Matanda v Pathfinder International Kenya (Cause E184 of 2023) [2024] KEELRC 1800 (KLR)

Section 42(2) of the Employment Act permits extension of a six-month probation by not more than six months only with the employee's agreement. The Respondent adduced no evidence that the Claimant agreed to the extension, and had not formally discussed or appraised his performance as its own Staff Handbook required. A probationary contract, being a contract of employment, cannot be varied without consent. Consequently the extension and the purported suspension of probation were ineffectual.

The investigation report had several gaps: the allegedly genuine receipts numbers 160 and 171 were never availed to the Claimant or filed in court, the driver's name and phone number were not disclosed, and the vendor's response disputing receipts 5698, 5741 and 5761 was neither attached nor availed. The service provider Nadine Carhire and Tours had in writing confirmed the receipts genuine, and the Respondent did not controvert that letter. The Claimant's evidence that the receipts were genuine therefore remained uncontroverted.

Although the Claimant was issued a notice to show cause, responded, and was heard with his counsel, the Respondent declined to avail receipts 160 and 171 which were the only evidence for the first charge. Neither the minutes nor the termination letter referred to the Claimant's representations, and neither document identified the falsified receipts or how the figure of Kshs.32,250 was computed. The procedure therefore failed the mandatory requirements of Section 41.

The court considered the short duration of employment (73/4 months), the absence of recorded misconduct or poor performance, the Claimant's expressed wish to remain in employment, his own contribution in affording the Respondent reason to doubt his honesty, and the fact that the Respondent had already paid the non-contentious dues including gratuity. These factors led the court to award the equivalent of two months' salary.