The Employment and Labour Relations Court recently declared that section 42 (1) of the Employment Act, 2007, in so far as it excludes an employee holding a probationary contract from the provisions of Section 41 of the Employment Act, is unconstitutional. The latter provision of the law requires formal notification and hearing before termination of the employment of an employee on the grounds of misconduct, poor performance or physical incapacity. The court explained that the provision of Section 42 (1) is inconsistent with Articles 41 (Labour Relations) and 47 (Fair Administrative Action) of the Constitution which provide for the rights to fair labour practices and fair administrative action, hence is null and void. Employers are now required to adhere to the procedural requirements set out in the law and their internal organizational policies when terminating probationary contracts, and can no longer terminate employees on probation arbitrarily or at will.

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