Annual leave during probation

[Accordian]

To all the legal beagles from this forum,

I hope to get some advise in relation to taking annual leave during probation period.

Assuming that there are no stated company policies in relation to taking annual leave during probationary period of an employment, are there laws in relation to employment in Malaysia that will clarify that one can or cannot take annual leave during employment? Or is this issue subject to the employment agreement or letter of appointment between the employee and employer?

Should the same letter or agreement be silent on the matter, is it a standard practice in the market that does not allow annual leaves to be taken during probationary periods?

I do hope someone can kindly advise.

[kwchang]

The best you can hope for is a pro-rated leave system. Let's say you get 12 days off a year - hence if you had only worked one month, you should be entitled to one day off, nothing more. That should be the sensible calculation - you can't take off what you hadn't earned.

[Accordian]

Hi KWChang,

Thanks for the advise but the HR claims that a probationary employee can only take unpaid leave. Only confirmed employees can take annual leaves and they are saying that the pro-rata basis does not take effect until an employee is confirmed which is not consistent with the Employee Hand Book as the Employee Hand Book does not state one cannot take annual leave during probation period but instead states that annual leave can be taken on a pro-rata basis from the 1st day of hire. The HR's justification is that based on a case law (no mention of case law), an employee who is allowed to take annual leave is deemed to be confirmed.

It was also admitted that such rules & regulations are not under the Employee Hand Book or any company policies and procedures other than a memo issued in 2001 in which they don't seem to be able to find it. Thus, they mention that they will re-issue such a memo in due time.

I feel it is unfair to employees when the rules & regulations are not set out in a transparent manner from the onset. I understand the need for the company to protect their interest but surely this should be done in an equitable and transparent manner.

Should one bite the bullet and accept the situation as mentioned above? Or possibly, highlight such actions and recommend constructive approaches, e.g. reviewing the existing policies and updating such policies in a systematic manner?

What would you or anyone else do if put in this situation?