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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. Advocates. She has practiced employment law for 10 years. 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.