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.

136 thoughts on “Probationary Employment

  1. car

    hi sir i would like to ask advice on this, i’m a probationary employee and they terminated my contract on the fourth month after a heated argument with my boss of refusing to report once a week in their other branch, although we end up ok a day before my termination we agreed that i will be reporting the ffg. week to the said branch, this seems made a “lamat” on our relationship as superior -subordinate the next day we argued about other things. other dept head insult me and she denied that she tells something about what i’m claiming that she said, i even had copy of an email as a supporting documents of the things she’s denying even showed that to HR but right away the HR said she will fast trak my evaluation and on that same day i got evaluated, discussed my evaluation that it fails and forced to sign it, has no choice than to sign it ans i asked for copy but she refuse to give copy on that same day she issued, notice of termination.

    Reply
  2. wenby

    I’m a call center agent for 3 mos. I’m a performer and always on top for the past 2 mos.

    But during this month of January, I’m at the bottom. If in case the company will gonna kick me out, can I file a case against them? please advise. thanks!

    Reply
  3. kenneth

    Hi,

    I just need an advise. I am with my current company for two months already as probationary. Then, I am given a job offer by another company but need to start within two weeks time. As probationary for two months, is it ok legally to give a two weeks resignation to my current employer? I read in my probationary contract also, no mention of any agreement that I need to give them 30 days notice. Thanks

    Reply
  4. Elicachin

    Hi,
    My probationary employment has been ended for only 4 months.i just received a notice from my employer indicating the end of my probationary employment but without any reason stated on the letter.i reply to them asking for a grounds for ending my probationary status but i havent received any response from them until such time that i discover that they decided to close all their branches including our branch (cessation of business branches).as a probationary employee am i entitled to a separation pay even if i stay for 4months only? your response would be a big help for me…. Thanks

    Reply
  5. Elicachin

    Hi,
    My probationary employment has been ended for only 4 months.i just received a notice from my employer indicating the end of my probationary employment but without any reason stated on the letter.i reply to them asking for a grounds for ending my probationary status but i havent received any response from them until such time that i discover that they decided to close all their branches including our branch (cessation of business branches).as a probationary employee am i entitled to a separation pay even if i stay for 4months only? your response would be a big help for me…. Thanks

    Reply
  6. fleurdeliz

    Hi Sir,

    I need your help on below issue. i am seperated from my legal husband when i met my live-in partner now. Me and my live-in partner is working in the same company. he is being offered by a regular position but the company is asking if i am willing to give way and resign from my regular position. is this valid? we are not legally married and i am not carrying his surname.

    Reply
  7. Rosario

    If the employee did not meet the set standards and have been properly evaluated, do you need to give 30 days to probationary employee before you end his contract? I’m concerned that employee will no longer function efficiently if he know he will also be terminated.

    Reply
  8. Anna

    Hi,
    I am a BPO regular employee, just last May 1 I was asked to undergo and finish my training for my account when in fact for 3 months I already dialed and was at the operations floor for the said time.

    My question is, I was given a Notice to Explain Sheet regarding being absent during my training schedule and my trainor discussed to me the company training policy regarding incurring absences during training which in fact was only discussed just today May 10th, 2017. And as far as I know that is only applicable for new hire employee policy for training.

    If in case, during their deliberation they came up with a decision of terminating my employment will it not violate my security of tenure. And for the record, I only am on VERBAL WARNING STATUS as of this writing as they are only implementing those rules only now under new account management.

    Please give me an immediate insights on this matter as deliberation will be on the 17th of May 2017.

    Reply

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