Managing Probationer

The Art & Science of Managing
Probationary Employees
(To Confirm, Extend or Terminate?)
March 30th, 2017
© i-HR Consulting Sdn Bhd & Rajeswari Karupiah & Co.

What is a Probationer?
Criminal Perspective and Proceedings
“A convict who is released from prison, provided he maintains
good behaviour”
Employment Perspective
“A person who is serving a probationary or trial period in a job
or position, to which they are newly appointed.”
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Legal definition of a Probationer
3
Rights under the Employment Act:
● The term 'probationer' is not defined in the Employment
Act 1955.
● The Employment Act does distinguish however between
an employee under probation and other employees.
● A probationer will be entitled to the minimum benefits
provided under the Employment Act. There are no
exceptions excluding probationers from such benefits.

Legal definition of a Probationer
4
Rights under the Industrial Relation Act 1967 (IRA):
• ……a probationer has the right to make a representation
to the Director-General of Industrial Relations under
Section 20 of the IRA for wrongful dismissal, if he
considers himself as been terminated unfairly.
• The Second Schedule to the Industrial Relations Act
states that the maximum back-wages ordered shall be
12 months.

What is Probationary Period?
5
• Generally; the probationary period refers to an
introductory period for the employer to assess the
suitability of employee.
• Qualifications and skills alone may not make a good
employee, other factors such as aptitude and attitude
towards work and fellow workers must also be tested
before he can be confirmed as permanent.

EMPLOYMENT CYCLE
Interview
Employment
Offer
Probation
Start
Induction
Managing
Performance
End of
Probation 1,
2, or 3
Employment
Cycle
6

EMPLOYMENT CYCLE(cont’d)
INTERVIEW
● To determine the candidate's suitability for the job – (employers
rightfully need to have right filtration processes, proper interviewing
technique/questions that aligns to the role and to the business
culture and objectives – ensuring good recruitment practices in
place)
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EMPLOYMENT CYCLE(cont’d)
OFFER
● Issuance of the offer letter
needs to comply with the
Malaysian Labour Law and
aligned with the company's
practices.
8

EMPLOYMENT CYCLE
9
PROBATION START
● There is no law determining the
length of a probationary period.
However, there is common practice
that the length of the probation is
relative to the complexity of the
Role. (e.g.: 3 - 6 months)
During the probationary period, a
series of formal performance review
needs to take place.
● The manager should keep detailed
records and documentation of
meetings, ensuring all
documentation is signed-off by both
the employee and the manager.

EMPLOYMENT CYCLE
10
INDUCTION
● Having an orientation and onboarding program is essential
(allowing both parties to gain an understanding of the role,
requirements and expectations).
● Briefing on the job responsibilities and key result areas for
them to achieve (will be reflected in their performance
review)

HOW TO MANAGE A PROBATIONARY EMPLOYEE?
• During a probationary period, the
line manager should follow a
structured programme that is
aimed at assessing and reviewing
the employee's performance,
capability and suitability for the
role.
• The line manager (in consultation
with HR) is responsible to create
and detail the programme
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concisely and clearly
communicate this to the
probationer.

The programme should include:
• regular monitoring of the new employee's performance
through progress meetings;
• identification and discussion of any problem areas at the
earliest possible time;
• the provision of regular and constructive feedback;
• supervisory support and guidance; and
• the provision of any necessary training, coaching and
mentoring.
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• The Line Manager is Responsible for his Probationary Staff (with the
assistance of HR as required)
• This structured programme will include:
 clear job outputs, i.e. what the new employee is expected to achieve
during or by the end of the probationary period;
 the standards of performance required for the role tasks;
 any agreed developmental activities;
 Highlighting key elements of the Code of Conduct and customer
etiquette requirements expected of the role.
13

Training plan shall cover:
 specific skills requirements and gaps;
 general workplace practices;
 product and/or technical knowledge;.
• The training should be structured in stages to enable the employee to
work towards competent performance during and or by the end of the
probationary period.
14

Progress meetings
• conduct meetings at least once
a month during the
probationary period
• meetings allow the employee's
15
performance
discussed
and progress to
with appropriate/
necessary action
following period.
plan for the

Action plans
16
• At the end of each
bothprogress meeting,
parties should agree on an
action plan so that the
canemployee’s progress
be monitored.
• The action plan should be
documented in detail,
stating what should be
done, how and by when.
This way, the employee will
be aware of what is
expected of him or her by
the next review.

