The Story

When Daniel joined a mid-sized IT company, he was told he would be on probation for six months. “After that,” his manager explained, “we’ll confirm your position based on performance.” Daniel accepted, believing six months was reasonable.

But six months passed, then nine, and then twelve. Each time he asked about confirmation, HR replied vaguely: “Management is still reviewing your case.” Meanwhile, Daniel continued to carry the same workload and responsibilities as confirmed staff—but without confirmation benefits such as medical coverage, increments, and job security.

After a year, Daniel grew frustrated. He wondered: How long is too long for a probation period? Is there a law that protects employees from being kept in probation indefinitely?

The Law

1. Employment Act 1955 (Act 265)
Interestingly, the Employment Act 1955 does not specify the length of probation. The Act covers minimum benefits such as working hours, leave entitlements, and termination rules, but it leaves probation arrangements to contracts of service.

This means:

• Employers are free to set probation periods in the employment contract.
• Common practice in Malaysia is 3 to 6 months.
• Some contracts allow for extensions, usually another 3 to 6 months, depending on performance.

2. Confirmation Is Not Automatic
Being on probation does not mean automatic confirmation after the stated period. Unless the contract specifically says “confirmation is automatic after 6 months,” the employer must actively issue a confirmation letter.

3. Rights of Probationers
Probationers are still employees under the law. This means:

• They are entitled to benefits under the Employment Act (annual leave, sick leave, overtime, etc.), proportionate to their length of service.
• They cannot be dismissed without notice or inquiry. The same rules on termination apply:
  • Section 12 requires notice of termination.
  • Section 14 requires due inquiry if dismissal is for misconduct.

4. Industrial Court Position
The Industrial Court has repeatedly held that probationers have the same rights as permanent employees in matters of fairness. The only distinction is that probationers are under assessment for suitability.

However, keeping an employee on probation indefinitely without valid reason may be considered unfair labour practice. If challenged, the Court will examine whether:

• The probation period was reasonable.
• Extensions were justified and documented.
• The employer acted in bad faith to deny confirmation benefits.

5. No Indefinite Probation
While no statute caps probation length, Industrial Court awards generally frown upon probation lasting beyond 12 months unless there are exceptional reasons. Long probation without justification may be treated as constructive unfairness.

Lessons

For Employees:

1. Check your contract. See how long the probation is stated and whether extensions are allowed.
2. Ask for feedback. If your probation is extended, request written reasons and performance criteria.
3. Know your rights. Even as a probationer, you enjoy Employment Act benefits and cannot be arbitrarily dismissed.
4. Challenge unfair practice. If probation is unreasonably prolonged, you may bring the matter to the Industrial Relations Department.

For Employers:

1. Be clear and fair. State the probation period in contracts (typically 3–6 months) and limit extensions.
2. Document performance reviews. If extending probation, give written reasons and specific goals.
3. Avoid abuse. Using probation to deny confirmation benefits while expecting full duties can be challenged as unfair.
4. Confirm promptly. Once an employee proves their capability, issue confirmation to strengthen morale and loyalty.

For HR Practitioners:

1. Standardise policy. Most organisations adopt a 3–6 month probation with one extension. This aligns with market norms.
2. Monitor timelines. Keep track of probation expiry dates and remind managers to review employees promptly.
3. Train supervisors. Managers should give feedback early rather than dragging probation unnecessarily.
4. Protect company reputation. Overuse of probation damages employer branding and may deter talent.

Conclusion

So, how long is too long for a probation period?

• Legally, the Employment Act 1955 does not fix a maximum. The length is a matter of contract.
• Practically, Malaysian norms are 3–6 months, with possible extensions up to 12 months.
• Beyond 12 months, unless there are strong and documented reasons, keeping an employee on probation may be seen as unfair labour practice if challenged.

For employees, the lesson is to know your contract, seek feedback, and assert your rights if probation drags on unreasonably. For employers, the lesson is to respect probation as an assessment tool—not as a loophole to delay confirmation benefits.

At its core, probation should test suitability, not exploit uncertainty. A fair employer confirms good employees on time; an unfair one hides behind indefinite probation. The law—and industrial harmony—favour the former.