Probationer

Integrity, Reliance & Relationship
Rajeswari Karupiah & Co.
Employment of a Probationer
RAJESWARI KARUPIAH
LLB (Hons) London, CLP
Advocates & Solicitors / Peguambela & Peguamcara

How is a contract of employment terminated?Status of a Probationary
Employee
 A probationer holds no lien on the
post
 He has no right of tenure to his job
beyond the probation period
 He is on trial to prove his suitability
[Equatorial Timber Moulding Sdn Bhd v. John Michael
Crosskey (Award No. 387 of 1986)]

How is a contract of employment terminated?Suitability is based upon:
 Performance in the post
 Conduct in general
 Character
 Attitude
 Aptitude

How is a contract of employment terminated?Employer’s Right:
 An employer can terminate the services if
he finds the probationer is unsuitable for
permanent employment.
 Confirmation is employer’s prerogative.
 Until expressly confirmed, probationary
status remains even after the expiry of the
probation period.
 Beware of confirmation via conduct –
Abdul Majid Hj Nazardin v Paari
Perumal [2002] 3 CLJ 133

 K C Mathews v. Kumpulan Guthrie Sdn Bhd [1981] CLJ 40B
 V Subramaniam & Ors v. Craigielea Estate [1982] 1 LNS 40
“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 either not been terminated or he is
confirmed;
It appears clear to us that without anything more an appointment
on probation for six months gives the employer no right to
terminate the service of an employee before six months had
expired - except on the grounds of misconduct or other
sufficient reasons in which case even the services of a
permanent employee could be terminated”

How is a contract of employment terminated?Employee’s Right Under Section
20 IRA 1967:
 Can challenge if employer did not adopt a
reasonable approach in determining
suitability – to act bona fide & not arbitrary
 Can challenge if the employer terminates
before the expiry of period of probation
except in case of misconduct
 Procedural fairness to be established by the
employer if warnings given

How is a contract of employment terminated?Employer Expected To Provide:
 Regular Supervision and feedback
 Communication regarding areas needing
improvement
 Written Warnings (where necessary)
 Appraisal at the expiry of probation
 Agreed Notice (stipulated in the contract)

How is a contract of employment terminated?Probationer’s Legal Rights
•
•
No substantive claim to the post
Can file a claim under Section 20 of
Industrial Relations Act 1967
Compensation limited to 12 months’
backwages (Ind. Relations Amendment
Act 2007)
Rarely do the Courts reinstate a
probationer to his former post
•
•

How is a contract of employment terminated?Probationer’s Rights
QUESTION 1: Is DI a must before
termination of a Probationer?
QUESTION 2: Must 3* Warning Letter(s) Be
Issued Before Termination of a Probationer’s
Employment?

Equatorial Timber Moulding Sdn Bhd v. John
Michael Crosskey (Award No. 387 of 1986)
… termination of service of the probationer during the probationary
period is not punishment or dismissal but simply of termination.
However, when the validity of such a termination is challenged, the
court must be satisfied that such termination was a bone fide
exercise of the power conferred by the contract. And when there is
suspicion of unfair labour practice, then the court will not hesitate
to interfere with the termination and the employee should be
afforded proper relief

Suitability is not just based upon performance of the
employee but also on his conduct, behaviour, aptitude
and attitude in relation to the job for which he is
employed. Efficiency and satisfactory work
performance, inter alia, contribute towards suitability,
and in cases of inefficiency and unsatisfactory work
performance, the court has to be satisfied as to the
manner the worker has failed to perform; whether he
was pre-warned or notified of his
shortcomings and whether in spite of the warnings
he still failed to perform.
Grand Banks Yachts Sdn Bhd v. Komander (B) Teng
Tiung Sue (Award No. 157 of 2002).

Whether a warning is required depends upon the peculiar
facts and circumstances of each case. The issuance of
warnings would be indicative of a proper appraisal being
done in regard to the claimant's performance.
The Learned Chairman Mr. Honourable Mr. Lim Heng Seng
stated:
“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”
Radiant Visions Sdn Bhd v. Donald Wayne Dickman (Award
No. 1063 of 2002)

 Under the 2nd Schedule of the IR Act, a probationer is only
entitled to backwages. He or she is not entitled to
reinstatement.
 As noted, backwages is calculated based on the claimant's
last drawn salary but limited to 12 months only. See 2nd
Schedule IR Act.
 From the backwages, the court is required to make a
deduction for any contributory conduct; post dismissal
earnings and delay in the hearing of the case but such a
deduction need not involve a mathematical calculation.
Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya
(Sabah) & Anor [2001] 3 CLJ 541.

