As enacted

Commentary · As enacted

Must an employer give notice of termination when a probationer is not confirmed?

The text

DISCLAIMER: This update is intended for your general information only. It is not intended to be, nor should it be, regarded as or relied upon as legal advice. Court decisions referred to herein may be subject to further appeal at the time of publication, and subsequent developments in the law, including new legislation, amendments, court decisions or practice directions, may affect the accuracy or relevance of the matters discussed. We are under no duty to update this publication to reflect any such changes in the law. You should consult a qualified legal professional before taking any action or omitting to take action in relation to matters discussed herein.

WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership registered in Singapore under the Limited Liability Partnerships

Act 2005.

Must an Employer Give Notice of Termination When a

Probationer Is Not Confirmed?

The answer, in most cases, is yes. Notice or salary in lieu of notice will be due unless the contract clearly provides that employment ends automatically when the probation period expires.

In Nanyang Law LLC v Ghui Meng Yang [2026] SGHC 171, handed down on 24 August 2026, the General

Division of the High Court (High Court) held that a contract of service which stipulates a period of probation is not automatically a contract of service for a specified period of time (the specified period of time being the length of the probation period) to which section 9(1) of the Employment Act 1968 (EA)

(Section 9(1)) applies. The employee was therefore entitled to one month’s notice, or salary in lieu of notice, when he was told at the end of his probation period that he would not be retained.

An employer that wants employment to end on the expiry of probation without notice must therefore say so in the contract, and say so clearly.

Whether a probation period creates a contract for a specified period of time turns on the language and construction of the contract, read where appropriate against the factual context in which it was entered into.

The question in each case is whether the term has the effect of providing for automatic termination, without notice or payment in lieu of notice, at the end of the probation period. The High Court noted that it was open to an employer to state clearly what would happen if an employee was not to be retained at the end of probation, and that the practical difficulties raised in argument can be avoided by clear drafting.

This appears to be the first occasion on which the Singapore courts have specifically considered whether a contract that includes a probation period is, so far as that probation period is concerned, a contract for a specified period of time to which Section 9(1) applies.

Background

On 30 March 2023, Nanyang Law LLC (Nanyang) engaged Mr Ghui Meng Yang (Probationer) as a

Supporting Officer under a letter of appointment (Letter of Appointment). The Letter of Appointment enclosed “Annexure A: Terms of Employment For Supporting Staff/Paralegal” (Terms of Employment)

and a Form of Acceptance. The Probationer signed the Form of Acceptance on 3 April 2023 and commenced employment on 10 April 2023. All contractual documents were prepared by Nanyang.

The Terms of Employment provided for a probation period of three months, running until 9 July 2023. The probation clause (Probation Clause) stated that, during the probation period, “either party may terminate this contract by giving (1) month prior written notice … to the other party without the need for any reason to be given”.

Probation and Notice

WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership registered in Singapore under the Limited Liability Partnerships

Act 2005.

The Letter of Appointment and the Terms of Employment pointed to the Probationer continuing under the same contract of service if he had been confirmed after his probation period. For instance:

(a)

The Letter of Appointment provided that “[s]alary review shall be conducted annually”; and

(b)

The Terms of Employment further provided for escalating annual leave entitlements based on length of service: one to three years, three to five years, and more than five years.

On 7 July 2023, Nanyang issued the Probationer a letter titled “Expiry of Your Probation Period” stating it had “decided not to continue [the Probationer’s] service beyond” the probation period and that his employment would end on 9 July 2023. Nanyang also offered a goodwill payment of additional salary for seven days, i.e., it would pay the Probationer’s salary until 18 July 2023.

The Probationer filed a claim with the Employment Claims Tribunal (ECT) for one month’s salary (in lieu of notice) of $3,000. The ECT allowed the claim in part, ordering payment of one month’s salary in lieu of notice of $2,857.14 (pro-rated for 20 remaining working days), plus $30 in disbursements.

