An Introduction to Probationary Employment

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.

What are the grounds for terminating a probationary employee?

Article 281 of the Labor Code 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.

What is the governing law for probationary employees?

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.

Can you give an illustrative case?

In a recent case, 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 that 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 invalidly 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.

3 comments

  1. What if i finish my 6 months as a Probationary and i don’t want to become regular. do i have to do the 1 month prior resignation, even i am not regular? Plz help

  2. Since my 6mos probationary status is nearing, the Company already informed me, about my employment status. There were parameters showed and according to them I failed on 1 of their basis to become a regular employee. With this, I was given 3months extension. For your comments and suggestions please. Thank you very much and hoping to enlighten me on this.

  3. i was hired as a probationary employee starting April 6, 2015. Last Oct 2, I was informed by HR that I did not qualify for regularization on Oct 6th. She said to turn over all the company supplies by latest Oct 5. I was given 3 options – to file a resignation letter, write a letter expressing extension to work, or do nothing but do not report for work on the 6th. On Oct 5th, at late 7-8pm, I was forced to make turn over and this will be my final decision to make actions. During the job evaluation on Oct 2 I was not given a copy and did not sign anything. On the final hours of Oct 5th, I was harassed and pressured by the HR Mgr. Before that I asked for my copy of contract which she said she will. Due to intimadation, pressure, upon handling to me the contract, she asked me to sign the job evaluation report. Because of extreme pressure, I was forced to sign. There was no formal Letter of termination given to me. She said never to come back to office anymore after the turnover.
    On the 6th Oct I did not report anymore.
    Wish to go legal actions vs the employer. Any chance?

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