A common misunderstanding in Malaysian workplaces is that an employee on probation can simply be terminated because he or she has not yet been confirmed.
That is not a safe assumption.
A probationary period gives an employer time to assess whether an employee is suitable for the role, but being on probation does not mean the employee has no employment protection.
In Malaysia’s industrial-relations framework, an employer cannot necessarily rely simply on a contractual termination clause and assume that giving the required notice settles the matter. Malaysian industrial-relations jurisprudence recognizes the principle that dismissal must be supported by just cause or excuse, including where a probationer is involved. JPP Mohr
For HR practitioners and managers, this makes the way probation is managed particularly important.
Can an Employee Be Terminated During Probation?
Yes.
An employer may decide not to continue the employment of a probationary employee where there is a legitimate basis for doing so. For example, concerns may arise regarding:
- work performance;
- ability to perform the responsibilities of the position;
- conduct or behavior;
- attendance or reliability;
- failure to meet reasonable expectations; or
- suitability for the role.
But there is an important distinction between having a genuine reason for termination and simply saying: “The employee is still under probation, so we can terminate at any time.” The latter approach can expose an employer to unnecessary risk.
The Department of Industrial Relations Malaysia states that an employee who considers that they have been dismissed without just cause or excuse may make a representation under Section 20 of the Industrial Relations Act 1967. JPP Mohr
Probation Is an Assessment Period — Not a “No Rights” Period
From an HR perspective, probation should be treated as a structured assessment period.
The employer should use the period to determine whether the employee can reasonably perform the job and meet the organization’s expectations.
This means managers should not wait until the final few days of probation before telling an employee for the first time that his or her performance has been unsatisfactory.
Good probation management should normally involve:
Clear expectations → observation → feedback → opportunity to improve → assessment → decision
This is not merely good employee relations. It also creates a clearer record of how the employer reached its decision.
What If the Employee Is Not Performing?
Poor performance is one of the most common reasons an employer may consider not confirming a probationer. However, saying that someone “didn’t perform” is very different from being able to demonstrate what actually went wrong. For example, instead of recording: “Performance is not good.”
HR and the manager should be able to identify the specific issue:
“The employee was required to submit the weekly production report by Monday noon. During the six-week review period, four reports were submitted between one and three days late despite feedback provided on 10 and 24 March.”
The second version establishes the expectation, the gap and the feedback provided. That distinction can become very important if the termination is later challenged.
Should an Employee Be Given an Opportunity to Improve?
Where the issue concerns performance, a reasonable HR process would normally include communicating the shortcomings to the employee and providing a reasonable opportunity to improve.
Depending on the circumstances, this might involve:
1. Setting clear expectations
The employee should understand what satisfactory performance looks like.
2. Providing feedback
Managers should raise performance problems when they occur rather than keeping them until the end of probation.
3. Documenting the concerns
Important discussions, performance reviews and agreed actions should be recorded.
4. Allowing reasonable improvement
Where appropriate, the employee should have an opportunity to address the identified shortcomings.
5. Reviewing the outcome
The employer can then decide whether the employee has demonstrated the required level of performance.
The exact process will depend on the facts of each case. A performance issue, for example, is different from serious misconduct and should not automatically be handled in exactly the same way.
What About the Notice Period?
The employment contract should always be checked.
Section 12 of the Employment Act 1955 deals with notice of termination, while Section 13 provides for termination without waiting for the notice period to expire by payment of an indemnity equivalent to the wages that would have accrued during that notice period. JTKSM
Many employment contracts specify a different notice period during probation from the notice period applicable after confirmation.
HR should therefore check the employee’s actual contractual terms before preparing the termination documentation.
However, giving contractual notice or salary in lieu of notice should not be confused with establishing the reason for dismissal. Malaysian industrial-relations principles concerning dismissal and just cause or excuse remain relevant. JPP Mohr
Can a Probationer Challenge the Termination?
Potentially, yes.
The Department of Industrial Relations Malaysia states that an employee who considers a dismissal to be without just cause or excuse may file a written representation under Section 20 of the Industrial Relations Act 1967.
The representation generally must be made within 60 days from the date of dismissal, and it may also be filed during the notice period. JPP Mohr
This is another reason employers should not treat probationary termination as an informal administrative exercise.
A Practical HR Checklist Before Terminating a Probationer
Before proceeding, HR should ask:
- What is the actual reason for the proposed termination?
- Can we support that reason with facts?
- Were the employee’s expectations reasonably clear?
- Was the employee informed about the shortcomings?
- Was there an appropriate opportunity to improve, where relevant?
- What do the employment contract and probation clause say?
- What notice period applies?
- Are the manager’s assessment and HR documentation consistent?
- Are there any other legal or employee-relations considerations in this particular case?
If the answers reveal gaps, it may be sensible to address those gaps before making the final decision.
The HR Perspective
Probation should not be viewed simply as an employer’s opportunity to “try out” an employee.
It should work both ways.
The employer is assessing the employee, but the employee is also learning whether the organization, manager and role are suitable for them.
A well-managed probation process therefore should not end with a surprise.
Whether the eventual decision is confirmation, extension or termination, the employee should generally have a reasonable understanding of how the employer reached that decision.
For HR, the objective is not to make termination difficult.
It is to make the process clear, fair, documented and defensible.
Related Reading
Probation in Malaysia: What Employers and Employees Should Know
Disclaimer: This article provides general HR information and is not legal advice. Employment disputes can depend heavily on the particular facts, contractual terms and applicable law.
For official information on dismissal representations, readers can refer to the
Department of Industrial Relations Malaysia — Section 20 Dismissal
Department of Labour Peninsular Malaysia — Employment Act resources.
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