Employment & Labour

One of the most contested questions in Malaysian employment law is whether a fixed-term contract is genuine or merely permanent employment dressed up in temporary clothing. The distinction is decisive: if the contract is genuinely fixed-term, its expiry by effluxion of time is not a dismissal at all, and the question of just cause or

Honesty at the hiring stage is not a courtesy — it is a condition of the employment relationship itself. In a 2026 award, the Industrial Court of Malaysia confirmed that an employee who deliberately conceals material information to secure a job can be lawfully dismissed once that concealment comes to light, even where the person

A Performance Improvement Plan, commonly known as a PIP, is one of the most commonly used but most wrongly prepared HR documents in Malaysia. Many employers think that once an employee is placed under a PIP, the company is already legally protected if the employee is later terminated. This is a dangerous misunderstanding. A PIP

We successfully represented a senior expatriate General Manager in the Industrial Court where dismissal based on work permit expiry and refusal to relocate was held to be without just cause or excuse.

We successfully acted for the employer in defending a constructive dismissal claim before the Industrial Court, where the employee alleged that non-payment of commissions, unilateral transfer, and warning letters amounted to a fundamental breach of the employment contract.
The Industrial Court dismissed the claim in its entirety, holding that the employee failed to establish any repudiatory breach going to the root of the contract. This decision reaffirms the strict application of the “contract test” in constructive dismissal cases under Malaysian law.

In a recent Industrial Court decision delivered in February 2026, the Court examined whether a dismissal premised on redundancy following a corporate restructuring exercise was carried out with just cause or excuse. The case provides important guidance on the evidential burden imposed on employers and the legal framework governing redundancy-based terminations under Malaysian industrial law.

NZSK Legal, led by Lawyer Khoo Ai Theng, successfully represented New Me Marketing Sdn Bhd in defending a commission claim filed by a former employee at the Jabatan Tenaga Kerja (JTK). The employee alleged that the Company owed outstanding commissions and sought relief under the Employment Act 1955.

NZSK Legal successfully represented Corporate Partners Consultancy Sdn Bhd in an Industrial Court claim brought by former employee Tan Pei Kei, who alleged that her dismissal was without just cause or excuse. The case centred on a fundamental legal principle in employment law: that persistent insubordination—defined as deliberate refusal to obey lawful and reasonable instructions—constitutes just cause and excuse for dismissal. Throughout the proceedings, the Company demonstrated that the Claimant repeatedly ignored compulsory meetings, failed to respond to written instructions, and refused to comply with reporting obligations necessary for performance monitoring. Evidence before the Court showed that despite the Company issuing multiple reminders, a warning letter, and a show cause letter dated 14 April 2023, the Claimant persistently disregarded instructions from both her Human Resource Manager and her direct superior. She refused to attend performance meetings scheduled on 30 March and 3 April 2023, ignored WhatsApp reminders, and failed to submit required Monthly Sales Activity Reports and daily activity logs. Her conduct, as found by the Court, reflected a clear pattern of disrespect, wilful disobedience, and non-cooperation.

In delivering its Award, the Industrial Court reaffirmed the long-standing principle that employers possess the managerial prerogative to direct, supervise, and require accountability from employees, and employees are legally obliged to comply with such directions. The Court emphasised that wilful refusal to follow lawful instructions strikes at the heart of the employment relationship, referencing authorities that describe insubordination as one of the most “noxious” forms of misconduct because it undermines organisational authority. After considering the totality of the evidence, the Court concluded that the Company had proven the Claimant’s insubordination on a balance of probabilities and that the Claimant’s behaviour constituted serious misconduct. Accordingly, the Court held that the dismissal was grounded on just cause and excuse and dismissed the Claimant’s claim entirely.

This decision underscores an important legal principle in Malaysian employment law: when an employee persistently disregards reasonable instructions, refuses to engage in performance discussions, and undermines the employer’s authority, the employer is legally entitled to terminate the employment. The ruling reflects NZSK Legal’s continued success in defending employers in complex industrial relations disputes involving misconduct, performance issues, and procedural fairness.

