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¬Ě, 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.

137 thoughts on “Probationary Employment

  1. jerry

    Hello sir’

    I just wanna ask ‘ the day i supposed to sign or renew my cotract but i would rather not sign it’ am i have the rights to get separation pay and my 13th month pay especially i work contractual employee for almost 2years

    Reply
  2. boogie

    Can an employee be terminated during his/her probationary period even though there was no feedback or performance evaluation done during the entire period? 1 week before regularization, the Manager of the said employee called to have the latter write and send a letter with the intention to extend probation. The employee has not complied with this request since this will essentially waive all his/her rights against possible illegal dismissal? am I correct? Some facts to consider:

    1. This is for a branch head position with sales targets
    2. Annual targets were not fully met yet
    3. NO Sales officer was provided or hired by the Company to help work on targets (branch requires a sales officer post but was not filled)
    4. Employee is 8 months pregnant and will be out for 3months – paid leave if regularized
    5. No performance evaluation was done with the employee and is no signed document to signify Management was not pleased with her performance
    6. 1 week before regularization the Manager of employee called to say that her probi period will be extended

    Question is, is this even legal? Does this constitute illegal dismissal if the employee is terminated?

    Reply
  3. Diane

    Hihingi po ako ng advise or tulong sa sitwasyon ko.
    Ako po ay isang janitor. Regular employee po ako simula pa po noong August 2014.
    Kinausap po ako nung isang Boss ng kumpanyang pinag tatrabahuhan ko.
    Ang sabi po sa akin ay, “Usap na, mag resign ka na, madami ng ang galit sa iyo”
    Ako po ay nabigla sa kanyang sinabi. Na-blanko po ang utak ko.
    September 16, 2016 po nung kinausap ako, morning shift po ako noong araw na iyon, 6AM to 2PM ang aking schedule.
    Nung sinabi po sa akin na mag resign na ako, ako po ay umuwi na ng maaga bandang 9AM.
    Kinabukasan po ay wala na ako sa schedule.
    Ang supervisor ko naman po ay hindi din ako kinakausap ng ayos, at ako nga daw po ay tanggal na sa trabaho.
    Sinubukan ko po magpunta sa HR office nung kumpanya. At idinulog ko po ang nangyari sa akin.
    Ang sabi po ng HR ay madami na daw po ang nag rereklamo sa akin. May mga complaint letter daw sila na natatangap.
    Yung mga complaint letter naman po na iyon ay hindi nakakarating sa akin. Kaya wala po akong kaalam alam. Hindi din po hinihingi sa akin ang aking paliwanag tungkol sa mga reklamo sa akin.
    nag pumilit po ako na humingi ng kopya nung mga sinasabing reklamo, binigyan naman po ako ng HR pero hindi pa din nila ako hinihingan ng explanation.
    Ang sabi din po ng HR sa akin ay pumirma ka na lang sa resignation mo.
    Hindi po ako pumirma sa sinasabi nila na resignation. Pag pumirma po kasi ako dun, ibig sabihin ay bukal sa loob ko ang pag reresign.
    Pagkalipas po ng ilang araw ay bumalik po ako sa HR para itanong ang aking status ng employment.
    Ipinipilit pa din po nila na pumirma ako sa resignation.
    Ang sabi pa po ng HR ay AWOL na daw po ako.
    Paano po ako magiging AWOL ay sila naman po ang hindi nag bibigay sa akin ng schedule.
    illegal po ba ang pagkakatangal sa akin?
    Ano po ang maganda ko gawin ?
    Salamat po.

    Reply
  4. april

    Hello,

    Good day to you! I have a concern about my friend about her proba period which will end this coming 26th day of September 2016. In the company contract, proba or regular should render 2 months before leaving the company but my friend wanted to leave by the time her proba period ended. DO you think it would be possible for her to have the right to leave without rendering 2 months? Kindly advice. Thank you

    Reply
  5. AC

    Hi,

    I want to know If I have the right to file a case to a company that recently hired me but only gave me 1 day to work because I was immediately terminated oy 2nd day of work.

    And if ever, what would be a just compensation for the company who illegally dismissed me. Hoping for ypur reply soon. Thanks!

    Reply
  6. Judy

    I would like to seek for legal advice ..

    Is probationary period can be one month only? or should be 3-6 months?

    Thank you..

    Judy

    Reply
  7. Jessie

    Hi sir, may I ask if what is the wage rate for a probationary managerial position in iloilo city, Philippines. I am employed with a Motorcycle dealer Corporation. thanks sir.

    Reply
  8. Precious

    good afternoon Atty. is there any law for prohibiting probationary employee to take a leave? i.e. official leave (with proof)

    Reply
  9. Mr. Cook

    Greetings Sir/ma’am,
    I would like to inquire about my work in a company I already signed a 6 months probationary contract last May 26 2016 the contract date ended last November 26 2016 6 months to be exact on the contract it’s stated that i shall receive a notification whether I qualify or didn’t qualify for permanent employment but I haven’t recieve any notification now I tried to talk to my superior about the said topic and they told me that I’m already a regular employee now my question is am I supposed to sign another contract stating that I am now a regular employee? Right?

    Reply
  10. Stephanie

    Hi sir
    I was hired last november 2016 under probitionary period
    I want to resign due to my family situation.
    Is it allowed?how many days I will wait before the company let me go?

    Thank you

    Reply
  11. Dante

    Good day! I was hired by my company last August 2016 with 6 months provy period. I was evaluated during my third month. This week, I was advised by my boss that he is not satisfied with my performance and that I should do more. He extended my provy period but did not give a definite number of months.

    My queries are:

    1. Is the evaluation conducted during my third month sufficient to declare that I am not yet ready for regular employment?

    2. Is the extension of my provy period valid? as there was no issuance of a written agreement to prove so or stating therein that I failed to meet the standards and just being given the chance to make up for a certain period of time.

    3. What is the maximum extension of provy period, if allowed by labor laws?

    Reply

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