Probationary Employment

Who is a probationary employee?

A probationary employee is one who, for a given period of time, is being observed and evaluated to determine whether or not he is qualified for permanent employment. A probationary appointment affords the employer an opportunity to observe the skill, competence and attitude of a probationer. The word probationary, as used to describe the period of employment, implies the purpose of the term or period. While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer at the same time, seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. (Escorpizo vs. University of Baguio Faculty Education Workers Union, G.R. No. 121962 [1999])

What is the governing law?

Probationary employment is governed by Article 281 of the Labor Code, which reads:

ART. 281. Probationary Employment. – Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

What are the grounds for terminating a probationary employee?

Article 281 states that a probationary employee can be legally terminated: (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of the employment. The limitations in dismissing a probationary employee are:

First, this power must be exercised in accordance with the specific requirements of the contract.

Second, the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law;

Third, there must be no unlawful discrimination in the dismissal.

New Case

In the recent case of Dusit Hotel Nikko vs. Gatbonton (G.R. No. 161654, 5 May 2006), the Supreme Court found that the employer failed to present proof that the employee was evaluated or that his probationary employment was validly extended.

In this case, the employee was hired for a 3-month probationary period (the period provided by law is six months, but this may be shortened or, in appropriate cases, extended by agreement between the employer and the employee). For its defense, the employer claimed that the 3-month probationary employment was extended for another 2 months because the employee was not yet ready for regular employment. The employer presented, as proof, a Personnel Action Form containing the recommendation.

However, the Supreme Court noted that the Personnel Action Form: (1) was prepared on only in the fourth month, well after the 3-month period provided under the contract of employment; (2) the recommended action was actually termination of probationary employment, and not extension of probation period; (3) the action form did not contain the results of the respondent’s evaluation; (4) the action form spoke of an attached memo that allegedly contains the recommendation for extension, but the memo was not presented; (5) the action form did not bear the respondent’s signature.

Therefore, in the absence of any evaluation or valid extension, there is no basis to show if the employee indeed failed to meet the standards of performance previously set.

Effect of validly terminating a probationary employment

At the expiration of the probationary period, the status of the employee becomes regular. Since the employee in the Dusit Hotel Nikko case was not dismissed for a just or authorized cause, his dismissal was illegal, and he is entitled to reinstatement without loss of seniority rights, and other privileges as well as to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

May a probationary employment be extended?

In Mariwasa Manufacturing, Inc. vs. Leogardo (G.R. No 74246, 26 January 1989), the Supreme Court stated that the extension of the probationary period was ex gratia, an act of liberality on the part of the employer affording the employee a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot unjustly be turned against said employer’s account to compel it to keep on its payroll one who could not perform according to its work standards. By voluntarily agreeing to an extension of the probationary period, the employee in effect waived any benefit attaching to the completion of said period if he still failed to make the grade during the period of extension.

52 thoughts on “Probationary Employment

  1. will

    management staff

    question? an employee was hired as team leader in a call center and he/she signed a job offer stated as probationary for 3 months, and in a snap of finger without any evaluation and not given period of time, to proven themselves that they are fit and meet the company standard was fired because of impression as per employer. Is that valid to terminate his/her employment? what steps do we need to do first?
    —————————–
    agent staff

    And one more thing with about their agents was detained for 45 mins because they cannot go until they signed the training agreement which is supposed to be given on the job offer itself and that will bind the contract and the job offer. the employee already done with their training they are already dialing on the floor and if they made mistake on the spot they are fired and scorted to hr for clearance.

    Reply
  2. will

    management staff

    question? an employee was hired as team leader in a call center and he/she signed a job offer stated as probationary for 3 months, and in a snap of finger without any evaluation and not given period of time, to proven themselves that they are fit and meet the company standard was fired because of impression as per employer. Is that valid to terminate his/her employment? what steps do we need to do first?
    —————————–
    agent staff

    And one more thing with about their agents was detained for 45 mins because they cannot go until they signed the training agreement which is supposed to be given on the job offer itself and that will bind the contract and the job offer. the employee already done with their training they are already dialing on the floor and if they made mistake on the spot they are fired and scorted to hr for clearance.

    Reply
  3. valski

    hi sir, my son just went through a 6 months probationary period and recently been regularized. accordingly, the seniority of employment is reckoned from the very first day of his probationary period. during his regular status, his salary was increase from 265 to 270 with 5.00 difference. is he entitled to a differential back wages 6 months prior to his regularization since his employment is reckoned from day one of his probationary.

    please advice. thanks and much appreciated

    Reply
  4. Peaches

    Hi Atty.

    I am nearing the end of my 6 months probationary period. However, I do not wish to renew my contract with them (even if they offer regularization). Do I need to write a formal notification on my 5th month? I am worried that if I don’t notify them they would tell me to serve another 30-days for turn-over.. I am willing to finish my contract with them but do not wish to extend.

    Also, since I just worked for them for 6-months, will I be able to get the taxes which they witheld along with my final pay?

    Thanks!

