Probation is not fixed-term: What business owners and HR practitioners must know after Nanyang Law LLC v. Ghui Meng Yang [2026] SGHC 171

Introduction

Employers who engage staff under contracts containing a probation period may assume that, once probation ends and an employee is not confirmed, the contract simply expires with no notice required. A recent Singapore High Court decision, Nanyang Law LLC v. Ghui Meng Yang [2026] SGHC 171, confirms this is not always the case and getting it wrong can expose employers to a claim for salary in lieu of notice.

Facts

Nanyang Law LLC hired Mr. Ghui Meng Yang as a supporting officer on a three-month probation (10 April 2023 to 9 July 2023). The employment contract contained a probation clause allowing either party to terminate during probation on one month’s written notice, but it was silent on what would happen if the employee was neither confirmed nor terminated by the end of probation.

Two days before probation expired, Nanyang informed Mr. Ghui that his service would not continue and offered a goodwill payment of seven extra days’ salary, but did not give the contractual one month’s notice or pay salary in lieu. Nanyang’s position was that the probation period was a fixed-term arrangement that expired on its own, so no notice was required. Mr. Ghui disagreed and claimed salary in lieu of notice at the Employment Claims Tribunal (ECT), which found in his favour.

Legal principles

Nanyang filed an appeal to court. The question on appeal was whether a probation period automatically makes the contract a “contract of service for a specified period of time” under section 9(1) of the Employment Act 1968, such that it ends automatically when probation ends. The court held that it does not: the answer depends on the contract’s actual wording. The appeal was dismissed, and Mr. Ghui’s claim prevailed.

Here, the contract’s annual salary review, escalating leave entitlements, and post-confirmation conditions all pointed to a single, continuing relationship rather than a fixed term. Nanyang was therefore required to give one month’s notice, and the court upheld the award of S$2,857.14 in pro-rated salary in lieu.

Practical takeaways for HR

• Start the review early. Employers should begin formal performance assessments four to six weeks before probation expires, rather than leaving the decision to the last minute.
• Include the right to extend the probation period. The probation clause should give employers the option (not the obligation) to extend probation, allowing more time to assess performance where a confirmation decision cannot yet be made.
• Document performance from day one. Employers should keep file notes of meetings, email summaries of feedback, and records of any warnings from the outset. Good documentation protects employers if a dispute later arises over the reason for non-confirmation.
• Always give contractual notice. Employers must comply with the contract’s notice provisions or face a claim. Notifying an employee on the second-to-last day of probation that their employment will not continue is too late if the contract requires a longer notice period.
• Put every decision in writing. Whether confirming, extending, or ending probation, the employer’s letter or email should clearly state the outcome – including the notice period or salary in lieu if terminating.
• Do not confuse non-confirmation with automatic expiry. Telling an employee that their probation has expired is not the same as properly terminating employment. Employers must still follow the termination process, including giving notice.
• Do not rely on goodwill payments as substitutes for notice. In Nanyang, the employer’s offer of seven extra days’ salary fell well short of the one-month contractual notice period. A goodwill payment has no legal standing as a substitute for notice.

Practical guidance: Drafting the probation clause

The Nanyang decision makes it clear that “all these perceived problems can be obviated by clear drafting.” In other words, if the contract clearly provides for the intended outcome at the end of probation, the ECT and the Singapore courts will ordinarily uphold it. As the High Court [WW2.1][RSRL2.2]noted, “contracts of service with probation periods may be contracts for a specified period of time depending on their language and construction”.

Below is guidance for two common scenarios.

Scenario A: Automatic termination at end of probation
Under this model, the contract terminates automatically at the end of probation unless the employer confirms the employee in writing beforehand. No notice is needed if the employee is not confirmed, because the contract simply expires.

Illustrative clause language:
“The Employee shall serve a probation period of [three (3)] months commencing on the Start Date (‘Probation Period’). This contract of employment is for a specified period of time, being the duration of the Probation Period, and shall terminate automatically upon the expiry of the Probation Period unless the Company, before such expiry, confirms the Employee’s appointment in writing. If the Employee is so confirmed, the employment shall continue on a permanent basis subject to the remaining terms of this contract. For the avoidance of doubt, if the Employee is not confirmed in writing before the expiry of the Probation Period, the employment shall come to an end on the last day of the Probation Period without the need for notice by either party.”

Key features: This clause characterises the probation period as a contract for a specified period of time under section 9(1) of the Employment Act, making automatic termination the default.

Key risk: If other parts of the contract, such as annual salary reviews or escalating leave entitlements, suggest a longer-term relationship, a court may find (as in Nanyang) that the arrangement is not truly fixed-term. The contract should be internally consistent, with any provisions for permanent employment expressly stated to take effect only upon confirmation.

Scenario B: Continuation unless formally terminated
Under this model, the contract continues beyond probation and remains in force unless formally terminated under the contract’s termination clause, which invariably requires notice. This is the more common arrangement, and the one that most closely resembles Nanyang’s contract.

Illustrative clause language:
“The Employee shall serve a probation period of [three (3)] months commencing on the Start Date (‘Probation Period’). During the Probation Period, the Employee’s performance shall be reviewed and assessed. At or before the end of the Probation Period, the Company shall notify the Employee in writing whether the Employee is confirmed, whether the Probation Period is extended, or whether the Employee’s employment is to be terminated. During the Probation Period, either party may terminate this contract by giving [one (1) month’s / two (2) weeks’] prior written notice to the other party, or salary in lieu of such notice. For the avoidance of doubt, if no written notice of confirmation, extension, or termination is given before the expiry of the Probation Period, the Employee shall continue in employment as an unconfirmed probationer on the same terms, and the termination provisions of this contract shall continue to apply.”

Key features: This clause treats probation as a phase within a single, ongoing contract. It requires the employer to take positive action – confirm, extend, or terminate – and provides a clear fallback (continued employment as an unconfirmed probationer) if the employer fails to act.

It also allows for a shorter notice period during probation (as little as one or two weeks) than after confirmation – a useful “escape” for employers.

Key risk: If the clause does not specify a notice period for probationary termination, the post-confirmation notice period (or the Employment Act default) will apply – potentially a longer and costlier obligation than intended. Silence on what happens at the end of probation also creates confusion, so the probation-phase notice period should be stated explicitly, all three possible outcomes spelled out, and a clear default set for inaction.

Conclusion

The Nanyang decision is a straightforward but important reminder: a probation period does not give employers a free pass to end employment without notice. Whether notice is required depends entirely on what the employment contract says.

For business owners and HR practitioners, the message is simple: review probation clauses now, ensure they reflect the employer’s actual intention, and put them into contracts going forward. A small investment in clear drafting today can save a costly surprise tomorrow.

Disclaimer: This alert is for general informational purposes only and does not constitute legal advice. Please consult qualified legal counsel for advice on specific situations.

Client Alert 2026-189