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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Dear Sir,
I got in as a regular item in a government institution since February 2015, on a probationary period for six months. It’s been more than three months and I haven’t received my salary yet. I follow-up on a regular basis, but the response is similar every time – no people to sign my papers, or there are a lot of papers (including mine somewhere) on this person’s desk; cashier office will just ring me once the papers are ready. At the moment, my pockets cannot afford to just wait for their call.
By law, how long is the allowed duration for a new employee on probationary period to receive his/her salary? I failed to find an answer in the Labor Code of the Philippines. I just want to be informed so I can find a way to expedite the process.
Thankfully yours,
Marian
My question is, I signed for a probation contract and in case I don’t want to continue, do I need to give them a 30 days notice, since according to the law I know for under probation that “anytime the employee /employer can terminate their contract” thank you
Hello sir,
i would like to asked you about my situation..
I am already 9mon.in my job but still im not yet regular ..i was hired without any contract that was signed but verbal only..our employer said that 5mon.is the end of my contract…and yet when my contract is near ….i was been extend…and now i stay here for 9 mon.and when i was asked my employer if i could go home for 5days cuase my another end contract will come,my employer said that…i allowe you only three days…cuase there is no end duration of your contract..and then i was wondering sir if there is no duration of my contract..am i entitled for a security of tenure even without a written contract…and am i entiled to given the standard to be followed to be a regular..
Please sir i need and advice.thank you.
Hi Sir,
just want to ask the complexity of my situation regarding my manager, we hired him last jan. 2015 as a replacement of me to take over business development since i will be heading overseas. I expected him to lead and take over on my responsibilities to run the office in Philippines but since then i never really witness him excel in his position instead he still waits for order from us and has no initiative.
we are not convinced of his performance so before his probation period ends, would it be okay to terminate to him? or possible to extend the probationary period to give him time?
Thank you and hoping you can give us an advice.
Hi,
I just want to ask regarding my current situation. There”s this certain company that give me a job offer it is contractual, they discussed the salary and benefits and the branch where i will be assigned. i have signed a paper stating my name, the position and check the box with the word accept and with my signature on it. i haven’t passed yet any requirements they asked me to pass so that icould start right away, but i don’t feel like pursuing this job, what shall i do? Is it okay if i dont pursue it? Does it cause damages for the company?
Hi, i have resigned from my current job on May 28 and i am willing to serve my notice till 30th June or max 1st July. I am still on probation. My company insists that I serve a 2 month notice period as in the company contract or they will take legal action against me. Due to some family problems i am unable to serve 2 months notice. what are my options.
hi..
Can you enlight me on what grounds shall i used if i am to file a case against my company. the situation is like this…
from my company, the owner owns two company. i was once the RME for the other company (under Pro b period for 3 months) but the AGM/GM for both have transferred me to their department but still under pro b for 3 more months. i resigned at the previous company and rehired by the other (same owner – same GM and AGM) the duration will be until on june 2 .. the evaluation was made by the AGM prior to June 1, and by June 1, he let me signed the evaluation from pro b to regular with an increase of salary effective june 1. by june 1, the owner declared that the AGM and the GM will render their last working days at the company effective june 2, 2015. now my evaluation paper was then passed to the acting GM and to the CEO. By June 16, 2015,yesterday, the HR manager called me over the phone that the acting GM and CEO told her that since the 2 personnel, the previous AGM and GM was not connected with the company anymore, their evaluation to me is not valid anymore and i will be re-evaluated by the acting GM and CEO and will be under observation again. i ask the HR manager up to when will it be and she told me she don’t know.
How shall i deal with this?
thanks!!!
Good day.
I am currently a probee and I have just been evaluated. I had a very poor evaluation because my boss had ill feelings towards me. May I ask if it is the HR who will decide the final status of the employee? I also want to ask if there was a way out of termination. As stated:
“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.”
It was obviously an unjust cause and the standards/job description was not made known to me in the start of employment, instead it was made known after 4 months of employment.
hi sir good day. I would like to ask if a person on prabation period and the employer extended the probationary period for another two months to further evaluate / it seems the person involved did not comply for the satisfaction of the company and after the extension the company plans to extend another two months more for additional observation Without even proper gcompany in the given period. Is that even legal?
Good pm sir,my husband ended up his 5 months contract in a well known restaurant but until now he was still working with the said restaurant without a renewed contract..he kept on asking the hr but the hr always refuses to comply with my husbands request of having contract renewal..on the 4rth of july it is his 6th months of work..what are we going to do..thank you so much