How do you determine whether an employee is a confirmed employee or still a probationer in Malaysia?

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.


Article by:

Mahadi Muhammad (Owner and Principal Partner)
Law Firm: Messrs Mahadi Redzuan & Co (Advocates & Solicitors) Kuala Lumpur
Email: mrco_legalfirm@ yahoo.com.my

Connect with Mahadi on LinkedIn

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16 Comments

  1. Azahar Ab Rahim
    Azahar Ab Rahim
    , 2017-08-06

    Let’s say Abu’s situation prolongs until her 3rd year in service. How will the law interpretation in regards to his situation.

    I happened to know about a real case where a senior employer of a Company had remained unconfirmed till his/her 3rd year in service. No communication was provided to this employee for his/her continued probation and the employee had eventually be let go by the end of his/her 3rd year.

    P/s: Apology for the repeated commenting on this as my LinkedIn and the internet services has been intermittent throughout today.

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  2. Mahadi Muhammad
    Mahadi Muhammad
    , 2017-08-06

    Arguably, the employee may still be regarded as a probationer unless the employer readily admits that there was an oversight on their part in failing to confirm him/her or the employee can prove that there was a mala fide intent on the employer’s part in deliberately failing to confirm him/her. Each case turns on its own facts and circumstances which may differ from one another.

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    • Shathirah Bokhari
      Shathirah Bokhari
      , 2017-08-06

      Can the employee take action on the company because of no communication on extending his/her probation period was made?

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      • Mahadi Muhammad
        Mahadi Muhammad
        , 2017-08-06

        It would be wiser for the employee to professionally query HR as to why his position is still not confirmed rather than taking an action against the company. An action that he may opt is perhaps to resign and claim constructive dismissal but he may have an extremely difficult task to prove mala fide.

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  3. Shathirah Bokhari
    Shathirah Bokhari
    , 2017-08-06

    Hi sir. What if the situation is like this. In the offer letter, it is stated that the probation period is 3 months. And after 3 months, the HR has not issuing any letter pertaining to Abu’s confirmation. Can Abu takes this issue to the IR?

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  4. Mahadi Muhammad
    Mahadi Muhammad
    , 2017-08-06

    IR department only deals with those who had been dismissed either directly or constructively.

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  5. Mathew Johnson
    Mathew Johnson
    , 2017-08-06

    The case of Paari Perumal was decided quite differently by Gopal Sri Ram but that was based on the peculiarity of the facts where the employer granted the probationer annual leave …. a privilege given to confirmed employees

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  6. Seenivason Ramasamy
    Seenivason Ramasamy
    , 2017-08-06

    Agreeable to Mathew Johnson. Even the confirmation in employment was not expressed to the staff, but it is implied that he has been confirmed in his employment.

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  7. Mahadi Muhammad
    Mahadi Muhammad
    , 2017-08-06

    As I have clearly explained earlier, each case turns on its own facts and circumstances but the general law still remains.

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  8. Feeli Lai
    Feeli Lai
    , 2017-08-06

    In Abu’s case, if Abu enjoyed compensation and benefits as other confirmed employees such as annual leave or bonus paid out, Abu became confirmed employess by implied terms although without official letter in written

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    • Mahadi Muhammad
      Mahadi Muhammad
      , 2017-08-06

      That’s right Fee Li. That may be the case if Abu did enjoy benefits which would normally be enjoyed by confirmed employees. If there are none and there is no express confirmation of his post after the expiry of his probationary period, he may still be regarded as a probationer. It depends on the peculiarity (or otherwise) of the facts of each case.

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  9. Mahadi Muhammad
    Mahadi Muhammad
    , 2017-08-06

    Let us make it more interesting here. What if the employer can explain to the court that they had overlooked this and it was by honest mistake that those benefits were given to Abu and they maintained that he was still a probationer? You guys may share your thoughts and opinions here….

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    • Yuvarajah Thiagarajah
      Yuvarajah Thiagarajah
      , 2017-08-06

      So, I believe you will do everything within your discretionary powers to hypothetically settle this out of court in win win fashion. And, save Abu, company and overburdened IR court, invaluable time and cost 🙂

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    • Feeli Lai
      Feeli Lai
      , 2017-08-06

      If the employer try to explain, it is an action to deny their fault by giving excuses but the employer is still guilty and Abu became a confirmed employee. Just because Abu is lack of HR knowledge and the employer has abuse their authority.

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  10. Yuvarajah Thiagarajah
    Yuvarajah Thiagarajah
    , 2017-08-06

    Based on precedence case laws, if Abu had enjoyed such benefits meant for confirmed employees, then he is no longer considered a probationer. But, if the company was cautious not to fall for such technical glitches, then Abu remains a probationer until the company confirms him, be it out of deliberate or oversight !. This is something employees must learn as a knowledge worker to secure confirmation of job position. It also goes to the heart of both employee and employer playing a proactive part in fortifying a good performance management system. It is the employee who legally loses out so don’t leave it to the company to act or revert. If the time is up and confirmation is forthcoming, approach the Supervisor or HR and ask for the reason in writing. There must be valid reasons for extension just as there must be just cause and excuse for termination.

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