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Hello. I need an advice. I got employed as an account officer in a company that deals with land survey in the month of may 2023. I was first employed on probation basis which was to last for three months up untill 15th august 2023. After I was to bevemplyed on yearly contract. After my probation the company never communicated about my contract employment and ao I continued working as a salaried employee. In the month of October, the company gave a memo of notice to close the company by the end of November. After that memo the MD became hostile and the enviroment become unconducive to work in. I stopped going to work by the end of October but then they refused to pay part of my October salary. Do I have a right to claim my salary, can I sue the company, am I under any legal obligation given that I never signed any contract and given that the probation period has already expired

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Introduction

In addressing your situation, it is essential to consider various aspects of Kenyan employment law, including the Employment Act, 2007, and relevant provisions of the Constitution of Kenya, 2010. This response will provide a detailed analysis of your rights and obligations as an employee, the employer's obligations, and the legal remedies available to you.

Legal Framework
- Employment Act, 2007
- Constitution of Kenya, 2010
Probation Period and Employment Contract
- Definition and Duration of Probation Period
- Transition from Probation to Permanent Employment
Employee Rights and Employer Obligations
- Right to Fair Remuneration
- Right to a Conducive Working Environment
- Employer's Obligation to Pay Salaries
Termination of Employment
- Lawful Termination Procedures
- Unlawful Termination and Remedies
Legal Remedies and Actions
- Claiming Unpaid Salary
- Legal Actions Against the Employer
Conclusion

1. Legal Framework

Employment Act, 2007

The Employment Act, 2007, is the primary legislation governing employment relationships in Kenya. It outlines the rights and obligations of both employers and employees, including provisions on employment contracts, probation periods, termination, and remuneration.

Constitution of Kenya, 2010

The Constitution of Kenya, 2010, provides overarching principles that protect workers' rights, including the right to fair labor practices, fair remuneration, and a safe working environment.

2. Probation Period and Employment Contract

Definition and Duration of Probation Period

Section 2 of the Employment Act, 2007 defines a probationary contract 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.
Section 42(1) of the Employment Act, 2007 allows for a probation period not exceeding six months, but it can be extended for a further period of not more than six months with the agreement of the employee.

Transition from Probation to Permanent Employment

If an employee continues to work after the probation period without any communication from the employer, it is generally assumed that the employee has transitioned to a permanent employment contract.
Section 42(2) of the Employment Act, 2007 states that an employer may terminate a probationary contract by giving seven days' notice or payment in lieu of notice.

3. Employee Rights and Employer Obligations

Right to Fair Remuneration

Article 41(2)(a) of the Constitution of Kenya, 2010 guarantees every worker the right to fair remuneration.
Section 17 of the Employment Act, 2007 mandates that an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of his contract of service.

Right to a Conducive Working Environment

Article 41(2)(b) of the Constitution of Kenya, 2010 ensures every worker the right to reasonable working conditions.
Section 6 of the Employment Act, 2007 requires employers to ensure that the working environment is free from harassment and conducive to work.

Employer's Obligation to Pay Salaries

Section 18(2) of the Employment Act, 2007 stipulates that wages shall be deemed to be due and payable to an employee in respect of work done during each wage period on the day the wage period ends.

4. Termination of Employment

Lawful Termination Procedures

Section 35 of the Employment Act, 2007 requires that an employer must give notice of termination or payment in lieu of notice.
Section 36 of the Employment Act, 2007 allows for termination without notice if the employer pays the employee the wages they would have earned during the notice period.

Unlawful Termination and Remedies

Section 45 of the Employment Act, 2007 protects employees from unfair termination. Termination is considered unfair if the employer fails to prove that the reason for termination is valid and fair.
Section 49 of the Employment Act, 2007 provides remedies for unfair termination, including reinstatement, re-engagement, or compensation equivalent to a number of months' wages.

5. Legal Remedies and Actions

Claiming Unpaid Salary

You have the right to claim your unpaid salary for the period you worked. Section 18(2) of the Employment Act, 2007 supports your claim for wages due for work done.
You can lodge a complaint with the Ministry of Labour or the Employment and Labour Relations Court.

Legal Actions Against the Employer

If the employer's actions amount to constructive dismissal (where the working conditions are so intolerable that you are forced to resign), you can file a claim for unfair termination under Section 45 of the Employment Act, 2007.
You can also seek compensation for any damages suffered due to the hostile work environment and unpaid wages.

Conclusion

Based on the provisions of the Employment Act, 2007, and the Constitution of Kenya, 2010, you have the right to claim your unpaid salary for the period you worked. The employer is obligated to pay you for the work done, and failure to do so constitutes a violation of your rights. Additionally, the hostile work environment created by the employer may give rise to a claim for constructive dismissal. You can pursue legal remedies through the Ministry of Labour or the Employment and Labour Relations Court to seek justice and compensation for any damages suffered.