Conducting progress meetings
• The monthly progress meetings should be a two-way process which
provides both parties with the opportunity to discuss progress on a one-
to-one and confidential basis.
• Where any concerns have arisen about the employee's performance,
the line manager should discuss these fully, openly and supportively
with the employee and an action plan to remedy the problem should be
agreed.
• Where necessary, the line manager should clearly explain the
consequences of underperforming to the employee. The individual
should be helped to understand that continuous failures could ultimately
lead to his/her probationary period to be extended or his/her
employment being terminated.
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Keeping Records
• The content of all progress meetings should be fully and clearly
documented.
• Provide an accurate record of what was discussed during the
meetings, including any areas of concern, as well as a note of the
areas in which the employee is performing well.
• A copy of the notes should be provided to the employee. If there are
any areas of disagreement over what should be recorded, the
manager should try to resolve these with the employee prior to the
document being signed off by both parties. If these are all done via
email, then a brief email from the employee agreeing to the notes will
suffice.
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Confirmation of Employment
● Confirmation of employment
letter should be given to the
probationary employee on
satisfactory performance.
● Salary increment upon
confirmation is up to the
discretion of the Company.
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Sample
20

Sample
24

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Sample

Extension of probation
• Employee's probationary period could be extended if the
employer feels that the probationer still has room for
improvement.
• The law states that a probationer shall not be deemed
confirmed, unless there is an express act of confirming
the employee.
26

• An employer has the right to terminate an
employee at the end of their probationary
period after following due process.
• Notice period for termination must be
given if an employer decides not to
confirm the employment. Notice is not
required in the case of misconduct.
• The notice period should be as stated in
the contract of employment; however, in
the absence of such provision, the notice
period under Section 12 of the
Employment Act is applicable.
Termination at the end of a Probationary Period
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In the absence of such provision in writing in the contract, the
notice period shall not be less than:-
● Below 2 years of service - Four (4) weeks' notice
● Between 2 to 5 years of service - Six (6) weeks'
● Above 5 years of service - Eight (8) weeks' notice
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Termination at the end of a Probationary Period

Sample
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Industrial Court Award Case Review
Subject: Wrongful Dismissal on Probationer
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Case No; 12(14)/4-391/11
Case was referred by Minister to Industrial Relations Court on August 8, 2014
Claimant: Indra Devi A/P Rajoo
Company: Everhome Furniture Mfr (M) Sdn Bhd
Case Background
● Employed as Jr.HR Executive on 11/2/2009 with RM1,200.00 per month
● On probation for 3 months & subject to further extension at the discretion of
the company.
● Terminated on 15/1/2010, with reason “performance is not satisfactory”
Company’s Statement
She was still a probationer, based on employment letter clause “to serve
probationary period of three (3) months. Your performance will be reviewed by
management who reserve the right to confirm or terminate your employment, or to
extend your probation period”.
Claimant’s Statement
She was a confirmed employee because she has worked more than 3 months (total
of 11 months) without extension or termination.

(Continued)
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Findings
Poor performance is the reason of dismissal.
COW1 (Executive Secretary) - Testified that Claimant made a lot of mistakes
in the report. Claimant was in-charge of changes in HR record, leave &
attendance.
COW2 (HR Assistant Manager) - Identified claimant’s mistakes :
o Letter of Appointment (wrong subsidiary letterhead)
o Filed new employee’s details without checking properly the content.
o Mistakes in doing Memo, Attendance, Leave and Payroll reports
The claimant was issued with a warning for not respecting superior and
reverse delegation of job duties. This was served in her second week of
employment.

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(Continued)
Gaps Identified
No guidance : only given guidance & training during the first month. No
guidance, training or performance appraisal conducted for her poor
performance.
Warning letter only issued on Feb 2009 : The warning letter alleged issued
to the Claimant was on February 2009. Thereafter there was no such warning
letter issued to her.
Invalid warning letter : The warning letter was not signed by either party.
The Company claimed the Claimant's signature was erased by the Claimant.
It is not safe for this Court to accept this document as evidence
No further warning after Feb 2009 : No further warning letter issued & the
Company has failed to give any valid reason for not issuing any warning letter
if the Claimant had performed poorly.

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(Continued)
The Industrial Court’s Rationale and Decision
The employer is responsible to forewarn the employee’s performance and
was given sufficient opportunity to improve themselves. Her performance
must be appraised and evaluated.
Company had failed to discharge its burden of proof on a balance of
probabilities to prove that their reasons for the Claimant's dismissal amounted
to just cause or excuse.
Remedy
Reinstatement would be inappropriate in this case. The Claimant had served
the Company for a period of about 11 months. The Claimant had managed to
secure a job since August 2012 with a slightly lower salary.
Backwages : RM1,200.00 x 5 months : RM6,000.00

Thank You All
32

Managing Probationer

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