The purpose of employee probationary contracts is to give the employer an opportunity to evaluate the employee’s performance before confirming appointment. An employer should give an employee reasonable evaluation, instruction, training guidance or counseling in order to allow the employee to render satisfactory service.

The employer should advice the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If possible give the employee a chance to improve his/her performance by extending the probation period

There exist employee probationary contracts which are contracts of employment which essentially should not be more than twelve months. Usually they are for a period of three to six months. Probationary contracts must be in writing and should expressly state that the contract is for a probationary period.

In Kenya, the Employment Act, provides for termination of employee probationary contracts under section 42. Termination of a probationary contract is done by either party to the contract. The party terminating the contract should give the other party a (7) days’ notice or payment in lieu of notice.

The Act provides that the provisions of section 41 are not applicable where the termination regards a probationary contract. Section 41 of the Act provides that:

“…an employer shall, before terminating the employment of an employee 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.”

The effect of section 41 of the Act is to provide procedural fairness in employment termination. The section also observes the provisions of the Constitution. This includes fair administrative action and fair hearing which provisions should be read together with the provisions of the Fair Administrative Actions Act, No. 4 of 2015.

In essence, the decision comes to protect employees from unfair termination of employee probationary contracts. It also enables them go through the proper termination process where they will be informed of their inadequacies in execution of their duties. They will also be granted an opportunity to defend themselves. In return employers will be expected to fairly analyze the employee’s performance and grant them a chance to improve their performance by extending their probation period.

Many proponents of section 42(1) support the position of excluding probationary employees from procedural termination proceedings by citing that during probation the employee is under trial to match the skill sets represented during the interview with the actual job performance.

We must acknowledge that not every person has the same learning abilities. Others may take longer than the rest to grasp certain aspects in execution of their duties. They only need to be granted the chance and time to grasp the same.

Employers are discouraged from quickly doing away with employees without any reasonable or justifiable cause. We must acknowledge that the employee possibly under performed because of justifiable reasons. He/she should be allowed to articulate before the employer makes a subjective decision to terminate their employment.