Can You Be Dismissed During Probation in Malaysia?

No, being on probation does not mean your employer can dismiss you for any reason they like. A probationer can be dismissed if there is a proper reason, such as poor performance, misconduct, or genuine unsuitability, but the decision must still be supported by evidence and handled fairly.

Probation is often misunderstood by both employees and employers. Some employees assume they have no rights until confirmation. Some employers assume probation allows them to terminate without giving a proper reason. Both views are too simplistic.

A probation period is meant to let the employer assess whether the employee is suitable for the role. It is not a period where basic fairness disappears. The employer may have more room to assess suitability, but the dismissal should still be connected to the employee's performance, conduct, role fit, or a genuine business reason.

The key issue is not simply that the employee was on probation. The real issue is whether the employer had just cause or excuse for ending the employment.

Probation is an assessment period, not a free pass to dismiss

Probation allows the employer to assess the employee's ability to perform the role. This may include technical skill, work quality, reliability, attitude, learning ability, teamwork, communication, discipline, and overall suitability for the position.

That assessment must still be genuine. If the employee is dismissed because they were clearly unable to perform the role, repeatedly failed to meet reasonable expectations, committed misconduct, or proved unsuitable for the position, the employer may have a proper basis for dismissal.

But probation does not allow arbitrary termination. An employer should not use probation as a cover for personal dislike, discrimination, retaliation, unpaid salary issues, or a reason invented only after the dismissal is challenged.

A probationer is still an employee. The employment relationship still carries legal consequences.

Notice alone does not make the dismissal fair

Some employers think that if the contract allows termination during probation with short notice, they can dismiss the probationer without any real explanation.

That is risky.

Notice deals with the mechanics of ending employment. It does not automatically prove that the dismissal was fair. If the employee challenges the dismissal, the employer may still need to justify the reason behind the decision.

A termination clause may allow the employer to end employment during probation with a shorter notice period, but the employer should still be able to explain why the probationer was not confirmed or why the employment was ended. The reason may be poor performance, misconduct, unsuitability, redundancy, or another proper basis.

A probation clause is not a shield against scrutiny. If the dismissal is challenged, the surrounding facts and documents will matter.

Poor performance should be documented

Poor performance is one of the most common reasons for ending probation. It is also one of the reasons most likely to be challenged if there is no record.

An employer who says the probationer performed poorly should be able to show what the problem was. Useful records may include work reviews, supervisor feedback, missed deadlines, customer complaints, poor work output, KPI records, warning emails, probation assessments, or written feedback given during the probation period.

The employer does not need to create an overly complicated process for every probationer. But there should be some evidence that the performance concern was real.

If an employee was never told about performance issues, received positive feedback, was given unclear targets, or was dismissed suddenly without explanation, those facts may support a challenge.

For employers, the safer approach is to communicate concerns early. Tell the probationer what is not working, give reasonable feedback, and record the assessment before making the final decision.

Misconduct must be handled differently

Misconduct is not the same as poor performance. Misconduct involves wrongdoing. Poor performance is usually about ability, output, or failure to meet the required standard.

Examples of misconduct may include dishonesty, theft, harassment, violence, serious insubordination, unauthorised absence, falsifying records, leaking confidential information, misusing company property, or breaching important company policies.

Where dismissal is based on misconduct, the employer should investigate the allegation and give the employee a chance to respond. Section 14 of the Employment Act 1955 refers to dismissal on the ground of misconduct after due inquiry.

The point is fairness. The employee should know the allegation and should be given an opportunity to answer it before serious disciplinary action is taken.

For serious misconduct, dismissal during probation may be justified. But the employer should still have evidence and should still handle the process properly.

Unsuitability must be genuine and connected to the role

Sometimes the issue is not a specific act of misconduct or one clear performance failure. The employer may decide that the probationer is simply not suitable for the role.

That can be a valid reason if it is genuine. Suitability should be connected to the job, the employee's ability to perform, the team structure, the nature of the work, or the reasonable needs of the position.

For example, a probationer may be unsuitable because they cannot cope with the work, cannot follow required processes, cannot adapt to the role, or consistently fails to meet reasonable standards despite feedback.

But "not suitable" should not be used as a vague label to hide an improper reason. If the real reason is personal dislike, retaliation, discrimination, or a reason unrelated to the job, the employer may struggle to justify the dismissal.

A proper probation assessment helps. It shows that the decision was based on work-related considerations, not convenience or afterthought.

Probation can be extended, but it should be clear

Some employment contracts allow the employer to extend probation if the employee has not yet met the required standard. This can be useful where the employer is not ready to confirm the employee but also does not want to dismiss them immediately.