Nanyang appealed to the High Court on the following question of law (Question):

Whether a contract of employment in which a probation period is stipulated is a contract of service for a specified period of time to which [Section 9(1)] applies, and therefore terminates when the probation period has expired.

Section 9(1) provides that a contract of service for a specified piece of work or for a specified period of time, unless otherwise terminated in accordance with the provisions of the same Part of the EA, terminates when the work specified in the contract is completed or the period of time for which the contract was made has expired. Section 9(2) of the EA provides that a contract of service for an unspecified period of time is deemed to run until terminated by either party in accordance with the provisions of that Part.

Nanyang’s argument was that a stipulated probation period in an employment contract makes it akin to a contract for a specified period, which would terminate upon the lapse of that period pursuant to Section 9(1). The Probationer argued that the defining feature of a fixed-term contract under Section 9(1) is that the termination of the contract automatically occurs upon reaching the pre-determined end date, regardless of the performance of the employee. However, the words used in the Probation Clause did not expressly or impliedly state that the probation period is a fixed term and the reference to annual salary review in the

Letter of Appointment pointed towards permanent employment.

The High Court’s Decision

Dismissing the appeal, the High Court held that the contract of service between Nanyang and the

Probationer was not a contract for a specified period of time, and that the Probationer was therefore entitled to one month’s notice from the date on which notice of termination of his employment was given, or salary in lieu of notice. The ECT’s order for payment in lieu of notice of $2,857.14, pro-rated to the 20

remaining working days, together with $30 in disbursements, was left to stand.

WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership registered in Singapore under the Limited Liability Partnerships

Act 2005.

Probation may be structured within a single contract or as a separate fixed-term contract

The EA does not state what amounts to a contract of service for a specified period of time, and there is little local authority on the issue.

The expression “probation period” is not defined in the legislation and has not been specifically considered in local case law. The High Court noted that it is generally understood to refer to an initial period during which the employer and employee mutually assess whether the employment is acceptable to both, and during which a shorter notice period or modifications to the terms and conditions of employment may apply.

Depending on the contractual language, a probation period can be effected through the creation of a separate, fixed-term contract, just as a fixed-term contract may itself have a probation period.

Three competing interpretations of Section 9(1)

The High Court identified three possible interpretations of Section 9(1):

(a)

All contracts with a specified probationary period are contracts for a specified period of time and therefore subject to Section 9(1);

(b)

Contracts referring to probationary periods are not fixed-term contracts, and therefore are not subject to Section 9(1); and

(c)

Contracts of service with probation periods may be contracts for a specified period of time depending on their language and construction.

The High Court held that the third interpretation is the one most supported by the legislative purpose behind Section 9(1).

The High Court agreed with the ECT that the statement in Ravi Chandran, Employment Law in Singapore

(LexisNexis, 6th Ed, 2019), that an employer likely need not give notice or salary in lieu of notice where a contract provides for a specific period of probation and the employee is not confirmed at the end of it, may not comprehensively represent the position in Singapore law. It also noted the contrary view in Astra Emir,

Selwyn’s Law of Employment (Oxford University Press, 19th Ed, 2016), that a probationary period of a certain length whose successful completion results in confirmation is not a fixed-term contract, and that the employee may be given lawful notice before the probationary period expires. The High Court declined to adopt either absolute position.

Parliament intended to preserve the freedom to choose between fixed-term and permanent contracts

The High Court took the view that the drafters of Section 9(1) may not have specifically considered probation periods. Parliament, in formulating the EA, sought to maximise the freedom of employers and employees to contract and to prevent labour rigidities. The language of Section 9(1) was also consistent with such intention, so that employers and employees may freely choose between fixed-term and permanent contracts without either side being unduly prejudiced by the legislation.

WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership registered in Singapore under the Limited Liability Partnerships

Act 2005.

