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,
Are probationary employees entitled to a separation pay?
Thank you so much..
Probationary employee are only provided with his last pay and 13th month pay upon separation.
how about tax return?
hi sir,
wat if in case of signing of a probationary contract and the employee decides to resign with reasonable grounds e.g. health reasons, is he liable for any bridge of contract? i’ll wait for your response sir. pls email it to yellowgirlofmarch@yahoo.com. tyank you very much sir.
Hi Sir what will happen if I cancel my probationary contract before starting to that company.
Hi Sir,
May I ask, being a probationary employee, in regular holiday such as Independence Day.
Should the employer pay us even we dont report to the office?
Thanks and regards
Hi, Please send copy of your reply. thanks!
Gud afternun sir,
I just want to ask if there is a law saying that living allowance of employees are taxable of 15% same us our monthly salary or even worst. I also want to know if the law about probationary employee is just the same with contractual employee? wherein since we are continuously serving in the same school (I am a teacher), minimum of 1 school year, does it mean we should be considered as regular? How come majority of us are still contractual even we are already serving for years. Lastly, I just want to ask if the city government has a right to change the date of implementation of the increase in salary announce in the news that it should start this July..
I hope sir you can help me with this matter. I don’t know a lot about the law or about my rights.
Thanks…
Hi,
Ask ko lang po what if kung ayaw naman magpadeduct ng employee ng mandated deductions: sss, pag-ibig, philhealth esp. income tax? Ano po ang maiging gawin?
Hope someone will response.
Thank you and Godbless.
Hello! I hope you can enlighten me on the matter and give me advice. I have been a probationary employee for almost 11 months. I understand that proby period is only upto 6 months. The company has mentioned for a need to extend three months because of the world crises. We agreed to do so but after 3 months, our evaluation has not even been done. Last June, my 9th month in the company, I filed a sick leave because I had to go for check up and the doctor advised me for 1 day rest although she advised me to be admitted in a hospital. I should have started enjoying the regular benefits since May but my salary was deducted for two days absence and I lost my incentives for the month June. Where shall I bring my case? Thanks
Hi! I just need some advice, one week left before our 6th month for regularization however we havent heard any feedback if we are going to be regularize or not. then 4 days before. Some of us was given a chance to be extended for a couole of month and some was advice that they didnt make it, and the rest including myself doesnt have any decision yet!
Is that a legal process for probationary period? As we get hired we were given an advice that we should know our status on our 5th month and now we are just surprise that we are no dont have a job anymore especially this coming Christmas. We are not prepared nor given a memo that this is going to happen. Do we have the right to sue this company regarding with their unjust management policy.
Hi
I’m on my sixth month.When I went to the office to work.They just told me that I am terminated na daw! I did not receive any notification or kung ano ang grounds ko.
Thanks
im 182 days with my employer yesterday (march 08, 2010)..my sup told me that im a regular employee by default coz im more than 6 months..she informed me, with that status ill be given another 2 months to prove myself.. i must admit that my scores were really low.. if in case my scores will not go up, she told me that i may be transfered to another department or be terminated…is it legal to extend another months for a full regularization & can they still terminate me if i will not get higher scores coz im regular employee by default?..
your help will be gladly appreciated..many thanks..
good day sir,
Im rj i become a probitionary this last march 28,2010 as a company guard and so on this last may 5,2010 i was in my post the hr manager call me to there office and telleng me that i was early endo she said that the president wanted to endo me because he dont want my performance.is that fair for me as a probitionaty to early endo on very early without telleng or giving me a warning about my performance?
hello sir!
i am thankful i found your site. i really need legal advice.i have just dismissed from work, actually 11 of us. now, we think the grounds thrown to us are unfair because some of our colleagues have the same grounds but they still remain in the institution… some of those grounds are the ff: 1.) we are not yet married, 2.) we are not yet finished with our masters degree, and some do not start schooling yet. i have been a contractual employee in the institution for 2 years, continues contract for 2 years, all is contractual. Every semester, we just renew our contract. Now, the administration fired us out on the last day of our contract without any notice that they won’t renew our contract for the next school year. they just told us that they won’t renew our contract for the first semester of the next school year with those grounds and just come back if we comply all those grounds. we have asked advice from DOLE and they passed us to the NLRC. We are advice to file illegal dismissal and backwages, and we did so. Now, i want to ask if we have fight on the case since we are only contractual.
Thank you! i will be waiting for your response on this matter! God bless!!
Hi Sir,
Can I use the sample above, “ex gratia” to extend one of our employees probationary period to another 3 months? We did an assessment on his 5th month and another one on his 6th month. Still, we can’t tell or decide and we feel the time is not enough to determine if he is fit or not to be a regular employee.
Many thanks.