My probation period ended this month, and we were supposed to sit down and have a conversation with HR about my employment terms. Unfortunately, I have been asked to continue working despite no contract, not even an extension of my probation window. I am in the dark and I don’t know how best to approach the situation. I like the organisation I am working for but is it legal to work without a contract?
Hi,
All employers and employees should pay attention to Articles 27, 28 and 41 of the Kenyan Constitution. Article 41 states that every person has the right to fair labour practices, including the right to fair remuneration, reasonable working conditions and to participate in the activities and programmes of a trade union. This is the foundational clause of how employers and employees must learn to serve each other. Mutuality is in the goals that either party seeks to achieve, and employment is the channel through which such is pursued.
It sounds as if you have been operating by the terms of a probationary contract, which is explained in Part I of the Employment Act 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.
Further, at Section 42 (2) of this Act, it is indicated that a probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee.
You have been asked to continue working but on unclear terms. It is not known whether your probation has been extended, or twelve months have lapsed. This kind of uncertainty reduces people’s ability to work or perform duties.
Nonetheless, should an employer seek to extend the probation period of an employee, the law demands that a conversation between them must be held, and the employee should agree to it. This doesn’t seem to have happened. It is directed at Section 42 (4) that an employer or employee, being parties to a probationary contract can terminate such contract by giving a seven-day notice.
This accrues wages of seven for the employee while mandating the employer to pay the same, in lieu of notice. In trying to put some human resource protocol with regard to probation, a three-judge bench of Justices Monicah Mbaru, Joram Abuodha and Linnet Ndolo of the Employment and Labour Relations Court annulled section 41 (1) terming it unconstitutional.
They asserted “it does not make sense to accord an apprentice and indentured learner who are included in the definition of an employee, the procedural benefits involved in termination but deny the same to an employee simply because they hold a probationary contract. This is in line with Article 27 (1) of the Constitution which places all people equally before the law. The three-judge bench, in their decision, gave life to this Article in relation to employment.
A contract of service is one that creates rights and responsibilities between parties to an employment relationship. In the matter of Stanley Mungai Muchai v National Oil Corporation of Kenya (2012), the court held that under section 2 of the Act 2007, a contract of service is a necessary ingredient in the definition of an employer.
The Act defines a contract of service as, “an agreement, whether oral or in writing, and whether expressed or implied, to employ or serve as an employee for a period of time and includes a contract of apprenticeship and indentured learnership.” From the story in the text, it is clear that a contract can be implied. Your scenario is a classic fit for a contract by conduct, where your employer, by word of mouth makes you act or not act, behave and operate as an employee in their employ.
While it is not legal to work without a contract, the law anticipated such situations, and the likely craftiness within, and created the contract by conduct that provides for the oral part, which is word of mouth with specific instructions. You have a contract, but let the human resource department formalise this, lest both of you drag each other into the Employment and Labour Relations Court canvassing unfair labour practices.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
