Rights of Probationer

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Individual Essay
Question 6
What are the rights probationers within the context of Malaysian Industrial Relations? In what circumstances can an employer terminate the service of probationer? Cite relevant recent cases to support your arguments.      

HBH324N Managing Workplace Relations
Semester 2, 2011

Done By: Jenny Voon (4211111)

Abstract
This paper offers an overview of the rights of probationers within the context of Malaysian industrial relations. A probationer is someone who has been hired for a limited period on the understanding that the continuation of the contract will be decided at the end of that period. Although the term “probation” is not found in the employment legislation in Malaysia, the Industrial and Superior Court, however, ruled that a probationer enjoys the same rights as a permanent employee. In addition, this paper further analyzes the circumstances where an employer can and has the right to terminate the services of a probationer.

Introduction
The central pieces of legislation governing the employment rights in Malaysia are the Employment Ordinance 1955; the Industrial Relations Act 1967 and the Employment Regulations 1980. The common law as developed by Industrial and Appeal Courts also serves as an important source of law where the term “probation” was ruled in to protect the rights of probationers in the context of Malaysian employment law (Davenport et al 2000). According to Charles (2009, p.436) in A-Z Guide to Employment Practice in Malaysia, 2nd edn, a probationer is a person employed for a limited period with the understanding that the confirmation or termination of the contract will only be determined at the end of the probationary period. The probationary period, however, is not limited or specified under the law as it depends entirely on the employer’s discretion. In common workplace, the normal practice for nonexecutives is 3 months while executive or managerial personnel may be required to undertake a probationary period of 6 to 12 months (Charles 2009, p.436). In the case of Koperasi Serbaguna Pekerja Felda Bhd v. Zainal Arifin bin Mohd Noor (cited in Parasuraman et al 2010, p. 1), the court explained that probationary period serves as an assessment of the employee’s attributes and his capabilities to fulfil duties assigned while giving employer the chance to determine the suitability of the employee for permanent employment (Charles 2009, p.436). In general, probationary period allows employers to decide whether the new employee is appropriate for the job assigned to him or her. Here, employers not only consider the two main aspects: qualifications and skills, but also the overall aptitude, attitude and adaptability of the probationer in the workplace (Parasuraman et al 2010, p.1). While engaging a new probationer, it is employer’s duty to state the duration and terms clearly in the contract applicable during the probationary period to avoid any misunderstanding between both parties (Memo 2006).

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Methodology & Limitations
Both statute and case laws are used to facilitate in this research paper as a source of reference towards the underlying principles of probationers. The Industrial Court cases adopted in this paper were related to the matter of termination and dismissal of probationers and their rights in the workplace. These cases were being critically evaluated where appropriate Court rulings were cited to support the findings made. This paper also involves the use of primary and secondary sources. Primary sources were based on Employment Act 1955 and Industrial Relations Act 1967 while secondary sources consist of Industrial Court cases, journals or reports as well as law books. The limitations in conducting this research paper were mainly concerned with the availability of information associated with probationers’ rights within the context of Malaysia Industrial Relations.

Rights of a Probationer
Where an employee begins employment...
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