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Probationary period is for employer to test / assess the suitability of the employee for the assigned to him - aptitude, attitude, ability and adaptability.
A probationer should be supervised closely during this period - given guidance, advice and correction to enable him to meet the needs and expectation of the company.
The law is silent on the duration of the probation period - however the norm in the private sectors  - 3 months for non-executive position and 6 months for executive and managerial positions.

The period may also be extended to a further 1 - 3 months or depending on the discretion of the employer - but the probationer must be informed of this extension BEFORE the end of the initial probation period .

The employee also should be informed of the specific areas where the employer would like him to improve on his performance - to enable him to defend himself and strive to meet the expected goals

At the end of the probation period - if the employee turns out to be unsuitable for the job - then the employer has the right to terminate his service at the end of the period and NOT before.i.e. the probationer has no lien on his post
The test of suitability to the company’s satisfaction - subjective but should be reasonable , not arbitrary.

In the case of Prime Granite (M) Sdn Bhd v. K. Sumathy Kunjamboo [2000] 3 ILR 425, the Industrial Court held;
"The Company has to adduce evidence that during the probationary period it found the probationer employee to be unsuitable for the job for which she was recruited. In order to satisfy this condition the Company has to adduce evidence to show that the Company had taken reasonable steps to maintain appraisal of the probationer throughout the period of probation, giving guidance by advice or warning when such was likely to be useful or fair. When the appraisal is being done by the Company, the person who evaluates must do so in the Claimant's presence. This would enable the Claimant to express his view and objections against poor ratings as in this case... It is the opinion of this Court that if the work of the Claimant was not satisfactory then the employer should have counselled, warned, reprimanded and even suspended her before the employer could take action to dismiss the Claimant.
The termination too should not be mala fide - must be with just cause
A probationer so terminated  can question the decision through Sec 20 of the Industrial Relations Act 1967
If the probationer commits misconduct - may be dismissed AFTER due inquiry even before the end of the probation period.

Where a probationer continues in employment after expiry of the probation period, the question is whether, in law, he or she is deemed to have been confirmed?
This was settled by the Federal Court in K.C.MATHEWS v. KUMPULAN GUTHRIE SDN BHD [1981] 2 MLJ 320 and V.SUBRAMANIAM v. CRAIGIELEA ESTATE [1982] 1 MLJ 317. ;  where it was held that if, after the expiry of the stipulated probation period, no action is taken by the employer either by way of confirmation or by way of termination, an employee continues to be in service as a probationer.
However, some uncertainty seems to have arisen after the Court of Appeal decision of ABDUL MAJID v. PAARI PERUMAL [2002] 2 MLJ 640 (but this should be relegated to its own facts).
A probationer under any other circumstances is considered an employee and if comes under the purview of the EA - should be entitled to all the minimum benefits stipulated by the Act.

In the case of Fakir Abdul Jalil Bin Pakir Mohamed v. Shell Refinery Co. Bhd. (Award No. 20 of 1974) the Court states;
The dictionary meaning of "probation" is given as the "testing of conduct or character of a person" and a "probationer" is one who "is on trial or in a state to give proof of certain qualifications for a place or state". The idea of probation in all cases of services contracts is, therefore, a testing of the character and capabilities of the servant on the employer's side, and also a testing of the conditions of service on the employee's part. The period of probation in a service contract can, therefore, be taken as a communication by the employer that in case the employee proves himself, within the period of probation, to the satisfaction of the employer, that he (the probationer) is a fit and proper person to perform the duties for which he has offered his services, the probationer would be entitled to be confirmed or taken in on a permanent basis. The appointment of a person on probation is, therefore, tentative and dependent on the employer's satisfaction as to his suitability.

Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd [1997] 3 CLJ 827 is a case involving a probationer who was not confirmed at the end of her probationary period. In its decision at page 831, the Court of Appeal held as follows:

"It is our view that an employee on probation enjoys the same rights as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse. The requirement of bona fide is essential in the dismissal of an employee on probation but if the dismissal or termination is found to be a colourable exercise of the power to dismiss or as a result of discrimination or unfair labour practice, the Industrial Court has the jurisdiction to interfere and to set aside such dismissal. In the present case we find that the Industrial Court made a finding of fact that the dismissal of the appellant was without just cause or excuse."
HOW LONG IS A PROBATIONARY PERIOD? HOW LONG IS A PROBATIONARY PERIOD? Reviewed by Kamaruddin Mahmood on 1:51:00 PG Rating: 5

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