    Reply
  5. asher_chelle85

    Would you mind to enlighten me on this one.

    There was employee given 3 mos probationary period. He was not given any notices that his probi will end soon, but he was still working in the company. May i ask if that employee will be considered as a regular employee?

    If the company will still make another extension of his probationary even if it was a few days late will it be legally valid?

    Is there any way on how to make the employee continue working as a probationary at least for another 3 mos? thanks

    Reply
  6. Anne

    I have signed a probationary contract for 5 months. I am already on my 7th month of employment and no evaluation nor contract extension has been made. Does this means that I am already a regular employee? Please advise. Thanks a lot!

    Reply
  7. rodora

    dear sir/madam:

    i am teaching in a university here in region 02, cagayan valley. first i got an office personnel position last august 16, 2008, probationary, and after 6 months i got my permanent status of appointment as office staff. when i learned that there was a vacancy in teaching in the same university, i applied and i got the position of no filing resignation to my prior employment. the university disregard my appointment which is permanent to again go back to probationary because of the change of position, from office staff to teaching. from that time that i got my permanent status of appointment as office staff, i received all my fringe benefits. but when i got the teaching position, all these benefits were cut. Do i have the right to claim and demand that i should receive the same benefits since there is no such transfer of a company? what status of appointment should i be considered? would i again start as probationary and back to 0 years of service of what? Coz as of now i am not clarified to my status, and am already serving 6 years the said university. May i be clarified to this. thanks ever so much.

    Reply
  8. mark

    hi.iam under probationary forbthe past 3monts my concern is an employee under probation are we also need t deduct the with holding tax? even we are not regular yet?

    Reply
  9. Psyche

    Good day!

    I hope you will be able to shed light in the dilemma I’m in.

    I was hired last March 3, 2014 and signed the contract with my employer. It is clearly stated in my contract that the probationary period is 6 months and no mention of possible extension. I turned 6 months last Sept. 3, 2014 and I have not received any feedback, 3rd month evaluation, 5th month and 6th month evaluation. To be blunt, there is no performance evaluation because the company is still starting and we are basically doing anything assigned to us – from admin to sales to assistants. There is no evaluation because there is no basis of performance in the company.

    Going back, I turned 6 months last September 3. I got really sick from Sept 29 – Oct 3 and was absent. We don’t have any health insurance aside from Philhealth since it is mandatory. When I got back to work last October 7 and informed my boss that I just turned 7 months last Oct 3. I asked him regarding my regularization because I wanted to file my absences as sick leave. He told me (I screenshot his reply) that he needs a few weeks to work on my regularization because he is very busy and that he needs clients to sign up with the company so that we will have the revenue to support us. We don’t have any HR because this is a very small company composed only of 7 people.

    Why question are as follows:
    1. What are the possible legal actions to do regarding this?
    2. If he plans to terminate me, is there anything I can do to defend myself knowing that we never had any evaluation regarding our performance.
    3. How long am I supposed to wait for the “regularization” or “termination”?
    4. It this legal to deny me of my sick leave when it has passed my 6th month working with the company when I got sick?

    Reply
  10. Dom

    hello. i was under a 3-month probation for three months (july 14 to oct 14) now the company wants to hire me for a 6-month project-based contract. I will still be under the same department. Isn’t this a violation of the security of my tenure? please enlightened me asap! thanks.

    Reply
  11. Dom

    another question: a co-worker finished her three-month probation. then she was transferred to another department. the company wants her to sign another probation contract. Is there a legal basis to it?

    Reply
  12. Ethel

    Hi.Ive been hired as a CSR in a BPO company and after 6 months started performing the job of supervisor which i applied for. No papers/ documents signed but just merely a verbal agreement. At first my manager said i will performing the duties of a supervisor under an apprenticeship program that has been abolished. 6-7 months in a supervisor position when my manager had me attended the new supervisors training but still with no documentation. My promotion got delayed too since i was given an action form with violations intended for a supervisor that has been trained. So it took me almost 8 months acting the position until i have to be hospitalized for ovarian cyst and have my uterus be removed. Now that i’ll be back to work my manager informed me that i will just be a regular agent taking calls and that i did not pass the probationary period ???????
    how is that for being fair. Pls help.

    Reply
  13. Nash

    Good day! I want to know if an notice of termination is given, is it legal for immediate executory. For example, the company gave me the notice of termination last Sept. 2, is it legal that the termination is Sept. 3? I am a probationary employee. Thank you.

    Reply
  14. Jayson

    I have been working with my current employer for only 2 months when I was diagnosed to have nodule on my throat. I was advised by my doctors to undergo operation. When I informed my manager about my condition and that I need to file a medical leave for about a month since I need time to recuperate after the surgery. He denied the leave and told me that due to the nature of work I may not be fit to work.I have presented all the medical documents to file a medical leave because I’m scheduled for a thyroid surgery first week of January, however, they did not honor it. So now, I’m not sure what to do. Can you please advise me of what is the best thing to do? I’m afraid that they will terminate my employment since they did not approve the medical leave.

    Reply

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