FAQ on Probationary Period
Frequently asked question on Probationary Period
Q : Can there be a probationary period in a fixed term contract?
A : Yes, an employer may impose a probationary period in a fixed term contract.
Q : Can my company terminate my services on 24 hours notice? I am still on probation.
A : No, your company must wait until you complete the probation period before terminating you, i.e. if your probation period is three months, then they can only terminate you at the end of the three months.
Q : Can probationer take annual leave ?
A : The annual leave entitlement is for confirmed staff only. As such, during probation period , probationer are allow to take unpaid leave.
Q : 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?
A : 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.
Q : A probationer who receives no confirmation after the end of the probationary period, is he or she considered confirmed or not confirmed?
A : 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.
Q : Can we terminate staff under probation at any time during the probationary period if we find that they are misusing their authority or company property for their own benefit?
A : No, you must allow an employee on probation to complete his probation period before terminating him. If the probation period is three months, then you can only terminate at the end of the three months.
However, you can dismiss an employee on grounds of misusing their authority but you will need to go through the procedure of doing a domestic inquiry. If you do, you can then dismiss the employee without notice if the inquiry panel finds him guilty and your management concurs.
Q : I have not received any confirmation letter, am I considered confirmed or not?
A : You are considered as not confirmed unless the confirmation clause stated “when no confirmation is received after the probationary period, the employee is deemed to be confirmed.”
Q : Can an employer impose different probationary periods for new employees?
A : An employer is free to establish different probationary period for different categories of new employees, during which an employee may be terminated with or without any reasons. While different probationary periods may be established for different employees, or different categories of employees, this may make the employer vulnerable to a claim of discrimination. Therefore, an employer should be prepared to justify any differences in the probationary period.
Via : Star LabourGuru
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Filed Under: Career Tips • Human Resources • Malaysia Labour Law
