Let’s Talk about Probationary Employment
I have been receiving a lot of questions from probationary employees who found their employment allegedly prematurely ended after the ECQ was lifted. Many have started less than 180 days ago, mostly from January 2020. After the lockdown, probationary employees found themselves unceremoniously unemployed by “heartless” employers who don’t seem to get that they have mouths to feed.
After they’ve been terminated, many of them go to HR forums to post the questions, “Is it right for them to end my employment at a time I need the job the most? Is it fair? And most importantly, is it legal?”
Before we answer these questions, you first have to understand what Probationary Employment means to both employers and employees, and why it’s important to have a probationary period before regularizing a staff. To proceed, here are the Top 15 Questions about Probationary Employment in the Philippines:
Let’s dive into these questions one by one:
1. How do we define probationary employment?
Probationary employment is closely defined in the Labor Code, Book 6 – Post Employment, Article 281:
Article 281. Probationary employment. Probationary employment shall not exceed six (6) months form 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.
The IRR of the Labor Code also reiterates the temporary employment of a probationary employee:
Source: JDP Consulting
From this, we can deduce three important takeaways:
a. Probationary employment is a trial period where an employer is given time to decide whether the company wants the staff to join the company as a regular employee,
b. Probationary employment should be 6 months or less, unless there’s a longer apprentice agreement. Exceeding the 180 days of employment will make the probationary staff a regular employees, and
c. Probationary employees may be terminated for just causes (Their fault) or when he fails to qualify as a regular employee in accordance with reasonable standards made known to him from the beginning of his/her employment. If “bagsak” siya sa evaluation, employer has the right to terminate his/her employment within the probationary period.
2. What does Probationary Employment Mean for the Employer?
Before a probationary employee is hired, it must be made very clear to the staff that he/she is coming in as a probationary employee, not a regular employee. The 6-months is his trial period, and he/she must meet the company standards first before he/she can be regularized. If he/she is bagsak, the employer can terminate his/her probationary at any time. For this, I strongly suggest to Employers:
- Have your lawyer incorporate the terms of probationary employment into the employment contract para walang labuan ng usapan.
- Make it very clear to the employee from Day 1 what the standards for regularization are.
Put these standards in writing and have the probationary employee sign it to ensure that it is clear what is expected from him.
If he’s a sales staff, make a written document to cite the sales quotas he is expected to reach. If he’s an office staff, set deadlines on the stuff that he has to submit per day, week or month. Before he starts, the Code of Conduct must be explained to him.
Huwag yung vocal advice lang. Dapat written.
- If the probationary employment makes a boo boo — ALWAYS have a written documentation on that offense.
If he is often absent/late, always give him a written warning. ChanRobles.com cites that a staff can be cited as gross and habitually late if he’s late at least 10x a month for at least two months in a semester:
For our company, we make an incident report for every mistake and ask the staff to formally explain why such mistake happened. We file the NTE and explanation to their 201 for documentation. If she makes a calculating mistake causing the company to pay the wrong amount, document it in an NTE and ask for her explanation with an acknowledgment that she should not repeat it again.
Build up the documentation in such a way so that in case you terminate, you have a file load of documentation on why you had to terminate her.
It does not mean that you must give a person an incident report to show na iniinitan mo siya. The incident report must be in good faith and given when there’s an actual offense that occured. Dapat maging fair ka din.
I personally give NTEs because I want to show the staff where he did wrong, how he can improve, and how to prevent the mistakes from ever happening again. If the staff can correct his mistakes, why not regularize him, diba?
But how will the staff improve if you don’t tell him how to? That’s why everything must be documented — a) So the staff knows where he did wrong and b) To protect yourself from DOLE cases in case you terminate the staff. Huwag yung vocal warning lang. Dapat may written warning palagi.
- Regularly evaluate the employee in writing
Some people think that you need to evaluate them on the third or fifth month.
This is NOT TRUE. You can evaluate them at any time within the 180 days. Pag may problema, evaluate na agad.
I’ve had probationary staff who I’ve fired within the week. She was late on her first day. She did not show up on her third day because there was nobody to take care of her kids. And she was slow and made frequent mistake. I talked to her and told her that there was no way that she was going to get regularized if she kept up that level of performance. She then decided that her family was more important to her and graciously resigned, solving my problem.
- Never mislead and give a good evaluation if the probationary employee is not that good.
