This article is for educational purposes only and does not constitute legal advice. For any of the situations below, consult a qualified Malaysian employment lawyer before taking action.
You are still protected by Malaysian law. Here is exactly what your employer can do, what they cannot do, and what to do if they cross the line.
Most fresh grads start their first job with a vague understanding of what probation actually means. They know it exists. They know they are supposed to “prove themselves.”
What they usually do not know is that probation is a defined legal concept in Malaysia, that it comes with specific rights they are entitled to from day one, and that there are things an employer legally cannot do to them during this period regardless of what any offer letter says.
Here is the full breakdown, sourced from the Employment Act 1955 and Industrial Relations Act 1967.
What probation actually is (and is not)
There is no statutory definition of “probationer” or “probation” in either the Employment Act 1955 or the Industrial Relations Act 1967.
In plain terms, probation means you are a new employee on trial for a specific period to prove your fitness for the role in terms of performance, conduct, and character.
That is the entire legal construct. There is no law specifying how long probation must be, what it must contain, or what special powers it gives your employer. Common practice in Malaysia sets probation at 3 to 6 months, though some contracts extend it to 12 months.
The most important thing to understand about probation in Malaysia
A probationer is NOT a temporary employee. You are not on a fixed-term contract. You are not an intern. Malaysian case law has consistently held that a probationer enjoys the same rights as a confirmed employee under the Employment Act 1955. Your employer cannot treat you as if labour law does not apply to you simply because you are still on probation. Any contract clause that attempts to strip away your statutory rights is void and unenforceable.
Your rights during probation: What the law guarantees
1. EPF, SOCSO, and EIS contributions from day one
Your employer is legally required to make EPF, SOCSO, and EIS contributions starting from your first month of employment, regardless of whether you are on probation. There is no waiting period. Any employer who withholds these contributions during probation is breaking the law.
2. Annual leave entitlement
Under the Employment Act 1955, employees on probation are entitled to annual leave on a pro-rated basis from the date they start work. The statutory minimum is 8 days per year for less than 2 years of service. Some employers say probationers cannot take leave. They are wrong.
3. Sick leave entitlement
Probationers are entitled to paid sick leave under the Employment Act. The statutory minimum is 14 days per year for less than 2 years of service (without hospitalisation). If hospitalisation is required, this increases to 60 days per year. You cannot be penalised for taking certified sick leave.
4. Public holidays
You are entitled to all gazetted public holidays during your probation period. The Employment Act 1955 mandates a minimum of 11 paid public holidays per year. If you are required to work on a public holiday, you must be paid at 3 times your daily rate.
5. Overtime pay (if applicable under EA)
If your salary is RM4,000 or below per month and you are covered by the Employment Act 1955, you are entitled to overtime pay at 1.5 times your hourly rate for work exceeding 8 hours per day or 45 hours per week. Being on probation does not affect this entitlement.
6. Protection against unfair dismissal
This is the most misunderstood right. Malaysian case law is clear: a probationer cannot be terminated without just cause and excuse. The employer must have a valid reason such as poor performance, misconduct, or unsuitability for the role. If you are dismissed without valid grounds, you can file a claim for reinstatement under the Industrial Relations Act 1967, and back wages of up to 12 months may be awarded.
What your employer can do during probation
| What your employer CAN do | Under what conditions |
|---|---|
| Terminate your employment | With valid reason (poor performance, misconduct, unsuitability). Must give notice or pay in lieu. Cannot be arbitrary. |
| Extend your probation period | If your performance is below expectations, they can extend probation with written notice before the original period ends. Extensions are not automatically unlimited. |
| Set KPIs and performance targets | Performance must be measurable and communicated clearly from day one. Vague or shifting goalposts used to justify termination may not hold up at the Industrial Court. |
| Issue warnings for poor performance or misconduct | Written warnings are standard. A paper trail of performance feedback strengthens the employer’s position if termination follows. |
| Withhold confirmation letter past the probation end date | There is no automatic confirmation in Malaysia. Even if your probation period has lapsed, you remain a probationer until you receive a written confirmation letter. However, the court may recognise implied confirmation if the employer’s conduct treats you as a confirmed employee (e.g. salary increments, acting on a role title change). |
What your employer cannot do during probation
Cannot withhold EPF, SOCSO, or EIS contributions
This is a statutory obligation from your first day of employment. There is no probation exemption. Failure to contribute is a criminal offence under the EPF Act 1991, SOCSO Act 1969, and Employment Insurance System Act 2017.