NZSK Successfully Defends Bina Puri in Constructive Dismissal Judicial Review 中文 한국어 日本語 NZSK Successfully Defends Bina Puri in Constructive Dismissal Judicial Review Ng, Zainurul, Seke & Khoo (NZSK) has secured a significant victory at the Kuala Lumpur High Court in Hasnah Hashim v. Bina Puri Sdn Bhd & Anor [2025] 5 MLRH 403, where

The Probation Period — More Than Just a Trial
For many employees, the probation period feels like a test. You work hard, try to prove yourself, and hope to be confirmed as a permanent staff member. Employers often treat probation as a safety net — a time to see if the new hire is suitable.
But in Malaysia, probation is not a free pass for employers to treat employees as “lesser” workers. The law recognises probationers as employees with rights, and any dismissal during probation must still meet legal standards. Understanding your rights during probation can make the difference between being treated fairly and being taken advantage of.

Probationers Are Employees Too
A common misconception is that probationers have no rights until they are confirmed. This is not true. The courts in Malaysia have repeatedly held that probationers are employees from day one, entitled to statutory protections and natural justice.
This means that your employer cannot dismiss you arbitrarily just because you are “on probation.” Even during probation, termination must be based on just cause and excuse.

What “Just Cause and Excuse” Means
In practical terms, “just cause and excuse” means there must be valid reasons, supported by evidence, for dismissing you. For probationers, the most common reason is poor performance. But even then, employers must follow certain steps:
They must set clear expectations and communicate them.
They must monitor your performance and give feedback.
They must give you a reasonable chance to improve.
If you are dismissed without warnings, without feedback, or without the chance to defend yourself, you may have grounds to claim wrongful dismissal.

Rights During the Probation Period
Right to Wages and Benefits
Probationers are entitled to the same statutory rights as other employees — including wages, overtime (if applicable), leave entitlements under the Employment Act, and protection against unlawful deductions.
Right to Fair Evaluation
Employers cannot move the goalposts mid-way. If your job scope or targets are changed drastically without proper communication, you may challenge the fairness of the evaluation.
Right to Natural Justice
If your employer alleges misconduct, you must be given notice of the charges and an opportunity to be heard, often through a show cause letter or domestic inquiry.
Right to Protection from Arbitrary Termination
Probation does not mean the employer can dismiss you at will. Any dismissal must be supported by just cause and excuse, and if challenged, the Industrial Court will scrutinise the employer’s actions.

Confirmation Is Not Automatic
Another common misunderstanding is that confirmation is automatic once the probation period ends. Unless the contract expressly states otherwise, confirmation is usually at the discretion of the employer. Employers may extend probation if they believe more time is needed to evaluate performance.
However, even if your probation is extended, the employer must act reasonably and not abuse the process by keeping you in “permanent probation.” Unreasonable extensions can be challenged.

What to Do If You Are Dismissed During Probation
If you are dismissed during probation, ask yourself:
Was I given clear performance expectations?
Did I receive feedback and the chance to improve?
Was I informed of the alleged misconduct and given a chance to explain?
If the answer to these questions is “no,” you may have grounds to file a claim for unfair dismissal under Section 20 of the Industrial Relations Act. Remember, you must file the claim within 60 days of dismissal.

Practical Advice for Employees
Take probation seriously — it is your chance to prove yourself.
Keep records of instructions, feedback, and communications.
If you feel targeted unfairly, raise concerns respectfully and in writing.
If you are dismissed, seek advice quickly — timing is critical.

Practical Advice for Employers
Treat probationers fairly and transparently.
Document feedback, reviews, and warnings.
Avoid arbitrary extensions of probation.
Remember that fairness and process are key to defending against claims.

Final Thoughts
Probation is a period of evaluation, but it does not strip employees of their rights. From the very first day of work, probationers are entitled to legal protections. Employers must treat them fairly, and employees must be aware of their rights.
In my practice as an employment lawyer, I have seen too many cases where probationers were dismissed without process, only for employers to face costly claims later. The message is simple: probation is not a legal loophole — it is part of the employment relationship, governed by the same principles of fairness, justice, and respect.

✍️ Written by Lawyer Khoo, Partner at Ng, Zainurul, Seke & Khoo