Probationer and Termination

What is a probationer?

• A student hired to be trained

• An employee who is hired on a trial basis

• A person who is learning skills from the employer

• An employee who is not permanent

What is needed to be mentioned in a probation clause?

• Agreement to not disclose

• Type of work assessment

• Length of probation

• Transferability

What is the important decision in Khaliah Abbas vs Pesaka Capital?

• Probationer must be appraised during their probation period

• Employers must give notice to terminate a probationer

• There is no need to give written warning to probationers

• Probationer has similar rights to an employee

In the Radiant Vision case, the court suggested employer do the following to ensure lawfulness of termination of probationers, EXCEPT for

• Employers give probationers time to improve their performance

• Employers take reasonable steps to maintain appraisal throughout the probation period

• Employers give guidance or warning on any issues of underperformance

• An officer makes an honest effort to assess the suitability of the probationers

What did the court decide on the Sulnayah Mohd Isa case?

• An employee can be terminated during probation period if the standards of performance are not met

• An employee cannot be terminated during probation period unless the assessment done by the employer is with just cause and excuse

• An employee cannot be terminated during probation period except due to gross misconduct

• An employee can be terminated during probation period without the need for domestic inquiry

At the end of the probationary period,

• a probationer must be confirmed in writing

• a probationer's confirmation is assumed if it's not stated otherwise

• a probationer remains a probationer unless indicated otherwise

• staff may enjoy perks and benefits similar to permanent employees

These are examples of confirmation by action, except for

• leave entitlement is increased similar to confirmed staff

• medical benefit is extended similar to confirmed staff

• employee praised by the manager similar to confirmed staff

• given bonus at the end of the year similar to confirmed staff

In Equatorial Timber case, the court decided that the absence of notice during termination due to probation was not unfair dismissal. What is different about the case?

• The case was before the inclusion of sections on notice period in the Sarawak Labour Ordinance

• The employer has shown compassion during the termination action

• The contract of employment did not contain clauses on notice period

• The probationer has committed a misconduct