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Probationary Contracts: Catch 22 of Probationary Contracts in Kenya- Part 1

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There has been a whirlwind of jurisprudence on employment law relating to probationary contracts occasioned by a gamut of decisions of different courts of coordinate jurisdiction. This precarious situation unsettles the law, creates uncertainty, and in effect puts legal practitioners in a catch 22 situation when rendering advice to clients or defending a matter in Court. The Employment Act should be seen to create a balance between protecting an employer and the employee at least in equal measure lest we erode legislative intent and through judicial activism and craft supplant a totally new unbalanced regime of law by precedent.

A probationary contract is an employment contract that expressly states so in writing and is not for more than twelve months or part thereof. Before the Courts threw a spanner in the works of employment law, section 45 (3) of the Employment Act gave a right to an employee who has continuously worked for his employer for a period not less than thirteen months to complain of unfair termination. This meant that an employer under a probationary contract would not be eligible to complain about unfair termination. Section 45 (3) of the Employment Act was a safeguard that protects the employer from all sorts of claims and protects the judiciary from a floodgate of industrial claims.

The decision of Samuel G Momanyi v Attorney General & Anor [2012] e-KLR by Justice Lenaola (as he then was) though not on probationary contracts was the first to unsettle and blur legislative intent as far as qualifying periods for employees to access certain rights under the Employment Act. This decision is however important to probationary contracts because an employee under a probationary contract is one who has worked for 12 months or part thereof and would ordinarily be estopped to run to court by dint of section 45 (3) of the Employment Act to claim unfair termination.

Samuel G Momanyi had completed his probationary period however, at the point of his termination, he had worked for 11 months 27 days. He filed a claim at the Employment and Labor Relations Court which part of it was dismissed on a preliminary objection because he had not worked continuously for 13 months to warrant him to have the locus standi to bring a claim stilted on unfair termination. Aggrieved by the decision of the Employment and Labor Relations Court, he sprinted to the High Court and filed a constitutional petition seeking inter alia a declaration that section 45 (3) of the Employment Act is unconstitutional for being inconsistent with Articles 28, 41 (1), 47, 48 and 50 (1) of the Constitution. The argument by the petitioner was that section 45(3) of the Employment Act is discriminatory and there is no magic why an employee who has worked for 13 months should be granted access to the doors of justice and not any other employee who has worked for a less period. The Attorney General who would have been instrumental in addressing the Court on behalf of Parliament when enacting the law failed to respond to the petition and the learned judge entered judgment in favor of the Petitioner rendering section 45(3) of the Employment Act unconstitutional.

Justice Lenaola’s decision sitting at the High Court in the Samuel G Momanyi case (supra) sent some disquiet in the Employment and Labor Relations Court. For instance, Justice Stephen Radido of the Employment and Labor Relations Court in Mercy Njoki Karingithi v Emrald Hotels Resorts & Lodges Limited [2014] e-KLR held that an employee who was on probationary contract and who had worked two days suffered unfair termination expressed his disquiet as follows:

‘I have my doubts whether the declaration (of unconstitutionality) presents the correct legal position as to whether the termination of the contract is subject to Article 47 of the Constitution (right to fair administrative action).

I must also note that the qualifying period of 13 months to allege unfair termination are replete in statutes of many jurisdictions but since the declaration was made by a court of concurrent jurisdiction with the High Court (but in employment disputes) and because the declaration had a polycentric effect and the need for certainty in legislation there would be no utility in reaching a contrary conclusion or discussing the issue any further here.”

In another instance, Justice Rika of the Employment and Labor Relations Court in Dismuss Jelango & Anor v Amicable Travel Services Limited (2014) e-KLR did not feel bound by the decision of Justice Lenaola (as he then was) and held that the remedy for unfair termination does not apply to probationary contracts. He held as follows: –

“The correct interpretation is that section 43 and 45 of the Employment Act both in terms of procedure and substantive justification have no application to termination of probationary contracts….

The effect of the High Court decision of Samuel G. Momanyi and that of the Industrial Court in Mercy Njoki Karingithi is to nullify certain fundamental employment laws, such as the law of employment probation and blur the intention of Parliament in creating qualifying periods for employees to access certain rights and obligations.”

Clearly, Justice Lenaola’s decision sitting at the High Court is a spoke in the employment and labor relations Court jurisprudential wheel. Unfortunately, the Court of Appeal has never resolved this issue on section 45 (3) of the Employment Act for no appeal has ever been preferred in the Samuel G. Momanyi case. In fact, the Court of Appeal seems to have folded its hands amid this jurisprudential turmoil in the case of Nation Media Group Ltd v Onesmus Kilonzo [2017] e-KLR.

Having analyzed the decisions of Justices Rika and Radido of the Employment and Labor Relations Court and weighed it in against the High Court’s decision of Lenaola J (as he then was) the Court of Appeal stated the following:

“Both Radido Stephen and Rika JJ and, I hope other judges of ELRC, correctly appreciate that the High Court’s decision in Momanyi’s case is not binding on them. The High Court and ELRC are superior courts and each is autonomous and exercising different jurisdiction… Furthermore, the ELRC has jurisdiction to interpret and apply the constitution relating to questions of labor rights and Bill of rights in general, directly arising in employment and labor disputes within its jurisdictional competence….

Thus, there is no compelling reason why judges of ELRC should continue applying a decision of the High Court if they find that it incorrectly interprets the employment law…

In dismissing the appeal in Nation Media Group Ltd v Onesmus Kilonzo (supra) the Court of Appeal stated the following in paragraph 19:

‘As a matter of sound public policy, judicial resources should not be employed to decide abstract, hypothetical and academic cases except in certain circumstances. In my view, a court’s decision on the issue raised will not authoritatively resolve the interpretation of section 45 (3) and its decision will merely be advisory.

An authoritative decision of this court should await an adequate, developed and concrete case of unfair termination more so because the ELRC has the competence and jurisdiction to resolve the constitutional question untrammeled by the decision of the High Court in Momanyi’s case.’

Where there are competing and conflicting decisions of courts of coordinate jurisdiction, that ought to provide an apt moment that qualifies an exceptional circumstance for the Court of Appeal to provide a clarification even in obiter to steer certainty in law.

Against the backdrop of the effect of a declaration of unconstitutionality applying in rem, I am of the view that despite the time-lapse, there should be a review of the decision of the High Court in Samuel G Momanyi case (supra). This review will protect the rights of employers from a raft of cases and also public policy, preventing a floodgate of litigation that we have seen proliferate in courts. There is demonstrable public interest that should qualify as sufficient cause to warrant this review by the Attorney General on grounds among others: –

  1. There is a need to settle the jurisprudential whirlwind that has caused uncertainty on the application of section 45 (3) of the Employment Act to the public on matters that affect employment relationships daily in Kenya.
  2. The decision of the High Court is a red herring rendered per incuriam and without substantial input of the Attorney General as to the qualifying nature of section 45 (3) of the Employment Act
  3. The learned judge of the High Court rendered a decision without jurisdiction on a matter which fell under the remit of the Employment and Labour Relations Court.

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