Probation in Malaysia: What Happens if Your Employers Don’t Confirm You?

Disclaimer: This article should not be considered to be legal advice, and altHR is not liable for any actions taken based on this article.‍‍

Almost all employment agreements come with stipulated probationary periods within them, with these periods usually spanning from 3–6 months for most employees. Even if your company has the most stringent, careful interviewing/recruitment process, there are still a plethora of factors that determine whether a fresh hire will succeed within the team over an extended period of time. 

The number being thrown around most often with regards to this is that roughly 1 in 5 (or 20%) of new recruits will fail to pass their probation period. This statistic highlights the need for a probation clause within all employment contracts, which also usually allow for shorter notice periods if either party chooses to end the employer-employee relationship. 

So, if you’re an employee who is beginning to reach the end of your probation period, or if you are an employer or HR professional who is trying to understand the ins-and-outs of the probation period in Malaysia, you’re in the right place. Let’s get to it. ‍

What does the law say about Probation in Malaysia?

Employment law in Malaysia is largely governed by the Employment Act 1955, although there is no technical definition of what a probationer is. According to case law in Malaysia, however, a probationer can be differentiated from a confirmed employee as an employee who is undergoing a trial period of sorts to determine their long-term suitability for the role. 

What’s important to understand here is that a probationer enjoys the same rights as a confirmed employee. This basically means that employers cannot terminate a probationer’s service without just cause or excuse; affected employees on probation can make a claim to the Director-General for Industrial Relations for unfair dismissal if they feel that this right has been infringed upon.  

The term “just cause and excuse” generally means that as employers, you must have valid reason to dismiss an employee — whether they are on probation or not. ‍

What is assessed during the probationary period?

Of course, one of the most important things to assess during a probationary period is work performance, and suitability for the overall role in the company. However, employees may also be judged based on things like conduct and attitude, as well as culture fit with the team. 

Broadly speaking, Malaysian case law dictates that work performance is gauged based on: 

• Inefficiency 
• Incompetence 
• Ineptitude
  

During this period, employers should also schedule in regular check-ins with the probationer, so that they are fully aware of any gaps in expectation and performance. Regular evaluations should be documented and signed by probationers and managers, and there should be sufficient opportunities for the employee on probation to improve their work performance, or to act on any constructive feedback given.

What happens if employers don’t confirm you, but don’t terminate you? 

Your probation period will be stated in the employment contract — as mentioned above, this part of your contract should also state how long your notice period will be, and what this period means in terms of benefits or remuneration for you. 

At the end of your probation period, your managers, employers, and HR department will consider all factors in play, and there will usually be a probation review. This will be a chance for both employers and employees to discuss the probation period, and how it affects plans moving forward. And of course, if the employee has been confirmed, or if the probationary period is to be extended (or, if employment is to be terminated). 

However, if you’ve reached the end of your probation period, and your employers haven’t informed you if you’ve been confirmed or terminated, you might be wondering: have I been automatically confirmed? 

The short answer: no. This is a common misconception, as there is no provision in Malaysian law for automatic confirmation. For an employee to have been confirmed (or terminated), they should receive notice at the end of the probation period. Do note that this notice may be implied by conduct, which basically means that if you treat the probationer as if they are a confirmed employee — with benefits accordingly — the courts might recognise that the probationer has been confirmed. 

To avoid any confusion, employers should always have an evaluation and review session at the end of the probation period, and confirmed employees should be issued an official confirmation letter from HR.