Although it is not a legal requirement to place employees under probation doing so has become a common practice in Malaysia. It is essentially a trial period where an employer assesses whether a new employee is suitable for the role before confirming them as permanent staff. However, many probationers are unaware of their rights under Malaysian employment laws. This article explains the key legal protections available to probationary employees in simple terms.
Are Probationers Protected by Law?
Yes! In Malaysia, probationers have legal rights just like permanent employees do. Two important laws protect all employees which also applies to probationers:
1. The Employment Act 1955 – Ensures that all employees (including probationers) receive basic protections like wages, overtime pay and leave entitlements.
2. The Industrial Relations Act 1967 – Protects employees from unfair dismissal and ensures fair treatment at the workplace.
What Rights Do Probationers Have?
1. The Right to Fair Treatment
Although a probationer might not be conferred the same benefits as employees with a confirmed status, employers must treat probationers fairly and follow the agreed terms in the contract (such as salary, benefits, and job responsibilities). Fair treatment also includes proper training, guidance, and a reasonable opportunity to prove one’s ability before the employer makes a decision. Employers cannot discriminate based on gender, race, religion, or other unfair reasons.
2. The Right to Statutory Benefits
Probationers are entitled to the same basic employment benefits as permanent staff, including:
• Salary & EPF/SOCSO contributions – Employers must pay wages as per the contract and contribute to the Employees Provident Fund (EPF) and Social Security Organization (SOCSO).
• Overtime Pay – If a probationer earns below RM4,000 per month and works beyond their contracted working hours, they must be paid overtime according to the Employment Act 1955.
• Rest Days & Public Holidays – Probationers have the right to weekly rest days, public holidays, and paid leave entitlements, including sick leave and hospitalization benefits.
3. The Right to Due Process (Fair Dismissal)
As stated earlier, even if probationers do not have the same benefits as a confirmed employee, they have the statutory right to not be unfairly dismissed. If a probationer is dismissed unfairly, then just like other confirmed employees, a probationer may lodge a complaint under Section 20 of the Industrial Relations Act 1967.
Important Case: In Khaliah Abbas v Pesaka Capital Corporation Sdn Bhd [1997] 1 MLJ 376, the Court of Appeal ruled that probationers have the same legal rights as confirmed employees. Employers must have a valid reason (“just cause or excuse”) to dismiss a probationer. If a termination is based on discrimination, bias, or improper reasons, it would be deemed to be unfair.
Employers Responsibilities & Performance Evaluations
1. Clear Expectations & Fair Evaluations
Employers should provide clear job expectations and performance feedback. If a probationer is underperforming, they should be given a chance to improve before being dismissed. Employers must avoid arbitrary terminations that are not based on a proper assessment.
2. Is a Warning Required Before Dismissal?
While not mandatory, issuing a warning helps show that an employer has fairly assessed a probationer. In Radiant Visions Sdn Bhd v Donald Wayne Dickman [2003] 1 ILR 42, the Industrial Court stated that while employers have the right to terminate a probationer, they must follow a fair process. Therefore, an employer has the right to terminate a probationer at the end of the probation period if they are deemed unsuitable due to inefficiency or poor performance. However, the employer must first communicate the probationer’s shortcomings, performance issues, and areas of inefficiency before making such a decision.
3. Can the Probation Period Be Extended?
Yes, but it must be done in good faith (not repeatedly or unfairly). An employee is not automatically entitled to confirmation upon completing the probationary period. If the employer does not take any formal steps to confirm or terminate the employee, the probationary status continues by default until the employer decides otherwise. That said, the courts have recognized that an employer’s actions can imply confirmation. For example, if an employee continues working beyond the probation period and starts receiving benefits exclusive to confirmed staff, this may suggest that the employer has implicitly confirmed their status.
Key Takeaways
• Probationers are protected by law and should be treated fairly.
• They have the right to salary, EPF/SOCSO, overtime, and leave benefits.
• Employers must have a valid reason to dismiss a probationer and follow proper procedures.
• If unfairly dismissed, probationers can take legal action through the Industrial Court.
Understanding your rights can help you protect yourself from unfair treatment and make informed decisions about your employment. Employers, on the other hand, must ensure fair workplace practices to avoid disputes and maintain a positive work environment.
About the authors
Damia Amani
Associate
Dispute Resolution & Employment
Harold & Lam Partnership
damia@hlplawyers.com
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