Non-confirmation of probationers

Ask most employers why they let a probationer go, and you'll hear some version of: "It didn't work out - they were still on probation, so we're free to end it." That assumption is one of the most persistent and most dangerous in Malaysian HR practice.

Probation is not a trial run with no strings attached. It is not a unilateral option the employer can exercise at will. Under Malaysian labour law, a probationer is dismissed the same way a confirmed employee is dismissed - with just cause or excuse, backed by evidence, and following a process that will hold up if challenged. The label "probationer" lowers the bar for what the employer must prove. It does not remove the bar.

1. Legal Principle: probation ≠ no protection 

   Malaysian Industrial Court jurisprudence has consistently held that a probationer enjoys the same protection against dismissal without just cause or excuse as a confirmed employee. The employment relationship is protected from the first day of service, not from the date of confirmation.

   Probation affects how much evidence an employer needs to justify dismissal for poor performance. Stronger evidence is generally needed for a confirmed employee with a long service record. For a probationer, the employer is still assessing whether the employee meets the basic requirements of the job.

   However, the employer must still have a genuine reason supported by evidence and follow a fair process. The reason must be backed by written records of the performance assessment, rather than explanations given only after the dismissal.

   The statutory route for a probationer who believes they were let go without just cause is the same one available to any dismissed employee: a representation under Section 20 of the Industrial Relations Act 1967, referred to the Industrial Court if conciliation fails
   

2. Just cause or excuse - what it actually requires

   "Just cause or excuse" is a legal phrase, but the concept behind it is simple: a genuine, provable reason for termination - poor performance, misconduct, or unsuitability for the role; not a feeling, an impression, or a personality clash dressed up as a performance issue.
   

   The Industrial Court looks for written records of performance concerns raised during probation. Explanations developed only after the decision to dismiss are less convincing. This is where employers often run into difficulty: an employee’s lawyer can more easily challenge reasons that appear to have been added later. A dismissal is easier to defend when the termination letter reflects performance concerns already recorded and discussed with the employee.
   

3. Communicated gaps - telling the employee what's wrong, in writing

   The single most common failure pattern in probation-dismissal claims is the same, case after case: no written KPIs were set, no mid-point review was conducted, and whatever performance gaps existed were either raised only verbally - or never raised at all.
   

   This matters for a second reason beyond just the dismissal itself: confirmation-by-default. Employers cannot simply sit on a probationer's file, say nothing, and refuse or delay confirmation indefinitely without a valid reason. If the employer fails to act, to review, extend, confirm, or terminate within a stipulated or reasonable period, the employee may be treated as deemed confirmed. Silence is not a neutral holding position; it is a risk that compounds the longer it's left unaddressed. 
   

   This principle was reinforced in Norkhairul Anuar Mohamed Nor v Symmid Corporation Sdn Bhd (Industrial Court Award No. 431 of 2025, Case No. 7/4-1004/22), where the ruling held that an employer who fails to perform its own basic obligations within a reasonable time cannot later shift blame onto the employee to avoid liability. Put plainly: if the employer didn't do its part: set expectations, review performance, communicate gaps, it cannot use the employee's uncorrected shortcomings as the basis for dismissal.
   

4. Warning and opportunity to improve

   Even where a genuine performance gap exists, the employer must show the probationer was given a genuine opportunity to close it. That means reasonable time, reasonable resources, and some combination of coaching, training, or counselling, not simply a verbal "you need to do better" followed weeks later by a termination letter. 
   

   In practice, a defensible improvement process has recognisable markers: a written improvement plan (a probationer form would suffice), measurable targets rather than vague expectations, a realistic timeframe, and a second checkpoint before any termination decision is finalised.
   

   Consider two employers. The first dismisses a probationer based only on the manager’s opinion, without written warnings or recorded performance reviews. The second holds three documented reviews, gives the employee an improvement plan with clear targets, and provides support and a chance to improve before deciding to dismiss.
   

   The second employer is in a stronger position to defend an unfair dismissal claim under Section 20. Both may have the same performance concerns, but the written records help show that those concerns were genuine and the employee was treated fairly.
   

5. Recent Malaysian case: Amarjit Kaur a/p Jaktar Singh v Foundever Malaysia Sdn Bhd - Industrial Court Award, Case No. 12/4-1142/25

   The facts: The claimant, a probationary employee, alleged she was dismissed while on medical leave, and that she was accused of poor performance without supporting evidence. The company's HR Director testified in the proceedings; notably, the claimant's direct superior - who would ordinarily have firsthand knowledge of her performance, had since left the company and returned overseas, meaning the employer had to rely on documented records rather than live testimony from the immediate supervisor.
   

   The principle restated by the Court: consistent with the Court of Appeal's earlier position in Khaliah Abbas v Pesaka Capital Corporation Sdn Bhd [1997] 3 CLJ 827, a probationer enjoys the same rights as a confirmed employee and cannot be dismissed without just cause or excuse. The dismissal must also be bona fide - if it amounts to a colourable exercise of the employer's power to dismiss, or is the product of discrimination or an unfair labour practice, the Industrial Court can intervene and set it aside. 
   

   The outcome: the claim was dismissed. The employer's documented basis for the decision held up under scrutiny, even without the original supervisor available to testify.
   

   The takeaway: the employer didn't win because the employee was "just a probationer." It won because the file could speak for itself when the person who built the performance case was no longer in the room. That is the standard every employer should be building toward - a record that survives even if the manager who wrote it is gone by the time a claim is heard.
   

6. Cost of getting it wrong

   The stakes here are not theoretical. Analysis of Industrial Court decisions as of 2025 shows employers winning in just over half of dismissal cases - meaning a substantial share of terminations, including probation dismissals, still go against the employer.

   The cost of losing extends well beyond back-wages and compensation in lieu of reinstatement. There's the operational cost too: reprocessing a hire, the lost ramp-up time already invested in the departed employee, and the disruption to the team left to absorb the gap. A weak paper trail doesn't just lose cases - it wastes the very investment the probation period was meant to protect.

Conclusion  

Probation is a documented evaluation process with a lower evidentiary bar, not a free pass, and not a free trial. Employers who treat it as an at-will arrangement are operating on a myth the Industrial Court has repeatedly rejected. The real protection an employer has when a probation doesn't work out isn't the word "probationer" on the employment letter. It's the paper trail built during the months before the decision was made.

Pre-termination checklist