“Are you confirmed now?”
“Yes, I am. Nightmare is over.”
——–(.<>.)——–
I was a probationer too, so I can understand how it could affect one’s sleep for it can be so ‘uncertain’.
Anyways, when it comes to case law relating to probationers, there is a lot to write about actually.
We can start with learning the basics from these 2 cases which are often cited in court.
Case 1: Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd (1997) 3 CLJ 827 where the court stated:
“It is our view that an employee on probation enjoys the same right as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse.”
Case 2: Ranbaxy (Malaysia) Sdn Bhd v. Vijaya A Rajadurai (1999) I ILR 430 where the court stated:
“… the issue for the court to determine is whether the company on a balance of probabilities has established the poor performance of the claimant. As far as unsatisfactory performance is concerned, the Industrial Court has laid down that in order to justify the dismissal of the workman on this ground, the employer has to establish:
i) that the workman was warned about his poor performance;
ii) that the workman was accorded sufficient opportunity to improve; and
iii) that nonwithstanding the above, the workman failed to sufficiently improve his performance.”
In both cases, it’s very aligned with what I had shared in the past 2 days. The keywords are always “just cause or excuse” which means the employer must have a proper justification and reason to terminate.
In a more recent case awarded in 2019, a female employer v. a flour mill company is also a good case to study. Let’s call her Mary Jane (MJ).
In a nutshell, MJ was hired as an Executive. Within her 3 months probationary period, she was transferred to another department. The company didn’t find her performing at the new department & placed her on PIP. In order to give her time to improve, her probation period was not only extended once but twice.
Finally, the company decided that she did not meet the company’s expectations & was not suitable for permanent employment. She was then served a non-confirmation of employment letter, which was as good as dismissing her.
The court found that the company had proved on the balance of probability that the non-confirmation of MJ was a bona fide exercise ie genuine. She was warned about her poor performance & poor character too. The company gave her ample opportunity & time to improve before finally deciding she was not suitable.
Items (i), (ii) & (iii), all checked, hence the court upheld her dismissal was with just cause or excuse.
As simple as that.
Happy weekend everybody! It’s going to be super eventful for me the next few days. Going to be busy, busy, busy for pandemic is over!
Bimbo
#CaseLaw #HRMatters #EveythingisEphemeral
Come Connect with Sim Ling KU #TheAspiredCXO on LinkedIn who is an appointed panel member of the Malaysian Industrial Court by MOHR since 2019. Esp if you need HR advice on similar cases – DM me!