Cannot terminate you without just cause and excuse
Despite what some employers believe, you cannot be dismissed arbitrarily during probation simply because it is “easier” to let you go before confirmation. The Industrial Court has consistently held that probationers are protected from unfair dismissal. A dismissal without valid grounds can be challenged.
Cannot deny you statutory leave entitlements
Annual leave, sick leave, and public holidays are statutory rights under the Employment Act 1955. They apply from day one of employment. An employer cannot contractually exclude these during probation.
Cannot make you work more than 45 hours per week without overtime pay (if covered by EA)
For employees earning RM4,000 or below and covered under the Employment Act, the 45-hour work week limit and overtime entitlements apply regardless of probation status. “We are a startup” is not a legal exemption.
Cannot terminate you without proper notice or payment in lieu
If your contract specifies a notice period for termination during probation (commonly 24 hours to 2 weeks), the employer must honour it or pay you the equivalent salary in lieu of notice. If the contract is silent, the Employment Act Section 12 notice periods apply based on length of service.
Cannot terminate a pregnant employee without specific valid grounds
Since the Employment Act 2022 amendment, terminating an employee on the grounds of pregnancy or childbirth is expressly prohibited. This protection covers probationers. Terminating a pregnant employee is only lawful if there are valid grounds such as proven misconduct, or if the company is ceasing operations entirely.
The confirmation letter: Why it matters
There is no automatic confirmation in Malaysia.
Even if your 3-month or 6-month probation period has technically ended, you remain a probationer in the eyes of the law until your employer issues you a written confirmation letter.
Many Malaysians continue working past their probation end date without a confirmation letter and assume they are now confirmed employees.
They are not, legally speaking, unless their employer’s conduct implies confirmation (such as giving a salary increment tied to confirmation, or addressing you by a new job title).
If your probation end date has passed and you have received no confirmation letter and no formal extension notice, write to your HR department asking for clarification in writing.
The response, or lack of one, creates a paper trail that matters if a dispute arises later.
What happens if your probation is extended
An employer can extend your probation period if your performance is below expectations, but the extension must be communicated to you in writing before your original probation end date. There is no legal limit on how many times probation can be extended, but the Industrial Court has found that repeatedly extending probation without valid grounds, or using it as a substitute for confirmed employment, may be treated as constructive dismissal in some cases. If your probation has been extended more than once with no clear performance feedback, document everything and seek advice.
If you think you were unfairly dismissed during probation
You have 60 days from the date of dismissal to file a representation for unfair dismissal under Section 20 of the Industrial Relations Act 1967.
This is submitted to the Director General of Industrial Relations at the Industrial Relations Department (JKPP). The process is free.
You do not need a lawyer to file the initial representation, though legal advice helps.
| If you believe your dismissal was unfair | What to do |
|---|---|
| Within 60 days of dismissal | File a representation for unfair dismissal at your nearest Industrial Relations Department (JKPP) office. Free to file. |
| Wage or benefit disputes | File a complaint with the Department of Labour Peninsular Malaysia (JTKSM). Hotline: 1800-88-8228. Free. |
| EPF or SOCSO non-contribution | Report to EPF (kwsp.gov.my) or SOCSO (perkeso.gov.my) directly. Both have online complaint portals. |
| Legal advice (low income) | Legal Aid Bureau (Biro Bantuan Guaman) at 03-2070 3207. Means-tested, free for those who qualify. |
Probation is not a free pass for your employer to make up rules. Your rights apply from day one — EPF, annual leave, sick leave, public holidays, and protection against unfair dismissal.
The law covers you the entire time. Any employer who tells you otherwise is either wrong or hoping you do not know better. Well, good thing for you, now you do.
