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,
Good day!
Im an ESL Teacher who works in Japanese company here in Cebu. I would like to ask about my regularization rights, because just this month i signed a regularization contract but the problem is that my basic pay is still the same as my probationary pay. My questions are: Is it stated in the regularization law that as a regular employee my salary should increase? If it will how much percentage will it be? and if the company will not agree on it what legal actions should i take?
Please do help me in, i really am not knowledgeable about our law.
Thank you very much and more power
Hi, Sir. I would like to seek advice regarding this matter that our family is currently undergoing. My husband was diagnosed with severe obstructive sleep apnea and is currently undergoing treatment for his condition. This means that he involuntarily dozes off during daytime(daytime fatigue). Unfortunately, this has been affecting his work badly. He is on his 5th month of probationary period at this certain company. He was advised by their HR personnel to make a letter of appeal on why they should retain my husband in the company and continue with the rest of his probationary status. I guess his co-workers and bosses thinks that him dozing off means that he is slacking off. My question is, is it legal for the company to terminate his employment based on their perception that he is incompetent. We have necessary documents to support that his episodes of “sleeping at work” is due to his sleep apnea and we’re currently doing something about it(meaning spending a big amount of money on the treatment). Based on his productivity, he is doing well, but he believes that this is overshadowed by the fact that some people in his office would see him doze off (note: my husband received several merit awards from his previous employer despite him having this condition). Is there a law here in the Philippines protecting people with sleep apnea against discrimination and unjust termination? I believe in the US there are certain laws pertaining to the protection of laborers diagnosed with sleep disorders such as this. Thank you very much.
Good day!
Is it a valid memo if you are warned thru e-mail? No printed papers and signature or so and no verbal agreement between employer and employee regarding that.
Let’s say the company policy indicated that an employee is only allowed a maximum of 3 memos, what if those so-called memo’s were only sent thru e-mail, wasn’t even discussed. The employee just received it and the employer didn’t even require a feedback or at least an acknowledgement that the employee has received it and that he/she noted it or understood why he/she received that email.
What if the employee already received that kind of mail 3x, does the employer have the right to terminate the employee under those circumstances?
Hi Sir!
Could you please give me an advice on my current employment situation? I’m exactly on my 5th month of my probationary period today, Jan. 2, 2012, and on this same day, I decided to give a letter to inform my employer that I’ve decided to extend my service to the company up until the end of my probationary contract only, Feb. 2,2012. (My last month will also serve as my 30 days turn over period.)
My question is: if ever my employer does not accept my letter of intent to end contract, do they still have a hold on me even after the end of my probationary contract expired? My immediate superior told me that there is a difference between a probationary contract and the typical 6 month non-probationary contract.
I hope you could help me on this. Thanks! 🙂
Hi Sir,
I am working in a call center company for more than 180 days or six months,my rating did not pass the required score to become a regular employee and I have not signed an agreement that I will be given and extension if ever I will not pass the required score.Is it true that I am already considered a regular employee?If I was just given an extension what should be the correct process?
Gudevning Sir..
I am a probationary employee and has worked for a certain company for 2 months and I decided to resign. Right now, the company is holding my salary.. Is it right for them to do that? Could I demand for my salary?
Am I required to stay for at least one month?or would a 2-week notice be enough?
Contract Terminated by Employer.
A new employee has been hired by an outsourcing company (employer) and been handed out to our client.
After a week, he/she was forced by my employer to resign because of the skills did not fit on the project said by the client.
Factors to consider:
1. He/she passed the interview made by the employer
2. He/she passed the interview made by the client
Another issue was the schedule.
The employer and the employee agreed that there will be no Sunday work during the interview and before signing the contract. The employer told the employee that there will be Sunday work but it will be a rare case and it can be arranged with the client Team Lead if the schedule was appointed to him/her, by swapping.
After the client orientation to the employee on the 2nd day. The schedule agreement was not mentioned to the client by the employer. Then the next day, the client decided to report the issue to the employer.
The employer decided to wave the contract and pay the employee amounting half month of his/her salary. And will provide a Quit Claim to be signed before giving the money.
Can you please help the employee with this case?
From what I’ve read so far, from this blog site as well as other online sources, probationary status can indeed be extended, but only if notice is duly given prior to expiration of the six-month probationary period, NOT after it has expired. The head of our HR, a lawyer, says that that provision of the “Herrera Law” covers only rank-and-file employees, not officers. Therefore, officers can be terminated anytime. Is that statement factual or accurate? Thanks!
I’m an employee at an English language school. I have been working in this academy for 1 year and 2 months.The last time i signed my contract was in November 2011. The said contract only lasted for 2 months, that is, from November until the end of December. After the end of the contract, the company did not let me sign another new contract. However, the company wanted me to sign a new contract after one and a half months without any further explanations.Instead, I was verbally notified by my Head teacher that I wouldn’t be able to receive my salary if I didn’t sign the said contract. Despite that fact, I did not sign a new contract. My questions now are; first, Am I already considered as a regular employee in this company?(knowing that I’ve already been working for more than a year). Second, Is there a strong possibility that the company will terminate my status since i did not sign a new contract? Third, What advice could you give me?
management staff
question? an employee was hired as team leader in a call center and he/she signed a job offer stated as probationary for 3 months, and in a snap of finger without any evaluation and not given period of time, to proven themselves that they are fit and meet the company standard was fired because of impression as per employer. Is that valid to terminate his/her employment? what steps do we need to do first?
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agent staff
And one more thing with about their agents was detained for 45 mins because they cannot go until they signed the training agreement which is supposed to be given on the job offer itself and that will bind the contract and the job offer. the employee already done with their training they are already dialing on the floor and if they made mistake on the spot they are fired and scorted to hr for clearance.