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Employer’s Discretion in Confirming or Not Confirming an Employee Under Malaysian employment law, during probation, employers have the discretion to extend, confirm, or terminate employment based on their assessment. It is generally within the employer’s prerogative to decide not to confirm an employee without providing a reason, as long as the decision is bona fide and exercised in good faith ["
DAVID GERARD MOK CHEE KEONG vs DK-MY PROPERTIES SDN BHD - Industrial Court
"], ["ANNE ADELINE ANTHONY RAJU vs SERI ANGGUN CONDOMINIUM JMB - Industrial Court
"], ["THURKA THEVI MOHAN vs ACE GREENCEMT VENTURE (M) SDN BHD - Industrial Court
"], ["CHAN YEON KUM vs STAMPRO INTERNATIONAL (M) SDN BHD - Industrial Court
"], ["C INDRAN P N CHITRAN J vs MUTIARA TCB HOTEL MANAGEMENT SDN BHD - Industrial Court
"], ["BAGHIYALATCHMI RAJASAGARAN vs CONCENTRIX CVG MALAYSIA SDN BHD - Industrial Court
"], ["LEO MEI YOONG vs ACTIVE BUILDING DEVELOPMENT SDN BHD - Industrial Court
"], ["LIM CHUN WEI vs SF METAL SDN BHD - Industrial Court
"], ["TAN CHENG LENG vs EPSILON MANAGEMENT SDN BHD - Industrial Court
"], ["KOGILAVANI GOPAL vs ARNOLD ANDREW & CO - Industrial Court
"], ["INTAN MASLINA ABDUL AZIZ vs NITYO INFOTECH SERVICES SDN BHD - Industrial Court
"], ["ZUN NASRI KASIM vs MALAYSIA LAND PROPERTIES SDN BHD - Industrial Court
"], ["VERONICA RAJANDRA vs OROAPAC MALAYSIA SDN BHD - Industrial Court
"], ["U.S. FEED GRAINS COUNCIL vs CHUAH CHONG TIT - Industrial Court
"], ["SYED A FARIS ALJUNID SYED HARUN vs MBSB BANK BERHAD - Industrial Court
"], ["CHONG POH LUM vs PASTEL GLOVE SDN BHD - Industrial Court
"], ["GOH BOON HOOI vs TRIVE INTERNATIONAL CONSULTANCY SDN BHD - Industrial Court
"].Legal Principle of Bona Fide Exercise of Discretion The courts have emphasized that the employer’s discretion must be exercised bona fide. If the employer reasonably believes the employee is not suitable, they may lawfully choose not to confirm, even without providing reasons. However, this discretion should not be exercised arbitrarily or in bad faith ["
DAVID GERARD MOK CHEE KEONG vs DK-MY PROPERTIES SDN BHD - Industrial Court
"], ["THURKA THEVI MOHAN vs ACE GREENCEMT VENTURE (M) SDN BHD - Industrial Court
"], ["C INDRAN P N CHITRAN J vs MUTIARA TCB HOTEL MANAGEMENT SDN BHD - Industrial Court
"].Right to Not Provide Reasons for Non-Confirmation Malaysian law recognizes that during probation, employers are not obligated to give reasons for not confirming an employee. The decision to confirm or not is a matter of managerial discretion, provided it is bona fide ["
ANNE ADELINE ANTHONY RAJU vs SERI ANGGUN CONDOMINIUM JMB - Industrial Court
"], ["LIM CHUN WEI vs SF METAL SDN BHD - Industrial Court
"], ["DAVID GERARD MOK CHEE KEONG vs DK-MY PROPERTIES SDN BHD - Industrial Court
"].Legal and Judicial Views Courts have maintained that an employee on probation enjoys certain protections against unfair dismissal, but the employer’s right to decide on confirmation is generally unfettered unless the decision is made in bad faith or is discriminatory. The law does not require employers to disclose reasons for non-confirmation unless explicitly stipulated in employment contracts ["
DAVID GERARD MOK CHEE KEONG vs DK-MY PROPERTIES SDN BHD - Industrial Court
"], ["THURKA THEVI MOHAN vs ACE GREENCEMT VENTURE (M) SDN BHD - Industrial Court
"].Employees on probation do not have an automatic right to be confirmed and can be lawfully dismissed or not confirmed without stating reasons.
