Industrial Court and Superior Courts have always recognized the rights of the probationer in Malaysia. Though they hold no security of tenure this does not mean probationers can be terminated without due process. All employees under probation are protected against any form of dismissal without just cause or excuse.
DEFINITION OF PROBATIONER
Koperasi Serbaguna Pekerja Felda Bhd v. Zainal Ariffin Mohd Noor;  2 ILR 862 “The dictionary meaning has been given as the “testing of conduct or character of a person” and the probationer is one who “is on trial or in a state to give proof of certain qualifications for a place or status.” The idea of probation in all cases of services contracts is, therefore, a testing of the character and capabilities of the servant on the employee’s side and also a testing of the conditions of service on the employer’s part.”
- PROBATIONER UNTIL CONFIRMED IS NOT A PERMANENT EMPLOYEE
The Federal Court in V Subramaniam & Ors v. Craigielea Estate;  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.”
- LEGAL POSITION OF A PROBATIONER
Reference is made to where the decision in Azmi& Company Sdn Bhd v. Firdaus Musa;  2 ILR 510, which lays out the legal position of probationer:-
- Employees cannot assume confirmation in the absence of an express confirmation from his employer. Until he or she is expressly confirmed and if no action is taken by the employer, either by way of confirmation or by way of termination, he or she is assumed to continue his or her service as a probationer.
- As far as his or her tenure of employment is concerned, a probationer enjoys the same rights as a permanent or confirmed employee in his or her services and cannot be terminated without just cause or excuse. The requirement of bona fide is thus essential for his or her dismissal.
- Performance-wise, an employee on probation generally cannot expect to be accorded with the same status, rights or privileges as a permanent employee, as the employee holds no lien to the post subject to confirmation.
- If an employer is reasonably satisfied that an employee is not suitable for the job he may be removed. Thus, the test would be whether the probationer possesses the right skill, competence, temperament, aptitude, attitude and suitability which will entitle him to transcend from being an employee on probation to that of a confirmed permanent employee.
Hence, the legal position remains that probation employee unless confirmed remains as probation employee. The failure to obtain confirmation put the employee in an unfortunately precarious legal position of still being in probation under the eyes of the law.
EXCEPTION BY WAY OF CONDUCT OF THE EMPLOYER
- GRANTING OF ANNUAL LEAVE
Abdul Majid Hj Nazardin&Ors v. Paari Perumal;  3 CLJ 133 “By acting towards the plaintiff as if he were a confirmed employee eg, by giving him the annual leave, the defendants were taking a position or must be deemed to have taken the position that the plaintiff was confirmed; once this finding that the plaintiff was a confirmed employee had been correctly made by the learned High Court judge, it followed that the plaintiff would be entitled to the increment claimed.”
- INCREMENT BY EMPLOYER
In Trio-Kenwood Electronics Engineering (M) Sdn. Bhd. v. Syed Ahmed Syed Mohsin; 2 ILR 669“When an employee is given an increment, which is not ordinarily given until the satisfactory completion of the probationary period, then he is deemed to be confirmed on the expiry of the probationary period if he is not discharged.”
Hence, Probationer who are not confirmed cannot imply that they have been confirmed into their position and their legal position remains a probationer until confirmed or if fall within the exception of by way of conduct of the employer. Nevertheless, the right of confirmation always rest with the employer and not the employee. Hence, employee must always be reminded to obtain and secure their confirmation letters when due and not neglect this important fact.
Premjit Singh is the Managing Partner of Prem & Associates and he can be contacted at 012-5236755 or email to firstname.lastname@example.org