PROBATION

Employees on Probation

• The Employment Act does distinguish between a employee under probation and other employees.
• He enjoys all the same rights as any other confirmed employee.

Why probation?

A new employee will invariably have to go through a period of probation enabling the employer to test his or hers suitability of the job he or she is engaged to do. Qualification and skill alone may not make one a good employee, other factors such as aptitude and attitude towards work and fellow workers must also be tested before he or she can be confirmed to take on the job.

The probationer was found to be lacking in certain areas, can he or she then to terminated on or before the end of the probationary period?

It is quite common to find a clause in the contract of service like "..during the probationary period, either party may at any time terminate the contract of service without notice...." and many employers simply make use of the clause to terminate the service of a probationers whom they find to be not to their liking. 

Employers must be careful about doing this. When a new employee first came to the company, he or she must be given training in the job he or she is supposed to do. After due training the employee still could not do the job properly, he or she must be warned, at first verbally and then in writing or extension of the probationary period if things persist. If there is no improvement despite all that, then he or she is told to go when the probationary period expires. Even in a case of serious misconduct, an employer may not dismiss the employee summarily without first enquiring into the matter.

In Khaliah binti Abbas vs Pesaka Capital Corporation Sdn Bhd, the Court of Appeal ruled that an employee on probation enjoys the same rights as a permanent or confirmed employee and he or she cannot be terminated without just cause or excuse.If a probationer feels that he or she is terminated without just cause or excuse, he can seek redress under Section 20 of the Industrial Relations Act 1967 for wrongful dismissal.

A probationer who receives no confirmation after the end of the probationary period, is he or she considered confirmed or not confirmed?

In Consolidated Plantation Berhad vs All Malayan Estates Staff Union, the Federal Court held that if an employee continues employment after probationary period, he is still an probationer. In this case an Indian Supreme Court case was cited and in that case, it was held "There can .... no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at the end of the period his services had neither been terminated nor confirmed." However, if an probationer who receives no confirmation after the probationary period but is given a salary increment, he or she definitely has a strong case that the employer is satisfied with his or her performance.

Again, the position will be different if there is a clause in the contract of service stating that when no confirmation is received after the probationary period, the employee is deemed to be confirmed.