In addition, there is no statutory restriction on the use of fixed-term contracts, and guidance has been provided in advisories issued by the tripartite partners (i.e., the Ministry of Manpower representing the

Government, the National Trades Union Congress representing the employees, and the Singapore

National Employers Federation representing the employers) to encourage good practices concerning fixed-term contracts. In certain parliamentary debates, the Government expressly reserved its position in relation to the regulation of the use of probation periods for contract workers as opposed to permanent workers.

Parliament therefore clearly contemplated that fixed-term contracts could also contain probation periods, and intended to preserve contractual flexibility, including in the choice between fixed-term and permanent contracts of service under section 9 of the EA.

The High Court concluded that nothing in the statutory language or the Parliamentary debates suggests that providing for a fixed period of probation necessarily entails a contract for a specified period of time (the specified period of time being the length of the probation period).

Stipulated probation period does not automatically create a fixed-term contract

The High Court held that a contract of service which stipulates a probation period is not automatically a contract of service for a specified period of time to which Section 9(1) applies. The contractual term must be considered, together where appropriate with the factual context in which it was entered into, to determine whether it provides for automatic termination without notice or payment in lieu of notice at the end of the probation period where the probationer has been told that he or she will not be confirmed or retained.

Contractual terms pointed to a single continuing contract

Applying those principles, the High Court found that the more natural reading of the documents was that all the terms formed part of the same contract of service, under which different conditions and entitlements applied to the Probationer during the probation period.

Reading the documents as creating a contract for a specified period of time, that is, a contract for probation, was inconsistent with other provisions such as those for annual salary reviews and escalating annual leave entitlements based on length of service. Those provisions would serve no purpose if the contract were only for three months.

The High Court took the view that the reference to a probationary period did no more than introduce a break clause in a contract of uncertain duration, and did not make it a contract for a specified period.

Nanyang’s distinction between a notice period for probationary employees and a notice period for terminating the employment contract at the end of probation was too artificial, and the argument cut both ways. Nanyang’s reading would also deprive the Probation Clause of much of its purpose, since the

Probationer’s right to one month’s notice would have diminished in practical value each day after the second month of his appointment.

WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership registered in Singapore under the Limited Liability Partnerships

Act 2005.

Clear drafting can secure the position at the end of probation

The High Court accepted that it may be commercially pointless for an employee already assessed during probation as unsuitable to work through the notice period, but held that these perceived problems can be avoided by clear drafting.

Nanyang could have stated clearly whether no notice, very short notice, or payment in lieu of notice would be given if an employee was not retained after the probation period expired, subject to sections 10(3) to (5)

of the EA.

Key Takeaways

This decision makes it clear that the mere inclusion of a probation period in an employment contract does not, without more, convert it into a fixed-term contract under Section 9(1) that automatically expires at the end of the probation.

Employers relying on probation periods to manage new hires should consider if their relevant contractual provisions clearly articulate the notice (or payment in lieu of notice) obligations that apply if the employer decides not to confirm the employee. Where an employer intends for the employment to automatically terminate at the end of the probation period without notice, or where any other scenario(s) is/are contemplated, the relevant contractual provisions should be drafted or amended to expressly provide for such scenario(s) (though subject to applicable law). Unless expressly and clearly provided for, the provision of notice or salary in lieu of notice is required if an employer decides to terminate the employment of a probationary employee.

If you would like information and/or assistance on the above or any other area of law, you may wish to contact the Partner at WongPartnership whom you normally work with or any of the following Partners:

Jenny TSIN

Co-Head – Employment

Partner – Commercial & Corporate Disputes

Vivien YUI

Co-Head – Employment

Partner – Mergers & Acquisitions

CHANG Qi-Yang

Partner – Employment and

Commercial & Corporate Disputes

LIM Jia Ying

Partner – Employment and

Mergers & Acquisitions

HO Wei Jie

Partner – Employment and

Commercial & Corporate Disputes

ONG Pei Chin

Partner – Commercial & Corporate

Disputes

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