HR MANAGEMENT - Probationer

PROBATIONER

By Faudzil Harun

Definition of Probation

The term probation is derived from Latin – probatio. It means a period of time to test a person or for the person to test himself to a situation or place. It also mean as a trial period for a master to test the suitability of his servant.

In the Free Dictionary.com

1.  A process or period in which a person's fitness, as for work or membership 

     in a social group, is tested.

2.  Law The act of suspending the sentence of a person convicted of a
     criminal offense and granting that person provisional freedom on the
     promise of good behavior.

3.  The status of a person on probation.

4.  (Business / Industrial Relations & HR Terms) a period during which a new 

     employee may have his employment terminated on the grounds of 

     unsuitability.

In Macmillan Dictionary.com
A period of time during which someone who has been given a new job is watched to see whether they can do the job well and stay in the position.

Type of Probation

1.  Probation for New Employee

     The probationary period is determined by the employer and is usually a 

     period, which the employer feels is required for him to assess the 

     suitability of the newly hired employee. The employee needs to satisfy 

     the employer that he is suitable candidate before he is taken on into a 

     permanent capacity.

2.  Probation for Employees Promoted to Higher Position
     Employers set a trial period to test the suitability of employee to take on 

     additional responsibilities of the new position. The period of probation is 

     a crucial one, which would enable the employer to test the character and 

     suitability of performance of the employee in his new position.

Rights of A Probationer
Some employers are of the mistaken impression that since the employee is on probation, the employee is not the permanent establishment or payroll and he need not accord the benefits of the labour laws to the newly appointed person on probation.  This is not true. A probationer is equally entitled to all the rights and benefits accorded to permanent employees including contributions in respect of EPF, SOCSO, Leave and Holidays under the Employment Act, 1955.

Probationer to Complete the Probationary Term

An employee on probation is on trial. If he is on probation for a certain period, then the employee should be allowed to remain for the whole probation period to prove his capability. The probationer can be dismissed on the ground of misconduct after due inquiry. His service cannot be terminated for poor performance before completion of the whole duration of the probationary period. At the end of the probationary period, employer can decide whether to confirm or even to terminate the contract of employment of the probationer.

Probation Continues if not Confirmed or Terminated
When an employee is not confirmed or his contract is not terminated after the completion of his probationary period, then he will continue as a probationer until a decision is made by the employer. 

Alternative View on Employee Deemed 
to be Confirmed After Probationary Period
The principles of probation continues if employee is not confirmed or contract terminated has been reversed by H.C. Judge Faiza Tamby Chik, in Paari Perumal v Abdul Majid Hj. Nazardin & Others (2000) 2 ILR.

The claimant at the end of his 3 months probationary period, was not confirmed or terminated. He was given annual leave but he was not given an increment of RM100/- upon confirmation as mentioned in his contract. He left the company and filed a claim for damages for breach of contract due to the employer’s failure to pay the increment. The judge found for the appellant and ordered damages. The damages were the increments due to the employee and a further RM700/- per month from April 1995 to May 1996 as the employee found a full time job in June 1996. The judge held that if the employee is not confirmed or his service is not terminated at the end of his probationary period, he should be deemed to be confirmed employee.

Probationer’s Right of Access to Section 20 
of the Industrial Relations Act, 1967
The definition of “workman” in Section 2 of the Industrial Relations Act, 1967 does not differentiate between an employee on probation and a confirmed employee. Probationers just as confirmed employees can file claims for reinstatement under Section 20 of the Industrial Relations Act, 1967. A probationer shall not be dismissed without just cause or excuse.