(Employment) Understanding Your Rights and Responsibilities: 7 Things A Probationer Should Know

It can be an exciting yet challenging experience being a probationer. While probationary periods serve as a trial period for both the employer and the employee, it is essential for probationers to understand their rights and responsibilities during this phase. We explore seven crucial aspects that working probationers in Malaysia should be aware of.??????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????

1.???????????? Probationary Period / Duration

The duration of the probationary period can vary from one company to another and depends on the terms stated in the employment contract since there is no legal requirement on the length of probation. Typically, probation periods in Malaysia range from three (3) to six (6) months, depending on the duration stated in the employment contract.

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In the current, more fluid work environment, the duration of probation periods is increasingly adaptable. Organisations are recognising the need for tailored probation lengths based on role complexity and the adaptability required in different job functions.

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2.???????????? Definition of “Probationer” or “Probationary Period”

While probationary periods are a common practice for employers to include in employment contracts, both “probationer” and “probationary period” are actually not defined or mentioned anywhere in the Employment Act 1955 or the Employment (Amendment) Act 2022.

Probation is in fact not a legal requirement and an employer is allowed to “confirm” an employee before the end of the probation period. Post pandemic, there is a growing emphasis on aligning probationary terms with the realities of modern work, including considerations for remote and flexible working arrangements.

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3.???????????? Employment Contract and Terms for Probationers

Probationers, like regular employees, are entitled to a written employment contract stating the terms and contract of their employment. Since there is no legal definition or mention of “probationer”, “probation” or “probationary period”, this means that the terms of the employee’s probation will usually be determined in the employment contract, which includes the duration of the probationary period, renumeration, working hours, notice period as well as any benefits such as annual leave.

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Contemporary agreements are increasingly addressing aspects like digital work etiquette, data security, and remote performance metrics. The focus is on crafting contracts that are not only legally sound but also empathetic to the new realities of work life. Employees are to understand their employment contract carefully, and to seek clarification on any points of uncertainty before signing it.

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4.???????????? Confirmation of Probationer

It is a common misconception that employees are automatically confirmed at the end of the probation period if the employer does not extend the employees’ probationary period or fails to confirm the employee at the end of their probationary period. Although it is not provided under any legislation in Malaysia, Malaysian Courts have established that if there was no action taken by the employer either to confirm, terminate or extend the employee’s probationary period, then the probationer continues to remain in service as a probationer.

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The exception to this would be if it is provided in the employee’s employment contract that there would be an automatic confirmation upon the end of the probationary period or clauses of similar nature. It is an unpredictable and uncertain situation to be in, in particular for the probationer. It is therefore important to seek for/obtain a letter of confirmation from the employer, preferably before the end of the probationary period.

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5.???????????? Termination Notice Period

As mentioned above, terms such as the notice period are not stipulated in the Employment Act 1955 or the Employment (Amendment) Act 2022 and therefore is subject to the terms agreed upon by the employer and the employee in the employment contract.

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Both the employer and the probationer have the rights to bring an end to the employment during the probationary period. In general, the notice period for probationers is shorter compared to those on confirmed employment. Therefore, both employers and employees should be clearly aware of the notice period stated in the employment contract.

6.???????????? Entitlement to Benefits

A question asked fairly frequently? is whether an employee on probation is eligible for benefits such as annual leave. In general, an employee is entitled to any benefits provided for within the terms of the employment contract. Hence in order to avoid confusion, employers should state clearly in the employment contract whether the employee is entitled to such benefits during the probationary period. Alternatively, if benefits such as annual leave are not stated in the employment contract, the employee can clarify with the employer after receiving the employment contract.

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7.???????????? Rights of Probationers

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What is important to understand is while employees on probation may not be entitled to benefits such as annual leave, there are some rights in which they are entitled to as if they are a permanent or confirmed staff, and that his or her services cannot be terminated by the employer without just cause or excuse. This means that an employer cannot simply terminate the services of the probationer and the affected probationer can make a claim or bring a lawsuit against the employer for unfair dismissal if he or she deems that the termination was done unfairly.

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The employer must have strong justification and reasons to dismiss a probationer. What this means in practice is that employers would have to go through the termination process of the probationer in a fair manner just like any other permanent or confirmed employee.

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Adapting to a Transformative Work Era

Being a probationer in Malaysia comes with its own set of rights and responsibilities. By familiarising themselves with the duration of the probationary period, carefully understanding the terms of their employment contract, and knowing their entitlements, probationers can facilitative of being treated fairly and in accordance with the law. It is also crucial for probationers to actively seek feedback, take advantage of training opportunities and strive for continuous improvement during this period.

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The probationary period in Malaysia's evolving workplace requires both employers and employees to be more adaptable and informed. The changes brought about by the pandemic and technological shifts demand a reevaluation of probationary practices, emphasizing flexibility, clear communication, and mutual respect. This dynamic landscape offers a chance for both parties to foster a more engaging and progressive probationary experience, reflective of contemporary work values and ethics.

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Whether probationers are ultimately confirmed as permanent employees or not, the knowledge and experience gained during their probationary period can contribute to their professional growth and success. By staying informed and proactive, probationers can maximize their chances of a smooth transition into their desired career paths.

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