Most workers in Malaysia are aware of the practice of probation since most job contracts contain a probationary period typically lasting three to six months.
After this period, management and HR will typically collaborate to evaluate the worker’s performance; if everything checks out, the worker’s employment is confirmed.
Many probation workers are enquiring about the specifics of probation, such as what rights they qualify as probation workers.
What is the Malaysian law’s position on probation?
The Employment Act 1955 primarily governs employment law in Malaysia, albeit the term “probationer” has no official definition. However, based on Malaysian case law, an employee on probation can be distinguished from a confirmed employee as going through a trial phase to see if they are a long-term fit for the position.
It’s crucial to realize that a probationer has the same rights as an officially recognized employee. Employers cannot terminate a probationer’s employment without a valid reason or explanation. Suppose impacted probationary employees believe the employer violated their rights. In that case, they may file a claim with the Director-General for Industrial Relations.
Whether an employee is on probation or not, “just cause and excuse” implies that employers need a good reason before firing them.
Probationary workers, however, have some legal protections even if they have fewer privileges than permanent workers. Probationary employees, for instance, are eligible to:
Fair treatment: Probationary staff members shall get equitable treatment and not face discrimination based on their age, disability, gender, race, or religion.
Clear communication: Employers must communicate to employees clearly and concisely the standards of performance and expectations during the probationary term.
Notice of Termination: Per the employment contract or the minimum notice time mandated by law, employers must provide notice of termination [Please refer to section 4. below].
Termination with just cause: Before dismissing a probationary employee, an employer must provide a good reason that does not violate any other laws or constitute discrimination.
A probationary employee entitle to submit a complaint with the Labour Court or the Industrial Relations Department if they believe employers violated their rights.
However, the specifics of the case may affect the likelihood of success. Therefore, it is advisable to consult a lawyer before filing a lawsuit.
This is not legal advice. Before pursuing any legal action, we always advise speaking with a lawyer.
