Still on probation. Can you be dismissed without a warning?

A probation clause allows an employer to assess whether a new employee is suitable for the job. It does not remove the employee’s protection against dismissal without just cause or excuse. But must every unsuccessful probationer first receive a written warning or a formal performance improvement plan?

Tan Wu Huei v Smart Touch Technology Sdn Bhd [2026] MELRU 1470

What happened?

The employee joined the company as a Customer Service Representative in August 2022, on a three-month probation and a basic monthly salary of RM3,800. After reviewing his performance, the company discussed a lower position with him. He rejected that proposal, and his employment ended on 4 November 2022.

The company said that he had resigned. The employee maintained that he had been dismissed and that his farewell email was merely a handover after being told not to return to work.

What did the Industrial Court decide?

In its award dated 20 August 2026, the court found that the employee had been dismissed. The company’s own pleading admitted termination. Merely considering resignation did not establish an unequivocal decision to resign.

However, establishing dismissal did not decide whether it was unfair. The court separately examined whether the company had genuinely and fairly assessed his suitability for confirmation.

The evidence showed that colleagues had provided training and assistance. The employee admitted during cross-examination that he could not cope with the assigned work despite training. His admissions about his performance were significant to the court’s assessment.

The absence of a written warning or formal performance improvement plan was not, by itself, fatal to the employer’s case. The court considered the full probation period, the guidance provided, the performance discussion and the company’s consideration of an alternative role. It found that the assessment was genuine and supported by the evidence.

The dismissal was held to be with just cause or excuse, and the employee’s claim was dismissed.

What should employers and employees take note of?

This decision should not be read as permission to dismiss probationers without a fair assessment. The important distinction is between the absence of a particular document and the absence of a genuine opportunity to demonstrate suitability.

For employers, the appointment terms, expected duties, training records and performance discussions should support the actual reason for non-confirmation. A probation clause alone does not prove that the decision was fair. Clear records also avoid a later dispute over whether the employee resigned or was dismissed.

For employees, the relevant questions include what shortcomings were identified, what guidance was given and whether there was a real opportunity to improve. The lack of a warning is relevant, but this award shows why it cannot be treated as an automatic answer to the whole claim.

Read the Industrial Court award on eLaw

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