He Was On Probation” Is Not a Defence — Unless You Wrote It Down
A Kenyan court recently reminded employers that probation is not a feeling. It’s a document. Here’s what every HR professional and business owner needs to take from this ruling.
The Story in Brief
A cleaning and sanitation company hired a landscaper. Some months later, he was told to hand back his uniform and equipment — no hearing, no written notice, just a vague word that “the Director” would explain. He was paid a small sum, which the company called an “appreciation token.”
He sued for unfair termination. The company’s defence was simple: he was still on probation, so the normal rules didn’t apply.
The trial court disagreed. The company appealed. The Employment and Labour Relations Court dismissed the appeal entirely — and in doing so, laid out one of the clearest statements yet of what employers must get right if they want probation to hold up in court.
Where the Company Went Wrong
The company’s own Managing Director, giving evidence under oath, was asked to produce anything in writing showing the employee was on probation. Her answer: the letter of appointment said nothing about probation, and she had no other document to show it.
That single admission ended the case. The court held that under Kenya’s Employment Act, a probationary contract must tick three boxes at once:
- It must not exceed twelve months.
- It must be in writing.
- It must expressly state that it is a probationary period.
Miss even one, and the employee is not legally “on probation” — no matter what the employer believed, intended, or does as standard practice across the business. The court was blunt about this: a business model of hiring people “pending client contracts” is not the same thing as a valid, individually written probation agreement. Assumption is not agreement.
Even Real Probationers Have Rights Too
Here’s the part many employers miss: even where probation is validly documented, it is not a blank cheque. The court reaffirmed that a probationary employee is still entitled to:
- At least 7 days’ notice (or pay in lieu) before termination
- Protection from termination for a discriminatory or unlawful reason
- Increasingly, the right to be told why and given a chance to respond
Probation lightens the procedural load on the employer. It does not remove it.
“He Performed Poorly.” This is still Not Evidence
The company also argued the employee was let go for poor performance — client complaints, they said. But those complaints were never written down. No warning letter, no appraisal, no performance improvement plan, no minutes of any meeting.
The court’s message here matters for every HR desk in the country: you cannot terminate someone based on a verbal complaint you can’t produce. If it isn’t documented, it didn’t happen — at least not in a way a court will accept. The burden of proving a fair reason for dismissal sits squarely with the employer, not the employee.
The Cost To The Business
Because the company couldn’t prove probation and couldn’t prove a fair reason for termination, it lost on every point — notice pay, leave dues, allowances, and compensation for unfair termination, plus the bulk of the legal costs. What likely began as a routine staffing decision turned into a costly, entirely avoidable legal defeat.
What This Means for Your Business
If you’re an employer, manager, or HR professional, treat this as a checklist:
- Put every probation term in writing, at the point of hire — clearly labelled, with a defined start and end date.
- Never rely on “everyone knows how we operate.” Courts want a signed document for this employee, not a general company practice.
- Document performance issues as they happen — warnings, appraisals, client complaints in writing, and a clear improvement process.
- Follow a fair process before any termination — explain the reason, allow the employee a representative, hear them out, and keep a written record of that hearing.
- Issue itemised payslips. The company also lost on house allowance because it couldn’t prove the salary was “consolidated” — a payroll records problem, not a legal one.
None of this is complicated. It’s paperwork discipline. But as this case shows, the absence of a single document can turn a routine exit into a judgment against your company.
This article is for general awareness and does not constitute legal advice. For HR policy reviews, contract templates, and compliant termination procedures tailored to your business, get in touch with Stratwise Africa.
Stratwise Africa | HR Consultancy. Building compliant, people-first workplaces across Africa.
