 on full time basis.

    How many days annual leave does she qualify for?
    What other benefits is she entitled to?

    1. Anne Babu says:

      Leave is accrued at 1.75 days a month. You should therefore compute based on months worked. Service pay is only due if the person was not on NSSF.

  25. Lydia says:

    Good morning kindly advise on this.
    I was employed by a local company. I went for training from the 28th Jan ~13th Feb. I was to work for 8 hours a day for 6 days with one rest day. I worked from the 14th~17th of Feb and quit on the 17th due to health and safety reasons. I was never issued any contract but I was told I was on probation for 6months after that my salary would be reviewed.

    1. Anne Babu says:

      Hi, you have not stated what your question is.

  26. Tonie says:

    Hello Ann, i was employed by a company with a 3months probation. At the end of the three months there was no communication if am confirmed or any notive of termination but after 12days of the 4th month thats when i was given termination letter and i was not supposed to report to work. I was paid for the twelve days but no pro-lata leave or “pay lieu of notice” because am aware i was supposed to be given 7days notice but i was not given. Now for the pro-lata leave the hr says i even owe her leave days yet i only used utmost 3days of my leave days. Am i right to say the company still owes me the prolata minus 3days and pay lieu notice.? If so How can i go about demanding the amount? Also the hr leaves out important clauses in the contract which i believe its against the law because they are in the consitution…I will appreciate your feedback.

    1. Anne Babu says:

      You can see either a labour officer or lawyer to demand from your employer. Leave is calculated at the rate of 1.75 days a month. You should get leave and notice pay and compensation because the termination was unfair.

  27. Martin says:

    I was on probation for 3 months and my period was extended for 8 months probation. My question is, how many leave days am i supposed to be given if a full time worker is given 20 leave days?

    1. Anne Babu says:

      The minimum is 21 days per year.

  28. MICHAEL OTIENO ONYANGO says:

    Hello Anne, I am a healthworker employed by the Kisii County Government as from 19th of January 2017. After receiving letter of appointment,accepting the offer and deployed to my workstation, I have not received any compensation due to me two years down the line, despite the countless visits to the county offices.Some of my colleagues had already been put on payroll whereas a few of us are remaining. It has been open discrimination. My probation term has long passed and I’m still expected to cover my shifts,(i have never absconded duty). How do I recover my dues,prayer for the due permanent term and not victimised in any way?

    1. Anne Babu says:

      Unfortunately, I cannot comment because I represent the County.

  29. Paul Rutto says:

    Hi Ann, can one sue a company for unlawful dismissal after for 4 years?

    1. Anne Babu says:

      Hi, the limitation period for employment matters is 3 years.

  30. Paul Rutto says:

    What if my emplyer took away the appointment letter and later return it after 3 years,can i sue him for delaying and also unlawful dismissal?

    1. Anne Babu says:

      The limitation period is 3 years from the date of dismissal.

  31. Simon Kiragu says:

    Hi. This is very informative. Thanks.

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