Insights:
References:- ["
DAVID GERARD MOK CHEE KEONG vs DK-MY PROPERTIES SDN BHD - Industrial Court
"]- ["ANNE ADELINE ANTHONY RAJU vs SERI ANGGUN CONDOMINIUM JMB - Industrial Court
"]- ["THURKA THEVI MOHAN vs ACE GREENCEMT VENTURE (M) SDN BHD - Industrial Court
"]- ["CHAN YEON KUM vs STAMPRO INTERNATIONAL (M) SDN BHD - Industrial Court
"]- ["C INDRAN P N CHITRAN J vs MUTIARA TCB HOTEL MANAGEMENT SDN BHD - Industrial Court
"]- ["BAGHIYALATCHMI RAJASAGARAN vs CONCENTRIX CVG MALAYSIA SDN BHD - Industrial Court
"]- ["LEO MEI YOONG vs ACTIVE BUILDING DEVELOPMENT SDN BHD - Industrial Court
"]- ["LIM CHUN WEI vs SF METAL SDN BHD - Industrial Court
"]
In the competitive job market of Malaysia, landing a role often comes with a —a trial phase where both employer and employee assess fit. But what happens when probation ends, and the employer drags their feet or outright refuses confirmation without explanation? Under Malaysian employment law, can a company not confirm an employee after probation without reason?
This question strikes at the heart of employee rights and employer responsibilities. Many workers face uncertainty post-probation, wondering if they're automatically permanent or if the employer holds all the cards. This blog post dives deep into the legal framework, drawing from key cases and principles to clarify the rules, exceptions, and best practices. Note: This is general information, not specific legal advice. Consult a qualified lawyer for your situation.
Probation periods are standard in Malaysian employment contracts, typically lasting 3-6 months. During this time, employment is conditional, allowing either party to end it more easily. However, once probation expires, employers must act decisively: confirm the employee, extend probation for valid reasons, or terminate with cause.
The core principle is fairness and timeliness. Employers cannot unilaterally refuse or delay confirmation without a valid reason. If they fail to act within a stipulated or reasonable period, the employee is . This protects workers from indefinite limbo, which courts view as .
As one ruling emphasizes: Where an employer failed to perform the basic task expected from them in a reasonable period of time, they cannot come to Court and blame the employee for the employer's own lack of action merely to avoid liability.
Malaysian law presumes confirmation if employers don't communicate otherwise promptly. Several precedents reinforce this:
states: On successful completion of the probationary period, the new employee will be given a letter of confirmation within seven (7) working days after the expiry of the probationary period. If no confirmation letter or termination letter is given to the employee, it will be deemed that the employee has not been confirmed in his appointment.
However, contrasting views exist; failure to confirm often leads to deemed permanence if no action is taken.
clarifies: If no such letter of confirmation is given to the employee at the end of 3 months or 6 months, as the case may be from the date of his appointment, he shall be deemed to be confirmed in his employment.
These rules stem from the and common law fairness doctrines, ensuring employers act in .
While arbitrary non-confirmation is impermissible, exceptions apply for :
Performance Issues: If the employee falls short, employers can extend probation or terminate. For instance, in
, probation was extended twice due to suitability concerns, leading to non-confirmation: So long as the employer is reasonably satisfied that the employee is not suitable for the job he may be removed. Suitab...
Unsatisfactory Results: Courts uphold non-confirmation for unmet targets or behavioral issues.
notes: As such, the Company had reasonably concluded that the Claimant was not suitable for regular employment with the Company as a confirmed employee... Performance must justify the decision, with proof on the employer.
Contractual Conditions: If the contract ties confirmation to specific milestones (e.g., sales targets), delays until fulfillment may be valid.
Extraordinary Circumstances: Genuine issues like operational crises might excuse short delays, but not indefinite ones. Arbitrary extensions constitute unfair practices, as seen in related disputes where prolonged probation without orders was ruled unfair. 2025 0 Supreme(Ker) 821
Importantly, non-confirmation during probation doesn't always trigger claims unless a fundamental breach occurs. Courts place the burden on employees to prove unfairness.
Employers must:- Communicate Clearly: Notify in writing about status changes promptly.- Document Performance: Base decisions on evidence, not whims.- Follow Procedures: Extensions require notice and reasons.
Employees should:- Track performance reviews and communications.- Seek written clarification post-probation.- Challenge unreasonable delays via the if needed.
Failure to adhere risks legal challenges, including claims for deemed confirmation, back pay, or reinstatement.
Related cases highlight boundaries:
In performance-based dismissals post-probation, courts affirm employer rights if justified. A General Manager's non-confirmation for missing sales targets was upheld, emphasizing no without breach proof. (, Section 20(3))
Indefinite probation without confirmation or termination is unfair. One gardener's four-year probation ended in termination, ruled as unfair labor practice warranting reinstatement. 2025 0 Supreme(Ker) 821
While not Malaysian-specific, principles like justify termination during probation, underscoring suitability. 2022 0 Supreme(P&H) 1427 2022 7 Supreme 783
These align with Malaysian emphasis on .
Malaysian employment law balances flexibility with fairness, protecting workers from exploitation while allowing employers genuine assessments. Stay informed, document everything, and seek professional advice for your case.
References:1.
