Probationary employment

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Definition

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.[1]

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.[2]

Governing law

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.

Probationary period

Duration of probationary period

The probationary period under the Labor Code is six (6) months. In certain instances, however, the probationary period may go beyond six months.

Extension of probationary period

In Mariwasa Manufacturing, Inc. vs. Leogardo[3], 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.

Grounds for terminating a probationary employee

Article 281 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.

Source

Philippine e-Legal Forum

References

  1. Escorpizo vs. University of Baguio Faculty Education Workers Union, G.R. No. 121962 (1999)
  2. Escorpizo vs. University of Baguio Faculty Education Workers Union, G.R. No. 121962 (1999)
  3. G.R. No 74246, 26 January 1989
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