DO NOT simply terminate your probation staff with just 1 termination letter!



Probationary has become an industrial standard when it comes to hiring new employees.

The purpose is to allow employer to assess whether the new employee is suitable, or will they be a good fit for the role.

Knowing Facts about Probationary:

  • There is no legal requirement to put an employee on probation before they are hired, although this is recommended as a best practice
  • There is also no legal “minimum” or “maximum” probationary period that needs to be imposed although a probationary period usually set from 3 – 6 months
  • Probationary staff enjoy the same rights as confirmed staff
  • Staff continues to be on probation until he is confirmed and if no action taken by the company either by way of confirmation or by way of termination, he/she is assumed to continue in service as a probationer



CASE STUDY:

Award No. 30286

INDUSTRIAL COURT OF MALAYSIA
BETWEEN
MAK TECK MUN
AND
GINOVA MARKETING SDN. BHD. / LORENZO INTERNATIONAL LIMITED

SUMMARY:

  • Mak’s Employment Contract state he will undergo a minimum probationary period of not less than six (6) months and can be extended for a maximum of nine (9) months
  • Mak was dismissed by GINOVA MARKETING SDN. BHD. during his probationary period Company does not state any reason on Mak’s termination letter
  • Mak was not confirmed by the company at the end of his probationary period and he was put on probation for 15 months as the issue went unchallenged by Mak
  • Mak demand for reinstate without loss of seniority or other job benefit, also together with confirmation and a salary adjustment of RM 4,000.00
  • Company has not raised any unsatisfactory on Mak’s Job Performance

CONCLUSION:

  • Reinstatement in Mak’s last position has turn down by the court as he is a probationer who has no substantive right to hold the position
  • The court has acted with equity and good conscience and the substantial merits of the case without regard to technicalities and legal form as stated under section 30 (5) industrial Relations Act 1967
  • The Court awards Mak with Back wages for 10 months with his last drawn salary at a total of RM 260,000.00
  • The Company must pay Mak the sum of RM 260,000.00 less statutory deductions within 30 days from the date of this Award


From the facts given and a case study, we understand that company cannot simply fire a probationary under any circumstances.

A termination of probationer’s employment based on poor performance; it is good practice that employer follows the following steps:A termination of probationer’s employment based on poor performance; it is good practice that employer follows the following steps:

  • Warn the probationer about his poor performance in a form of a proper evaluation/appraisal. Evaluations and appraisals should be documented and signed off by the probationer.
  • Give enough opportunity to the probationer to improve on his/her work performance such as communicating specific goals and tasks to be achieved by the probationer in a reasonable timeframe, setting out areas of improvement, etc.
  • Provide enough guidance and advice during probation period.
  • Consider extending the probationary period as an alternative to termination, if you believe that there is still potential for the employee to improve.


If the probationer still fails to improve his/her performance after such steps have been taken by the employer, the Court would more likely to determine that the termination was with just cause and excuse.






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