The Probation Puzzle: What Employers Can Learn from Syed A Faris Aljunid vs. MBSB Bank Berhad?

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Recently, our Senior Associate, Muhamad Sharulnizam Mohd Roni, successfully represented MBSB Bank Berhad in Syed A Faris Aljunid v MBSB Bank Berhad (Award No: 451 of 2025). This case not only reaffirmed the Bank's right to exercise managerial prerogative during probation but also underscored the importance of clear performance expectations and structured assessments for senior-level probationers.

Brief Facts

The claimant, Syed A Faris Aljunid, was employed as a Senior Manager at MBSB Bank Berhad. He was terminated at the end of his probation period on the ground of poor performance, which warranted his non-confirmation. The claimant argued that the Bank did not provide sufficient feedback or support during his probation and that the performance appraisal was conducted hastily just days before the probation ended. He contended that the Bank’s decision was unfair and lacked proper assessment or corrective action.

The Bank argued that the claimant’s performance did not meet expectations despite adequate guidance and multiple projects assigned to him. The Bank maintained that it was within its managerial prerogative not to confirm a probationer if performance criteria were not met, as clearly stated in the employment contract.

The Industrial Court agreed with the Bank and found that the claimant was aware of his impending non-confirmation due to his poor performance and held that the non-confirmation was done with just cause and excuse, highlighting that the Bank had provided adequate opportunities for the claimant to perform and that managerial discretion was properly exercised.

The Law

The landmark case of Khaliah Binti Abbas v Pesaka Capital Corp Sdn Bhd (1997) 3 CLJ 827, held that;

“...an employee on probation has the same right as a permanent and confirmed employee and the services of a probationer cannot be terminated without just cause or excuse. The requirement of bona fide is essential in the dismissal of an employee on probation but if the dismissal or termination is found to be a coloured exercise of the power to dismiss or as a result of discrimination or unfair labour practice, the Industrial Court has the jurisdiction to interfere and set aside sauch dismissal.”

Further, the court conceded with the Bank’s submission as per Hartalega Sdn Bhd v Shamsul Hisham (2004) 3 CLJ 257, that it is trite that for individuals in management positions the need for supervision is generally less apparent or expected.

Commentary

This case is a critical reminder of the importance of clearly articulated probation terms and structured performance management. It underscores that while employers have the right to terminate an employee during probation, this must be done transparently and with proper documentation. For human resource practitioners, this is a benchmark for setting clear expectations, maintaining communication and exercising managerial rights appropriately during the probation period.

Key Takeaways for Employers and HR Practitioners

1.     Clear Probation Terms Are Essential

Employers should ensure that the terms of probation including expectations, evaluation methods and the possibility of non-confirmation, are clearly outlined in the employment contract. In this case, the Bank's reliance on the probation clause and performance appraisals was critical in justifying its decision.

2.     Regular Performance Appraisals and Documentation

While the Bank’s appraisal came towards the end of the probation, the Industrial Court accepted its validity because the assessment process was documented and there was evidence of guidance provided. Employers should conduct regular performance checks and keep proper records of communications and appraisals.

3.     Managerial Prerogative in Probation

The court reaffirmed that it is the employer's prerogative to confirm or terminate a probationary employee based on performance, as long as the decision is made in good faith and without discrimination. The Bank's decision was deemed fair since it was supported by evidence of unsatisfactory performance.

4.     No Right to Confirmation During Probation

Probationers do not have an automatic right to confirmation. As highlighted in the Award, probation is a testing period and non-confirmation does not require proof of misconduct but only evidence of unsatisfactory performance.

5.     Managing Employee Expectations

The claimant argued that tasks assigned were outside his scope and excessively burdensome but the court ruled that he did not object during his tenure. Human resource team should ensure that the probationers are aware of their job scope and address any concerns raised promptly.

3 June 2025