There is no automatic security of tenure for any probationer nor does a probationer holds any lien for his post however any decision by an employer must be done in a bona fide manner and never against fair labour practice. In the case of Equatorial Timber Moulding v. Michael Crosskey; [1986] 2 ILR 1666, the learned Chairman decided;
“Being a probationer, he has no substantive right to the post. He holds no lien on the post. He is on trial to prove his fitness for the post for which he offers his service. His character, suitability and capacity as an employee is to be tested during the probationary period and his employment on probation comes to an end if during or at the end of the probationary period he is found to be unsuitable and his employer can terminate his probation by virtue or otherwise as provided in the terms of the appointment.”
THE RIGHT OF A PROBATIONER
A Probationer enjoys the same protection with regard to termination and/or dismissal and is entitled to due process and protection of their employment right.
Hence, any employer when dealing with a probation employee at the end of the probation period and if the employer faces doubts on the issue of confirmation must note the following:-
- PROBATIONER UNTIL CONFIRMED IS NOT A PERMANENT EMPLOYEE
Federal Court in V Subramaniam&Ors v. Craigielea Estate; [1982] 1 LNS 40“There can, in our opinion, be 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.”
- THE EMPLOYER HAS THE DISCRETION TO CONFIRM OR NOT TO CONFIRM A PROBATIONER
Vikay Technology Sdn Bhd v. AngEng Sew; [1993] 1 ILR 90 “It is well settled law that at the end of the probationary period, it is open to the employer to continue the employee in his service or not is in his discretion, otherwise the distinction between probationary employment and permanent employment will be wiped out. Even if on the expiry of the probationary period the work of the employee is satisfactory, it does not confer any right on him to be confirmed.”
- NON-CONFIRMATION OF PROBATIONER MUST NOT BE CAPRICIOUS OR ARBITRARY
A RajendraRao V. Cimb Aviva Assurance Berhad; [2017] 1 ILR 32,it is stated that if a probationer is to be terminated, it should be within the general purview of s. 20(3) of the Act in that it should not be without just cause or excuse. It was conditional for a probationer to perform his functions to the satisfaction of his employer. The failure to do so would render the probationer’s non-confirmation leading to the termination of his employment. Nevertheless, the employer’s decision must not be capricious or arbitrary.
DISMISSAL AND/OR TERMINATION OF PROBATIONER EMPLOYMENTMUST BE WITH JUST CAUSE AND EXCUSE
- THERE IS NO AUTOMATIC RIGHT OF TERMINATION PURELY ON THE BASIS OF THE EXISTENCE OF NOTICE PERIOD
Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd; [1997] 3 CLJ 827,“ that It is our view 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.”
- IT MUST BE IN GOOD FAITH WITH JUSTIFIABLE REASONS
Roslan Baba V. PuncakNiaga (M) Sdn Bhd;[2013] 3 ILR 216,“It had been the management’s prerogative to gauge the claimant’s performance and the yardstick used to do it had been left to the company, as long as it had not been tainted by mala fide intentions. There had not been any evidence adduced to show that the termination had been mala fide or had been done with malice.”
- PROBATIONER ARE NOT AUTOMATICALLY ELEVATED TO THE STATUS OF CONFIRMED EMPLOYEE WITH REGARD TO RIGIDITY OF PROCEDURE
InHartalega Sdn Bhd V. ShamsulHisham Mohd Aini; [2004] 3 CLJ 257,“There should be a distinction between a probationer and a confirmed employee. Merely bringing the probationer within the ambit of s. 20 of the Act does not automatically imply that the probationer is elevated to the status of a confirmed employee. This was not the intention of the legislature in enacting s. 20(3) of the Act.My opinion is that the rigid test as expounded in the said case should not be applied to employees on probation, especially with regard to requiring a written warning. To me, the monthly appraisal report produced by the applicant and which was communicated and discussed with the respondent was sufficient for reason of dismissal.”
- THOUGH NOT RIGID, THERE STILL NEED TO EXIST IMPLEMENTATION OF REASONABLE AND FAIR PROCEDURE
Radiant Visions Sdn Bhd v. Donald Wayne Dickman; [2003] 1 ILR 42, “It is clear that the court will not lightly interfere with the exercise of management prerogative which recognizes the principle that an employer who is genuinely satisfied that a probationer is not suitable for permanent employment as a confirmed employee may discharge the latter. However, such satisfaction must be arrived at pursuant to a fair process of assessment of the suitability of the probationer.
While no rigid procedures will be imposed, the failure to make formal appraisals where the same is a part of the management practices of an employer will give the court cause for finding that there was some arbitrariness or unfair labour practice in the process.”
COMPENSATION (BACKWAGES) PAYABLE FOR UNFAIR DIMISSAL
The Compensation is payable. In the case of a probationer who has been dismissed without just cause or excuse, any backwages given shall not exceed twelve (12) months backwages from the date of dismissal based on his last drawn salary.
Premjit Singh is the Managing Partner of Prem & Associates and he can be contacted at 012-5236755 or email to prem@premlaw.com
