PROBATIONARY EMPLOYEE
Employment law is one of the area of laws which is critical for either employers or employees to understand and have the basic knowledge. HWAM has built its reputation in providing strategic employment advice to both local and global organisations as well as individual employees. Our work in the labour and employment law sphere can be seen in many reported cases. Our team of employment lawyers provide a wide range of advice on employment law and industrial relations
HWAM had represented a Claimant who was initially hired by a company as a head chef of a Restaurant with a probation period of three (3) months. He was then terminated and later filed a claim against the Company for wrongful termination.
It is trite that an employee engaged on probation is considered as a workman under Section 20(1) of the Industrial Relations Act 1967 and is therefore allowed to make representations in writing to the Director General of Industrial Relations to be reinstated in his former employment in cases of dismissal without just cause or excuse by the employer.
A probationary worker has security of tenure in employment and their services cannot be terminated save with just cause or excuse. They have legitimate expectation to be confirmed in employment and enjoys the same right as a confirmed employee. In the case of SMART GLOVE CORP SDN BHD V INDUSTRIAL COURT, MALAYSIA & ANOR [2006] 6 MLJ 664, where Raus Sharif J (as His Lordship then was) stated:
“It is a well-established principle that a probationer enjoys the same rights as a permanent or confirmed employee and his service cannot be terminated without just cause or excuse. Like a confirmed officer, a probationer is also entitled to compensation when it is found that his service is terminated without just cause or excuse. By s 30 of the Act, the amount of compensation to be awarded is within the discretion of the Industrial Court.”
A probationer’s termination must be proceeded in a justifiable manner, substantially and procedurally on the grounds of suitability of the probationer to the job. Hence, the Industrial Court through an Award dated 18.05.2021 had allowed the Claimant’s claim even though he was just only a probationary employee (AWAD NO. 1042 OF 2021).
When dealing with the complexities of employment law, you should have a professional with the right experience. Do contact us at +603-4044 4758/ hwam@hwam.com.my.
