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, 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.

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.

6 thoughts on “Probationary employment

  1. adamot

    please help me out. im confused on the status of my employment. i was hired oct 15,2010. on my regularization appraisal last may 15,2011. i signed that i am a regular but not recommended status, based on the statistics of my performance which is based on metrics. i have a re-evaluation coming up in july 2011. would that mean i can get still terminated. and would i get some benifits if i get terminated, what would be my real status of employment??

  2. pretty

    Good day,

    i was hired june 17,2014 but the company early termination on the spot on nov10,2014 on that day because of QA violation low performance for 2 months but im top evey week and top 2 of the month how come On QA or quality assurance. so i meet the requirements every month only QA to termination of contract?

  3. Jacqueline

    Please help me. I was working at a company for a total of two weeks. I am on probationary. In the contract, it stated a 30 Day notice before leaving. However, I do not know if it was for probationary or regularized employees.

    I resigned just last Tuesday EFFECTIVE IMMEDIATELY due to clash of company culture. Can I be held liable for damages and am I still due my first two weeks salary? THANK YOU!


    Interesting comments ! I loved the insight , Does anyone know if my assistant would be able to get a template DA 4187-1-R version to fill out ?

  5. Patrick

    My Immediate Supervisor spoke to me May 30,2016 (monday) told me that I failed my stats and that Im terminated showed me my scorecard for the month of May 2016 … Did not show me last months scorecard just sai I failed tht one also.. Failed my attendance but I never got any sanction for my attendance… No sanction for my scorecard … But I was not suprised that he was terminating me since last month he forced me to resign but when I said constructive dismissal I was Terminated May 31,2016 due to end of contract or not recommended for regularization.. My regularization is supposed to be July 4, 2016… I did not ho to work on May 31-June 2 because I know Ive been terminated and too embarrassed to show my face… He tagged me as AWOL and place my last salary on hold. He texted me asked me to return to work on June 3 but only to embarrass me more by removing my access and getting the laptop and then ask to go home after lunch. i have been working hard everyday I would go on Overtime w/o pay and work at home to finish reports and look for leads but I did not mind all that because I am dedicated.. He even hired a replacement as his assistant that i knew he was going to get rid of me… i should have resigned when when he asked me to because he already told me im not giing to be regularized on my second day with him .. i feel tht he doesnt like me as a person or something about me that he can easily bully. I want to file a case for illegal termination.


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