How to Lawfully Dismiss a Probationary Employee on grounds of Misconduct or Poor Performance
A probationary contract, as defined in Section 2 of the Employment Act Cap. 226, is a contract of employment that is not more than six months duration, is in writing and expressly states that it is for a probationary period. While the word “probationary” might suggest that the individual is not yet fully part of the organisation/company, the law actually recognises an individual under a probationary contract as an employee, though one still under assessment/evaluation.
Section 66(4) of the Employment Act Cap. 226 allows an employer to terminate a probationary contract by giving not less than fourteen days’ notice of termination to the employee, or, by payment of seven days’ wages in lieu of notice. However, Section 66(1) of the same Act seems to suggest that an employer is not required to conduct a disciplinary hearing where a dismissal brings to an end a probationary contract.
That suggestion is problematic. While Section 66(1) of the Employment Act Cap. 226 seems to downplay the need for a fair hearing where a dismissal brings to an end a probationary contract, it must be weighed against Article 44(c) of the 1995 Constitution of the Republic of Uganda as amended (hereinafter referred to as the “Constitution”), which provides that the right to a fair hearing is non-derogable—meaning it cannot be taken away, limited, or ignored under any circumstances.
Indeed, the said constitutional safeguard gains even more weight when read alongside Section 65(1) and (2) of the Employment Act Cap. 226, which open with the expression “Notwithstanding any other provision of this Part, …” This type of wording—commonly referred to as a notwithstanding clause—is legally understood to override any conflicting provisions within the same Part of the Act. Therefore, despite what Section 66(1) of the Employment Act Cap. 226 might appear to suggest, Section 65 subsections (1) and (2) of the same Act reinforce the obligation to accord an employee a fair hearing before dismissing them on the grounds of misconduct or poor performance, even where the employee is under a probationary contract.
Further, case law supports the position that an employee under a probationary contract should be heard before a dismissal. A case in point is Ben Rhaeim Aime v. Granada Hotels (U) Ltd, Labour Appeal No. 002 of 2023 arising from Labour Dispute No. MGLSD/LC/520/2020. In that case, the appellant’s probationary period had been terminated on grounds of unsatisfactory performance. The Industrial Court of Uganda (hereinafter referred to as the “Court”) found that this was a fault termination and that it amounted to a dismissal for poor performance something which brought it under the ambit of Section 66 of the Employment Act 2006 (now Section 65(1) and (2) of the Employment Act Cap. 226). The Court therefore had to address the question of whether the appellant was accorded a fair hearing in line with Section 66 of the Employment Act 2006. The Court had this to say on page 17 of its Award:
“The thesis presented by Mr. Kizza for the Appellant is that even an employee under probation would be entitled to a fair hearing, and we agree. Under Section 66(1) and (2), an employer seeking to dismiss an employee for misconduct or poor performance must give the employee a hearing. In the present case, the Respondent found the Appellant’s performance unsatisfactory. It conducted an audit. By this, it means the Appellant was considered an underperformer. His future employability would be questioned if he had not been given an opportunity to defend himself. The right to a fair hearing here preserves the employee’s rights to present his or her side of the equation, to answer the allegation of poor performance, to dispel any veneer of incompetence, and for the employer to prove his or her opinion of the employee’s competence. Therefore, Section 66(1) and (2) EA would “trump” the restriction in Section 67(1) EA. Indeed, in the Atuzarirwe case, Musoke J. held that even a probationer has a right to a hearing. The Appellant was on a fixed-term contract; the procedure for dismissal for misconduct or poor performance requires a hearing under Section 66 EA. There was no hearing in respect of the Appellant’s termination.”
The Court in that case therefore found that the appellant was unlawfully dismissed. The Labour Officer’s finding that the appellant was lawfully terminated was accordingly vacated by the Court.
It is also important to note that in that very case, the Court clarified that where an employee is given a fixed-term contract which contains a probationary clause or has a probationary period to be served, such a contract should not be regarded as a probationary contract but a fixed-term employment contract with a probationary clause.
In conclusion, the constitutional right to a fair hearing is more than just a legal safeguard—it is a reflection of our shared humanity. Behind every probationary contract or fixed-term contract with a probationary clause, is a person doing their best to build a life, shouldering responsibilities, and clinging to hope they cannot afford to lose.
To dismiss that person on grounds of misconduct or poor performance without giving them a fair and honest hearing is not just a legal misstep; it is an injustice that wounds far beyond the walls of the workplace. It strips dignity, silences the voiceless, and turns a place of opportunity into one of quiet cruelty.
And let us not pretend: Not every disciplinary hearing is fair. Some employers, without shame, carry out disciplinary hearings as hollow rituals—ignoring the principles of natural justice, disregarding their own Human Resource policies, and treating people as problems to be discarded rather than as lives to be heard. But a disciplinary hearing in name only is no hearing at all.
When such a process ends in dismissal, the damage is lasting—not just for the probationary employee whose dreams are cut short, but for the employer who is likely to be held accountable for that unfairness which was exhibited in the disciplinary hearing. In truth, it takes so little to be fair—and yet, for the person on the receiving end, that small act of fairness can mean everything.
Every employee—even a probationary employee—deserves to be heard especially when the accusations levelled against them are of misconduct or poor performance. Because at the end of the day, justice begins not in courtrooms or codes, but in how we treat those with the least power. And to the employers: Your decisions carry weight beyond the employment/probationary contract—they shape livelihoods, homes, and futures. Choose fairness not just because the law demands it, but because your humanity does. In a world that can be unkind and so cold, be the employer who does the right thing—even when no one is watching.