An extension should be communicated clearly. The employee should know that probation is being extended, how long the extension will last, and what areas need improvement.

Leaving probation status uncertain is poor practice. It creates confusion and can lead to disputes over confirmation, benefits, notice period, and employee status.

If the employer extends probation, the reason should be documented. If the employee improves, the employer should deal with confirmation clearly. If the employee still does not meet expectations, the employer should record the basis for non-confirmation or dismissal.

Dismissal at the end of probation still needs a proper basis

An employer may decide not to confirm an employee at the end of probation. That does not mean the employer can act without reason.

If the employee is not confirmed because of poor performance, misconduct, lack of suitability, or a genuine business reason, the employer should record that reason. A short probation review can be useful. It gives the employee clarity and helps the employer show that the decision was considered.

A probationer is not automatically entitled to confirmation. But the decision not to confirm should not be arbitrary.

The employer should avoid vague termination language where a specific reason exists. If the matter later becomes a dispute, the employer will need to justify the decision with evidence.

Retrenchment during probation

A probationer can also be affected by redundancy or restructuring. This is different from poor performance or misconduct.

If the business genuinely no longer requires the role, the employer may rely on redundancy. The issue then becomes whether the redundancy was real and whether the selection process was fair.

The employer should be able to explain the business reason. If the company uses probation as a convenient excuse to remove someone while the real reason is restructuring, the documents should still reflect the true reason.

A dismissal should be labelled correctly. Misstating the reason can damage credibility later.

What probationers should do if dismissed

If you are dismissed during probation, get the termination letter and keep a copy. Check the reason given, the effective date, and the final salary calculation.

Preserve the employment contract, offer letter, probation clause, payslips, performance reviews, emails, WhatsApp messages, KPI documents, HR correspondence, warning letters, extension letters, and any evidence showing your actual work performance.

If the employer says the dismissal was due to poor performance, check whether concerns were raised before the termination. If misconduct is alleged, check whether you were given a chance to answer. If the reason is redundancy, look at whether the company gave a proper business explanation.

A probationer who believes the dismissal was without just cause or excuse may file a representation under section 20 of the Industrial Relations Act 1967. The time limit is important. It must generally be filed within 60 days of dismissal.

Do not wait too long. Delay can affect your options.

What employers should do before dismissing a probationer

Employers should treat probation as a structured assessment period.

At the start, the employee should understand the role, reporting line, expected standard, probation period, and assessment criteria. During probation, performance or conduct concerns should be raised early enough for the employee to understand the problem.

Before dismissal, the employer should identify the real reason. Poor performance, misconduct, unsuitability, and redundancy are different grounds. Each should be handled in a way that matches the reason.

For poor performance, keep records of feedback and assessment. For misconduct, investigate and give the employee a chance to respond. For unsuitability, show the connection between the role and the decision. For redundancy, record the business reason.

The termination letter should be accurate. Do not use generic wording if the real reason is specific. If the dismissal is challenged, the employer's evidence will matter more than the label used in the letter.

Frequently Asked Questions

Can you be dismissed during probation for any reason?

No. A probationer can be dismissed during probation, but the employer should still have a proper reason. Common reasons include poor performance, misconduct, genuine unsuitability, redundancy, or another valid basis connected to the employment.

Is a probationer protected from unfair dismissal?

Yes. A probationer may still challenge a dismissal if they believe it was without just cause or excuse. Probation does not remove the need for a fair and properly supported decision.

What should I do if I was dismissed during probation?

Keep your termination letter, employment contract, payslips, performance records, messages, emails, and any documents showing what happened before dismissal. If you believe the dismissal was unfair, seek advice quickly because a section 20 representation generally must be filed within 60 days.

Final takeaway

Probation does not mean no rights. An employer may dismiss a probationer where there is a proper reason, but the dismissal should still be supported by evidence and handled fairly.

For employees, the key is to preserve documents and act quickly if the dismissal appears unfair. For employers, the safer approach is to assess probationers properly, document concerns early, and avoid treating probation as permission to dismiss without reason.

Speak to JPP LAW

Justin, Poh & Partners, also known as JPP LAW, assists clients with civil and commercial disputes, contractual claims, employment-related disputes, settlement negotiations, injunctions, enforcement, and court proceedings in Malaysia. If you are dealing with a probation dismissal, termination dispute, warning letter, or employment-related claim and need to assess your position, you may contact us to discuss the matter.

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Disclaimer: This article is for general information only and does not constitute legal advice. Employment law issues depend heavily on the facts, documents, employment terms, and the reason for dismissal. You should seek advice based on your specific circumstances.