How do you determine whether an employee is a confirmed employee or still a probationer in Malaysia?
Abu (not his real name) believed that he is a confirmed employee as he had completed his probationary period of 3-month and had been working in the company for 1 year. The company had neither extended his probationary period nor confirmed his position in writing.
Is Abu a confirmed employee or still a probationer?
O.P. Malhotra in his authoritative text book, ‘The Law of Industrial Disputes, Volume 1, Fifth Edition’ states that at “An express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. The reason for this is that whereon the completion of the specified period of confirmation, the only possible view to take, in the absence of anything to the contrary in the original order, appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. In other words, there is no automatic termination of service a soon as the probation expires because that can be done only by a specific order to that effect.”
Sorry Abu, you may still be regarded as a probationer.
Mahadi Muhammad (Owner and Principal Partner)
Law Firm: Messrs Mahadi Redzuan & Co (Advocates & Solicitors) Kuala Lumpur
Email: mrco_legalfirm@ yahoo.com.my
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