BY PHILIPMUYANGA
The Employment and Labour Relations Court has ruled that extension of an employee’s probation period by an employer can only be effected with the consent of the employee.
In a case in which Mr David Oseme sued Swahili Beach Resort Ltd for unfair sacking, the court noted that his probation period of three months had long lapsed as at January 1,2019, when the hotel purported to extend it by two more months.
‘The purported extension was but an act in futility,” said Justice Agnes Nzei, adding that Mr Oseme stood confirmed to his appointment upon expiry of the probationary period.
She said that the contractual monthly salary payable to him upon confirmation became payable to him upon conformation became payable to him.
The judge further ruled that termination of an employee’s employment cannot be said to have been fair unless it is shown that there was procedural and substantive fairness in it.
“In the present case, the respondent did not comply with the mandatory procedural requirements set out in Section 41 of the Employment Act, 2007 and did not give any reason for terminating the claimant’s employment,” said Justice Nzei.
She further directed Swahili Beach to pay Mr Oseme a total of Sh1.9 million for unfair sacking, balance of one month’s salary in lieu of notice and unpaid salary balance for January 2019.
She further directed the hotel to issue a certificate of service to Mr Oseme within 30 days of the judgment.
Mr Oseme had told the court that he satisfactorily completed his probation period on December 31,2018 and was automatically confirmed in employment by operation of the law as from January 2019 as he continued working for the hotel.