2.
3.
4.
5.
6. 2025 0 Supreme(Ker) 821
Word count: ~1050. This post is for informational purposes only.
#MalaysiaEmploymentLaw, #ProbationConfirmation, #EmployeeRightsMY
may extend, terminate or confirm the claimant's employment, all of which must be informed to the claimant writing, at the discretion of the Company. ... The above statement of law clearly states the need for a distinction between probationary employment and permanent employment and for this reason an employee cannot expect to be accorded with the same status, rights or privileges as a permanent employee. ... What....
The JMB relies on cl 4 of the Offer of Employment letter in that they may terminate the Claimant without assigning any reason for such termination. Having agreed to this term at the point of employment, the Claimant cannot now claim that her termination was without cause or notice. ... : "4) TERMINATION NOTICE At any time during the period of probation, either initial or extended as the case may be, or on the expiration thereof, your employ....
The above statement of law clearly states the need for a distinction between probationary employment and permanent employment and for this reason an employee cannot expect to be accorded with the same status, rights or privileges as a permanent employee. ... If an employee is not measuring up to his job, it may be because he is not exercising himself sufficiently or it may be because he really lac....
[48] It is not disputed that the Company is entitled, at its discretion, to discontinue the probation or confirm the Claimant on his employment, who is a probationer with the Company at the material time. ... What is more important is that he then went on to say that the above statement of law clearly envisages the need for a clear distinction between probationary employment and permanent employment, and for this reason#....
On 9th May 2005 the claimant was taken into employment on probation as an accounts executive. Her probation was extended twice and ultimately, by letter dated 6th March 2006 the respondent notified her of their decision not to confirm her employment and that her last day would 15th March 2006. ... So long as the employer is reasonably satisfied that the employee is not suitable for the job he may be removed. Suitab....
The above statement of law clearly states the need for a distinction between probationary employment and permanent employment and for this reason an employee cannot expect to be accorded with the same status, rights or privileges as a permanent employee. ... What is more important is that he then went on to say that the above statement of law clearly envisages the need for a clear distinction between probationary employment and permanent ....
(iv) Further and alternatively, the Company states by reason of the Claimant's conduct as pleaded, the Company is justified in refusing to confirm the Claimant in her employment. ... But, again, if we may add, these are not "passwords" that the failure to use them or if some other words are used, the decision is automatically rendered bad in law. ... As such, it is clear that the Claimant's employment with the Company#HL_....
the right to confirm or terminate the Claimant's employment, or to extend the Claimant's probation period. ... However, this discretion must be exercised bona fide by the company. As long as the employer is reasonably satisfied that the employee is not suitable for the job, he may be removed. ... [61] This in itself was sufficient for the Company to not confirm the Claimant's employment upon the ....
breach, had left the employment and not for some other reason; and (d) that the Claimant left at an appropriate time soon after the breach. ... As such, the Company had reasonably concluded that the Claimant was not suitable for regular employment with the Company as a confirmed employee for the remaining period of his fixed term contract. ... and suitability which will entitle him to transcend from being an employee on pr....
The Company was not obliged to confirm the Claimant upon the expiration of the three (3) months probationary period. D. ... As such, the reason given by the Company for not paying the Commission is merely an excuse for the Company to not pay any commission at all. ... Ang Eng Sew the Chairman, Dato' Sabarudin (as he then was) quoted the above passage from Malhotra's book and said: "The above statement of law clearly states the need ....
An employee on probation cannot be denied employment without formal confirmation; arbitrary extension of probation constitutes unfair labor practices. 2. The 2nd respondent was appointed as a Gardener on probation in the school run by the Management, with effect from 01.07.2005, as per Ext. P5 order. He continued on probation without any order confirming his appointment, and his service was eventually terminated with effect from 01.04.2009 due to unsatisfactory performance. 1. The petitioners in this original petition are the Principal and the Secretary of Bharathiya Vidya ....
(i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college etc.; and (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case). Thus an employee on....
Thus an employee on probation can be discharged from service or a prospective employee may be refused employment: (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case). (i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other ....
In judging whether a rule is just, fair and reasonable, it must be seen that the rule does not suffer from the vice of Articles 14 and 16 of the Constitution or any other constitutional guarantee. So an employee on probation must be deemed to have been confirmed after the completion of two years of probation.
The Company, therefore, did not confirm the Petitioner’s employment and he continued to be on probation period. Since the Petitioner failed to display any sign of improvement in his competency or behaviour, the Company was constrained to terminate his employment with immediate effect vide letter dated 16th June, 2015. Despite being afforded several opportunities and efforts of the Petitioner’s reporting officer, reviewer and the HR, the Petitioner failed to display any improvement in his competency, behaviour and disciplinary front. In terms of Clause 7 (a) of the Appointme....
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