Constructive Dismissal and Unlawful Extension of Probation: Lessons from Rosemary Nyambura Wachira v Commercial International Bank Kenya Ltd [2026] KEELRC 654 (KLR)

Introduction

The decision in Rosemary Nyambura Wachira v Commercial International Bank Kenya Ltd [2026] KEELRC 654 (KLR) is a significant addition to Kenya’s employment jurisprudence, particularly on the issues of probationary employment and constructive dismissal.

In this case, the Employment and Labour Relations Court (ELRC) addressed two critical questions: whether an employer may lawfully extend an employee’s probation period after its expiry, and whether a hostile and degrading work environment may amount to constructive dismissal. The Court’s findings reinforce the statutory protections afforded to employees under the Employment Act, 2007 and the constitutional guarantees of fair labour practices and human dignity.

Factual Background

The petitioner, Rosemary Nyambura Wachira, was employed by Commercial International Bank Kenya Ltd in May 2023 as the Senior Branch Manager at the bank’s Westlands Branch. Her employment contract provided for a probationary period of six months.

According to the petitioner, she performed her duties diligently and received commendation from senior management during her probation period. However, upon the lapse of the probation period in January 2024, the respondent neither confirmed her employment nor communicated any dissatisfaction regarding her performance.

Instead, in February 2024, the respondent purported to retrospectively extend her probation period. The petitioner further alleged that she was subsequently reassigned to a lower position with reduced remuneration and later transferred to another role that lacked proper structure and support. She contended that she was subjected to unfair treatment, unreasonable performance expectations, humiliation, and sustained pressure intended to force her resignation.

The petitioner ultimately resigned in September 2024, citing emotional distress and deteriorating health. She thereafter instituted proceedings alleging constructive dismissal and violation of her constitutional rights.

Issues Before the Court

The Court was called upon to determine:

1. Whether the respondent lawfully extended the petitioner’s probation period after its expiry;
2. Whether the respondent’s conduct amounted to unfair labour practices and constructive dismissal; and
3. Whether the petitioner was entitled to the remedies sought.

The Court’s Analysis

Unlawful Extension of Probation

The Court held that the petitioner’s probation period had expired without any lawful extension or communication declining confirmation. Consequently, the petitioner automatically became a confirmed employee by operation of law.

Justice Wasilwa observed that the respondent’s attempt to retroactively extend the probation period in February 2024 contravened section 42 of the Employment Act. The Court emphasized that an employer cannot extend probation after the contractual probation period has lapsed without prior communication and compliance with statutory requirements.

The Court therefore found that the purported extension constituted an unfair labour practice.

Constructive Dismissal

In determining whether constructive dismissal had occurred, the Court examined the cumulative conduct of the employer. Among the factors considered were:

• the inconsistency between positive appraisals and subsequent negative treatment;
• the petitioner’s demotion and salary reduction;
• unclear and unsupported job assignments; and
• the introduction of a Performance Improvement Plan despite earlier positive evaluations.

The Court concluded that the respondent had created an undignified, humiliating, and intolerable working environment that effectively forced the petitioner to resign.

The ELRC reaffirmed the principle that constructive dismissal occurs where an employer’s conduct fundamentally breaches the employment relationship and leaves the employee with no reasonable option but to resign.

Violation of Constitutional Rights

The Court further held that the respondent’s conduct violated the petitioner’s constitutional rights under Articles 28 and 41 of the Constitution of Kenya, 2010.

Article 28 guarantees the right to human dignity, while Article 41 protects the right to fair labour practices. The Court found that the respondent’s treatment of the petitioner was degrading and inconsistent with constitutional and statutory labour protections.

Determination and Remedies

Having found in favour of the petitioner, the Court declared that she had been constructively dismissed and subjected to unfair labour practices.

The Court awarded:

• compensation equivalent to eight months’ salary;
• damages for violation of constitutional rights;
• pension dues;
• costs of the suit; and
• interest.

Key Takeaways for Employers and Employees

This decision offers important guidance for employers and employees alike.

First, employers must ensure strict compliance with section 42 of the Employment Act regarding probationary contracts. Any extension of probation must occur before the expiry of the probation period and must be properly communicated.

Second, the judgment underscores that workplace hostility, humiliation, arbitrary demotions, and unfair performance management processes may collectively amount to constructive dismissal.

Finally, the case reaffirms that employment relationships in Kenya are not governed solely by contractual principles but are also subject to constitutional standards of dignity, fairness, and equitable treatment.

Conclusion

The decision in Rosemary Nyambura Wachira v Commercial International Bank Kenya Ltd serves as a timely reminder that employers must exercise managerial authority within the confines of both statutory and constitutional safeguards.

The judgment strengthens employee protections against retroactive probation extensions and hostile workplace practices, while reinforcing the constitutional imperative of fair labour practices in Kenya’s evolving employment landscape.