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.

172 thoughts on “Probationary Employment

  1. karen

    Hi Sir,

    May I ask for your insight? My friend is a probationary employee as a warehouse personnel involving a lot of heavy lifting job. It turns out that he developed a scoliosis and he presented the medical result to his superior. He took leave (1-2 day maximum in a month) during the time he’s experiencing a back pain.

    However, after a 2-day leave due to sickness (flu), he was informed by his superior that that day was his last day at work and that the reason is his medical record.

    The sudden notice gave a big impact on my friend’s mental and emotional estate for a couple of days.

    I just want to ask if the dismissal is legal.

    Reply
  2. Warren

    Hi I’m Currently a probationary employee in my company. and ended on August 5 2017 and this morning the the HR give an extention period for another three months for my probationary starting August 5 2017 to November 5 2017.my question is it valid na ganun po ginawa nila sa akin.because I think its beyond six month already.

    Reply
  3. anon

    i was being endorsed as probationary employee and after a week it was taken back because of wrong advisory… is it legal?

    Reply
  4. seth

    Atty. may 6 months po kasi akong pinirmahan na papel states that i am a probationary employee, is it a contract? eh ayaw ko pong mag regular dun sa company kahit na alam ko pong nagagawa ko naman po mg maayos yung trabaho, should i give them a notice that i will only finish my 6months probationary period?

    Reply
  5. Inter

    Hi Sir, is extension for probationary period without justifiable reason can be subject to constructive dismissal? i stayed in the company for 3 months but the inclusive date of my probationary period is good for 2 months. If this is illegal, what is the appropriate title for the case?

    Reply
  6. Max

    My employer ended my probationary period stating that it is because the company has no projects lined up for me. I’m working as a Project Manager assigned to a sister company to complete projects/tasks. I noticed though that my company is still putting ads for PM and there were recent new hires. My company notified me on the 29th November that it will be my last day and presented to me my check for my last pay and a “bonus” equivalent to 1 month pay. Our HR said that it has been decided by management and that’s it.

    My Client, the sister company of my former company, offered to retain me as a Consultant for lesser work days and pay. It is odd though that I am still “requested” to do “minor” tasks for my former company for a fee.

    I believe i was terminated based on discrimination while my company still needs me to complete “minor” tasks.

    Please advise.

    Thank you
    Max

    Reply
  7. Winiefredo

    Hi,

    Thank you for this article. On the other hand, I would like to seek help regarding the situation I had with my recently ended employment with my company. I just had my 5th month review prior to my company ending/dismissing my employment with them. Evaluation sheet on metrics was discussed with me but I believe I was not completely coached or focused on since day 1. Thus, I have been failing my metrics. I requested for an extension so I can make up for my scores but was denied or dismiss without considering with the belief that if I will be assisted well, I can deliver better performance in the bpo industry as a supervisor. With the situation that I had, is there a merit for me invoking illegal dismissal due to lack of support provided to me? Thank you so much

    Reply
  8. key

    I would like to ask if you were given a 5th-month evaluation on your 6th month on the company and then 3 days prior to you ending the probationary period is this legal to do so?

    Contract indicated that 6/26/17 is the start date
    end of the probationary period will be 12/23/17.

    Reply
  9. RacGren

    We had a probationary employee who are pregnant right now. She is in her 4th month in probationary status. Can we terminate her since she was not performing well in the office because she was always absent due to her pregnancy? What law in labor code covers her situation . Thank you very much

    Reply
  10. chelai

    Sir,
    My contract says that I will be a probationary employee for 3 years and will be a regular employee after. We don’t have any Government Benefits aside from SSS. I would like to ask about my rights as an employee and if what my employer doing is legal. Thank you

    Reply
  11. Kino

    I am on probationary employment its bound to expite on feb 15 but i resigned due to personal problems am i still obliged to render 30 days notice thanks

    Reply
  12. Ariane

    Hi! I just want to ask for your advice regarding my current situation,I am employed in a school and the first contract that they asked me to sign was a single piece of paper saying that I will be under probation within six (6) months. I was then about to resign due to personal reasons but was able to finish my probationary period still I provided a resignation letter during that time,after that I was able to resolve my issue and decided to continue my work in the said school so I retracted my resignation and was then asked to sign another contract stating that I will again be under probation for one (1) year. Now I wanted to resign from my job because I was given a better opportunity but the head of the school does not want to sign my resignation and told me that if I will not be finishing my contract I will be talking with his lawyer or even if I am able to find them a replacement he still will not give me my COE and documents that I need.I actually felt that he was threatening me that he will give me bad records. I already followed the proper protocol of 30 days notice and rendering. They also did not provide me a copy of my contract.Though what I remembered from it is that there is none written regarding payment for breach of contract and that an employee can leave the company if s/he will be terminated or if s/he will resign. I just want to ask what will be the proper thing to do? And if the said contract will be considered as valid knowing that I am not holding any copy? I hope that you will be able to help me.Thank you.

    Reply
  13. Jake

    Hi Sir,

    May I ask for probationary period of six months?
    If you are under probationary contract for 6 months and took a 1 month unpaid vacation leave voluntarily. Does the length of your vacation leave counts to your 6 month probationary period?

    Hope someone will response.

    Thanks and god bless

    Reply
  14. paul

    hi .. is it fair for the employee to have multiple tasks and a probation period of 1 year? i was absorbed by march 2017 and its already feb. 2018 .. and now i feel like im going to be terminated because of nothing ..

    Reply

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