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, G.R. No. 121962 [1999])
GOVERNING LAW
Probationary employment is governed by Article 296 (formerly, Article 281) of the Labor Code, which reads:
- ART. 296. 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.
GROUNDS TO TERMINATE A PROBATIONARY EMPLOYEE
Article 296 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 VALID TERMINATION OF 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.
EXTENSION OF PROBATIONARY EMPLOYMENT PERIOD
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.
[See also Discussion on Labor Advisory No. 14, re one-month extension of probationary period during the community quarantine.]
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Hi Sir,
Is the issuance of memo with out verbal warning makes it illegal?
pax, depends on what kind of memo and the procedure under the company’s code of conduct, if any.
Greetings!
I would like to consult the situation of my friend. She is hired as a Sales Manager in a certain leasing company effective June 1, 2016. Her functions being on that position is to handle her sales group and also to generate sales as an individual. Just last week (barely 3mos from June 1), she was asked by her superior to tender her resignation effective end of August, 2016. The reason is mainly is she has not generated sales in favor of the company. Inspite her exceptional ability to generate database of prospective clients that needs ample time to work out each client for her to generate such sales. On her sales pipeline you could see the progress of in her negotiations and need some time to customize the needs of each client to close the deal. In short, marami sya talagang prospects na posibleng maisarang deal, marami syang nagenerate na database ng clients. May I know the ff;
1. What is her status as a Manager? Probationary or regular? In her Job Offer Sheet it states no prabationary period.
2. On the said Sheet, her Health Plan is upon permanency. Does it mean she is on probationary status?
3. Is it premature to ask a Manager to resign due to non-performance while she has numerous prospects currently in progress for closing?
4. Should she give in to the demand of her superior?
Pls enlighten her situation. Thank you very much
Good day,
Would like to consult my friends situation on her present company that she worked in.
She renders 6 months of project based period and almost 6 months of probationary from October 2017 and will end this coming April 12, 2018. She acquires very good performance within the range of her employment with no lates and barely absent. But despite of those performance, her superior has to terminate her contract this April 12. For the reason that her Course were not applicable in their field of work. Which is in the first place, could be discussed upon employment and she shouldn’t be employed.
In addition to that, she was informed about her dismissal 8 days before her end of contract.
Being so shocked on that news she couldn’t response, speak and think straight in front of her superior so when he let her signed her work KRA, she just immediately signed it without any chance given to provide any written explanation to justify her side.
On this case, Is her employer liable with any deviations with regards to her termination?
Hoping for any response
Have a great day and God bless!
if a person is offered a job stating that he’ll receive a salary of Pxxxxx.xx that his pay grade is a managerial pay grade level but he’s on probationary for 6 months and the job offer states that he has many benefits including allowances and xx number of days of vacation leave per year WITHOUT stating the effectivity of all these benefits, when is the legal effectivity of the said benefits?
Lex, I got this nagging feeling that this relates to an actual contract (with, of course, an actual employer). Imagine what will happen if that employer happens to be our client. =) In any case, a contract has to be considered in totality, which means that each provision has to be referenced to the others. We can’t do that unless we see the contract.
not related to probationary employment but nonetheless, i just need to know that if a person has signed a 6 mo contract, then afterwards, is offered a renewal contract and signs it, does his/her status still remains contractual?
Sir,
Supposed one was employed on the following conditions:
>Probationary period is 5 months as stated in the contract.
>Performance evaluation covering 3-months employment was conducted by the employer.
Further,
>After 3 months, result of evaluation was disclosed to the employee.
>On the release of the evaluation result, there was no accompanying notice of action whether the probationary period would be extended or would be immediately ended.
>1 month later, employee was notified with a specific date of termination of employment.
>From the start of employment up to termination of employment, it is in total 4 months.
Now, if probationary period is the period in which “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”, doesnt this imply that performance evaluation should be done at the END of the probationary period?
Also, if the evaluation period only covers a 3-month period as opposed to the 5-month period specified in the contract, does this mean that in ACTUALITY the probationary period is just 3 months?
And, if actual probationary period is just 3 months, and employee’s service was enagaged by the employer 4 months, doenst this construe that employee worked beyond his probationary period, and was in effect already a regular employee on his 4th month?
with regards to the renewal of a 6 mo contract with another 6 month contract, that would depend on the contracted work are exactly the same in both contracts.
if the contracted work is much the same in both contracts, it will not qualify as a project contract but would indicate that the work contracted with is an essential work in the company that is supposed to be manned by a regular employee. ergo, the second contract becomes a run-around on the part of the company from placing the “contractual employee” into the regular employee roll, which violates the labor laws.
if the contracted work in either contract is distinct from each other, the second 6-month contract is a valid project contract and is allowed in the labor laws and jurisprudence.
the actual probationary period of 5 months would remain so regardless of the length of evaluation periods therein. in addition, the employer has the prerogative to vary the evaluation period from a 3-month first evaluation period to a 2-month second evaluation to fit the probationary period.
evaluation does not determine how long a probationary would be. an employer may evaluate monthly, every 2 months, twice, or about the end of the probationary period.
can a probationary employee who has not yet signed a contact of employment but only a verbal agreement be terminated without just cause?
is he entitled for a security of tenure even without a written contract?
is he entitled to be given the standard to be followed to be a regular employee?
employer is not deducting benefits like sss philhealth. pag ibig and withholding tax. what will be the remedy of employee?
HI
Need help, I just want to ask, in a private company when will sick leave and vacation leave be given? is it 1 year after date hired or 1 year after date of regularization?
Hi Sir,
I would like to seek for legal advice regarding my current situation.
I have been with my current company for eight months already. The first six months were under probationary status and I was given another contract to sign for regularization. I have tendered my resignation already which will be effective on my 9th month.
My concern is related to my leave credits.
According to our handbook,
* Upon regularization, an employee would have earned SL days with Pay of 1.25 days by the number of months’ probationary period. (e.g., 1.25 days x 6 months = 7.5 days).
* Upon regularization, an employee would have earned VL days with Pay of 1.25 days by the number of months’ probationary period. (e.g., 1.25 days x 6 months = 7.5 days).
However, our admin officer informed me just recently that this particular provision in our handbook was overlooked and is due to be changed.
According to him, we are due to acquire leave credits upon our regularization. If this happens, the number of leave credits that I have now, after 8 months of working for them (10 SL and 10 VL) will be substantially reduced to only 2.5 VL and 2.5 SL.
My question now is this, is it legal for the company’s management to institute such change (especially diminishing the benefits which they have put in place and was oriented to us since the first day of our employment)? As an employee, what legal protection do I have against such unfair practices?
I hope you can give light to my questions.
Thanks in advance,
YnaCM
any update on this?