Background:
The claimant, an Accounts Executive, was put on probation for three
months, which was extended for a further period of three months.
After having served the company for approximately six months, his
services were terminated on the basis of his unsatisfactory
performance.
The claimant contended that his dismissal had been without just
cause and excuse and that he had been bullied and victimised by
COW1. The sole issue that arose for determination was whether he
had been dismissed by the company with just cause and excuse.
Held in favour of the company: dismissal with just cause and
excuse
TAN CHENG LENG v. TROPICANA MEDICAL CENTRE
(M) SDN BHD AWARD NO. 159 OF 2017

Reasoning:
(1)THe claimant had been in the habit of defying simple instructions and policies
such as having to clock in and clock out. The e-mail conversations between him and
COW1 showed that he had had an attitude problem and lack of commitment to his
duties and that he refused to follow the company's instructions. His general attitude
towards his superior had been unacceptable, insubordinate, provocative and apathetic.
(2)On his claim that he had been, amongst other things, bullied and victimised by
COW1, the evidence adduced had clearly proven otherwise. In fact, he had admitted
in evidence that COW1 had actually wanted to help him.
(3)The evidence showed the company had sufficient grounds to be dissatisfied with
his performance, especially his general attitude. He had been informed and advised of
his poor performance after the first appraisal and he had been given the opportunity
to improve it by way of extension of his probationary period, but there had been
little improvement or change in his performance and his attitude towards his duties
and work.
(4)In addition, he had been issued a show cause letter for coming to work late
without reason and for taking leave without approval.
TAN CHENG LENG v. TROPICANA MEDICAL CENTRE (M) SDN
BHD AWARD NO. 159 OF 2017 (Cont’)

Background:
The claimant had been employed by the company as its Finance
Manager and she was put on probation for three months, which was
later extended for a further three-month period.
After having served the company for approximately six months, her
services were terminated on the basis of her unsatisfactory
performance.
During her service with the company, two evaluations, with differing
recommendations, had been conducted on her, but only the second
one, which had been carried out by her Supervisor, had been taken
into account as the other evaluation had not been approved by him.
CHONG PEH YUNG v. PLATINUM GREEN CHEMICALS SDN
BHD AWARD NO. 1227 OF 2016

Decision: Held in favour of the company: dismissal with just cause and excuse
Reasoning
 Only the second evaluation conducted by her Supervisor had been taken into
account by the company. The first evaluation and the alleged "confirmation"
had merely been one superior’s evaluation of her performance, which had not
been approved by the higher management of the company. Thus, at the point
of her dismissal, the claimant had remained a probationer
 There had not been evidence to show that the company had not acted bona fide
when it had decided not to confirm her.
 Her probation period had been extended but she had been unable to improve
on the areas in which she had been found lacking. There had been nothing to
indicate that she had been victimised or subjected to any unfair labour practice.
 The company, in view of all the evidence adduced in this case, had been
justified in terminating her services without confirming her and her non-
confirmation had been with just cause and excuse.
CHONG PEH YUNG v. PLATINUM GREEN CHEMICALS SDN
BHD AWARD NO. 1227 OF 2016

Background
The claimant was employed by the respondent (hotel) with effect
from 2 July 2001 as its Executive Chef with a salary of RM
10,000.00 per month.
The contract of employment dated 28 June 2001 stated that the
claimant will be placed on probation for a period of 6 months.
JASMAN SAIDIN v. HOTEL ISTANA
AWARD NO. 607 OF 2015

The Claimant’s Case
 The claimant contended that he changed the purchasing system of the Hotel as
inferior quality of food were being brought in.
 The claimant lodged a complaint with the management that only 20 kilos of heating
fires for the food were delivered when the Hotel was in fact billed for 25 kilos.
 He contended that he was unpopular with the management owing to his actions and a
false report against him was filed with the Security Department at the hotel.
 The claimant contended that the false report stated that he had sexually harassed a
staff on 16.12.2001 and he was asked to resign. Subsequently a domestic inquiry was
held on 14.01.2002 on 3 charges.
 The claimant contended that the charges against him were fabricated by the hotel and
he was however found guilty of 2 out of the 3 charges.
 The claimant was terminated with effect from 07.03.2002. He contended that he was
was confirmed on 03.01.2002 vide hotel's letter dated 31.01.2002.
JASMAN SAIDIN v. HOTEL ISTANA (Cont)

The Company’s Case
 The Claimant was subjected to a probationary period as expressly provided for under the
contract of employment.
 During the probationary period, the claimant was found to have committed a number of
acts of misconduct which was sexual in nature.
 He attended a domestic inquiry on 16.12.2001 on 3 charges that they framed against him.
The Company terminated the claimant summarily as he had tarnished the image and
reputation of the hotel.
The Court
 Company’s Solicitors had intimated to the court and the claimant that the Company was
conceding liability for unjust dismissal of the Claimant.
 Therefore the only issue that falls for determination in the given instance is the remedy
(quantum) to be accorded to the claimant by conceding to liability.
Remedy
 Court awarded the case in favour of the Claimant with backwages of RM 240,000.00 (RM
10,000 x 24 months) given the circumstances of the case no straitjacket formula can be
evolved.
 Thus, under these circumstances, the court deems that the court can Award 24 months as
backwages.
JASMAN SAIDIN v. HOTEL ISTANA (Cont)

Thank You
Advocates & Solicitors / Peguambela & Peguamcara
RAJESWARI KARUPIAH
LLB (Hons) London, CLP
rajeswari@rajeslawyer.com

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