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Terminate a Probationer without "Just Cause or Excuse"

Updated: Nov 14, 2023

Probation periods give the employer the opportunity to assess new recruits on the job. Similarly, the probationer will also assess whether they want to stay in the company after the period ends. The probationer is entitled to terminate the employment without any reason. However, does this mean the employer can do the same?

The law recognizes the probationer enjoys the same rights as a confirmed employee. It is trite that the requirement of just cause or excuse is essential in the termination of an employee including the probationer. As such, if the dismissal or termination is found to be a result of discrimination or unfair labour practise, the Court has the jurisdiction to interfere and to set aside such a dismissal.

What can a Probationer claim

The difference between a probationer and a confirmed employee is the remedy that will be granted by the Industrial Court. The Industrial Court will not order to reinstate a probationer as it would not be beneficial to either the probationer or the company nor would it be in the interests of industrial harmony. If the Industrial Court finds that the probationer is terminated without just cause or excuse, the probationer will be entitled to compensation in lieu of reinstatement calculated in the nature of backwages of a maximum of 12 months based on the last drawn salary (where confirmed employees are entitled to a maximum of 24 months backwages).

As such, employers nowadays should arm themselves with the right skills, knowledge, and qualifications in managing employees and dealing with complaints of unlawful dismissal in Malaysia. It will also serve as the best defence of the employers in protecting themselves against unwanted consequences when a claimant institutes an unfair dismissal lawsuit against them.


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