Written by Richard Wee and Sophia Ismail

Introduction

What is a probationary employee? Odds are, you already know what it is. Many companies include a probationary period in their offer letters for employment. What this usually entails is a specific period where you work on “probation” and once you pass that, you are a confirmed employee! Sounds quite simple right? But not really. In this two part series, the authors from Richard Wee Chambers aim to enlighten you on important matters you should be aware of when holding the status of probationary employee.

Fret not, a probationary employee enjoys the same rights as a confirmed or permanent employee as per the case of Khaliah bte Abbas v Pesaka Capital Corp Sdn Bhd [1997] 1 MLJ 376. In addition to enjoying the same rights, the Court of Appeal was of the view that a probationary employee’s services cannot be terminated without just cause or excuse. What this means is that there is a bona fide requirement in regards to the dismissal of the employee, even if they are on probation. Therefore, it is a misconception that probationary employees are less valued or easily dismissed under the eyes of the law. In Wong Choon Moey v Practimax Sdn Bhd [2013] 2 ILJ 501 the court reiterated that an employer has no right to terminate a probationer’s services before the probationary period is over except on grounds of misconduct or other sufficient reason as would be the case in terminating the services of a permanent workman. There will be more on termination of a probationary employee in our next article, Rights of Probationary Employees (Part 2).

Under Malaysian law, there are no rules pertaining to the required minimum or maximum period of probation. Even though employers may impose a required period, this can actually be negotiated between the parties, even after the contract of employment services has been signed. For this reason, if you are thinking about extending your probation period because you are unsure you want to continue working with the company or if you wish to reduce said period because you are confident that you have acquired the necessary skills, talk to your boss about it. Maybe an amicable solution can be arrived at.

Even though the contractual period of probation has lapsed, you are not automatically a confirmed employee. In KC Mathews v Kumpulan Guthrie Sdn Bhd [1981] 2 MLJ 320, the Federal Court viewed that at the end of the probationary period, an employer has the choice to terminate or confirm the probationary employee. Where no action is taken to either terminate or confirm, then the employee continues to be in service as a probationary. Even though this may appear discriminatory towards probationaries, where there is sufficient evidence to show that the employer has conducted himself in such a manner that after the probationary period, the said employee is treated similarly to a confirmed employee, the court may deem that there was implied confirmation.

For example, this was seen in the case of Paari A/L Perumal v Abdul majid Hj Nazardin & Ors [2000] 6 MLJ 602. Summarily, the facts were as follows: the employers granted the probationary employee annual leave which was a benefit which they were only entitled to after being confirmed. Therefore, by giving the plaintiff the annual leave, it proved that he was a confirmed employee as he was treated as one.

The Covid-19 Bill, inter alia, seeks to provide for temporary measures to reduce the impact of the Covid-19 pandemic, primarily by modifying the provisions relating to statutory limitation periods, as well as the contractual obligations of parties who are unable to perform the same due to the Covid-19 pandemic. As of now, the effect of the Covid-19 Bill has limited employment related repercussions. It is hoped that in the near future further amendments would be introduced to address more employment related issues, such as obligations and liabilities of the parties in an employment contract.

In terms of whether or not probationaries are still entitled to their pay and other employment related entitlements, the answer is yes. As long as the contract between the employer and probationary employee is still valid and ongoing, employers are required to make full payment of salary and generally, to provide other employment related entitlements/benefits during a COVID-19 outbreak in line with any current government restrictions. Further, employers are not allowed to force employees to go on unpaid leave and/or utilize their annual leave entitlements. This is in accordance with labor and industrial law in Malaysia as well as the Guidelines dated March 23, 2020, issued by the Labour Department of the Ministry of Human Resources, Malaysia.

During a situation like a pandemic, safety should always come first. In the event that your safety and wellbeing is at risk from being at the workplace, this is a basis of termination as there would be a contradiction to the objectives of the Occupational Safety & Health Act 1994 in Malaysia, irrespective if you are a probationary or confirmed employee. 

Demonstrably, there is a lot to know about one’s rights as a probationary employee.

 

Read more in Part 2…

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