Rights of Probationer

TOPIC: RIGHTS OF PROBATIONER

An employee upon being hired put under probation to see the suitability of the employee in the given position. This suitability includes job performance and conduct at workplace.

In the case of Khaliah Abbas v Pesaka Capital Corporation Sdn Bhd (1997) 3 CLJ 827, Court of Appeal held that an employee on probation enjoys the same rights as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse.

The duration of the probationary period is fixed by the employer vide the employment contract. Hence, to terminate the service of a probationer prematurely due to unable to meet company expectation is akin to unfair dismissal. However, in the case of gross misconduct regardless of status of probationer or confirmed employee, they are subject to same disciplinary action.

During the probationary period, the company should carry out performance review periodically and inform the areas that need to improve. Hence, periodical performance review during probation is important to the employee and crucial for the employer as documented evidence.

What happens if an employee completed his or her probationary period and was neither confirmed nor terminated? Even, if the employee has been working for few years, his or her status is still a probationer. Reference to this is in the Federal Court case of K.C. Mathews v. Kumpulan Guthrie (1981) 2 MLJ 320.

In conclusion, an employee on probation deserves performance review to be done periodically. At the end of the probationary, the employer can confirm the employee if the performance and conduct were satisfactory or terminate the service if performance and/or conduct not satisfactory. The important part here is that the employer must do periodical performance review.