Were v Contemporary Electricals Enterprises Ltd (Cause 972 of 2017) [2024] KEELRC 1171 (KLR)

The letter of appointment and signed Terms and Conditions contained no probationary clause. Clause 3.7 of the HR Manual was in a document the Claimant never received or executed. The court held a probation clause is fundamental and must be brought to the employee's attention at contract execution. Even assuming the manual applied, no evaluation or extension occurred; the probation lapsed after 3 months, and by operation of law the Claimant transitioned to full-time employment by 6th February 2017.

Section 45 requires a valid and fair reason. The dismissal letter gave no reason. The alleged letter on unsuccessful probation was unsigned, undated, not on letterhead and never shown to have been received by the Claimant, so it was inconsequential. No evaluation, appraisal or recorded concerns existed, and the theft allegation was unsupported by any police report or charges. Substantive justification was therefore not demonstrated.

Having found the Claimant was not on probation, the Respondent was obliged to follow Section 41 — explain the reasons and hear the employee before termination. RWI's implicit position that probationary employees may be dismissed without process was rejected as contrary to law. The summary dismissal without notice or hearing was procedurally flawed and unfair within Section 45.

Unfair termination merited the declaration. No evidence showed payment for February 2017 days worked. The 6 leave days claim failed for want of evidence. Compensation under Section 49(1)(c) was moderated to 3 months' gross salary given the short (about 4 months) service, the Claimant's contribution to the termination, and her failure to appeal or express a wish to remain. A certificate of service is a statutory entitlement.