So many problems could have been very solved if the manager was only honest to the probationary employee a￼s to whether he/she would make a good addition to the team.If you don’t think he/she is a good fit to the organization, do NOT give her a good review.
Just rip off the bandaid and tell him/her what he/she needs to improve so they will.
- This is not the time to be maawain (to be sympathetic). Be professional. Trabaho lang tayo.
Some employers fail to evaluate the staff because naawa sila that the probationary employee was a breadwinner, had half a dozen of kids, a single mom and pregnant.The problem is, you’re evaluating her for a job, NOT a charity. Judge the staff based on his/her performance, and not for their personal problems. Ironically, it is the awa and that lack of documentation that will bite you in the end.
- Once it is time to terminate, collect all the written documentation and evaluation you have on the person, cite that in the Notice of Termination, and serve it to the person as humanely and compassionately as possible.
If all the offenses and boo boos have been documented, the sad news will not come as a surprise to the probationary employee.
- Pay the probationary employee on time. The law says 30 days upon successful clearance.
3. Do we still need to prepare a written warning, memo, or notice to explain regarding the probationary employee’s poor performance before delivering to him the notice of early termination of his/her probationary contract with the company? Is it required?
As I mentioned in the earlier point, ALWAYS document offenses regardless of employee status. Don’t stick to verbal warnings. It will not hold up under scrutiny. Always assume that the company is at risk of a DOLE complaint. Always ensure that you have complete documentation so in case the staff will complain, siguradong talo ang staff because their complaint has no basis.
So why would the staff DOLE you if you have enough supporting documents?
The Philippines is unfortunately a pro-Labor country and DOLE will do its job to listen to employee complaints. However, if the complaint has no merit, the arbiter themselves will be the one to sermon the staff and the case will be thrown out the window.
However, having a case is a hassle in both ends. And while the employer will eventually win the case, it’s still a hassle to go through. So why invite yourself to that hassle and expense just because you lacked documentation? Always document your basis for termination para walang talagang problema.
4. How Many Days is a Probationary Employee on Trial Period?
6 months — specifically 180 days.
Under Article 281 of the Labor Code of the Philippines, 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. An employee who is allowed to work after a probationary period shall be considered a regular employee. I use this helpful date calculator to count 180 days:
In a 2015 ruling, Enchanted Kingdom Inc vs. Verzo, GR No. 209559, December 9, 2015, the probationary employee was terminated on the 180th day. The Employer won this case as the law allowed termination of a probationary at the very last day of his probation period. Emphasizing that notice and hearing are not required in case a probationary is not retained for failure to comply with the reasonable standards set by his employer, the Supreme Court outright said:
” Whether or not Verzo was afforded the opportunity to explain his side is of no consequence.”
5. Can you fire the probation employee one month after you’ve employed her for poor job performance?
Thanks to Lawyers in the Philippines for the explanation — The Supreme Court has sustained a dismissal only one month into the probationary period provided that there is basis for the employer’s assessment. [Canadian Opportunities Unlimited, Inc. vs. Dalangin, 2012]
Lesson Learned: If you’re given a chance to be a probationary employee, WORK HARD and PROVE YOUR WORTH. Come early, be focused, do the work and be someone the team wants to have. Because once you received the notice of poor performance, that’s it. You had 6 months to prove your work, but didn’t.
6. What does this mean for the probationary employee?
The conditions are clear — You are on trial period. It’s sink or swim. So within this 6 months period, you have to really deliver results, exhibit good working attitude, and work your way so that you will be regularized. If you can deliver, you will and SHOULD be regularized. If not, you will be terminated.
- Conversion to permanent status shall be primarily conditioned and dependent upon satisfactory service and performance of the work assigned. It is within the exclusive discretion of the Company to determine whether or not such service is satisfactorily performed and whether the Employee has successfully passed/complied with established standards for regularization.
- These standards, among others, include the following criteria: dependability, trustworthiness, efficiency, initiative, attitude towards work/the public/the Company, its officers and co-employees, cooperation, client response, judgment, punctuality, quality/quantity of work, educability, articulateness and professionalism.
The Company reserves its rights to terminate probationary employment, even prior to the expiration of the probationary period, for any of the just and authorized causes provided by the existing law or for the Employee having failed to satisfactorily meet and comply with the above-mentioned standards, conditions and requirements.
IMPORTANT: If you are unhappy with the terms of the contract, DO NOT ENTER INTO A PROBATIONARY EMPLOYMENT CONTRACT. Ask for a regular employment contract.
What’s most annoying to employers is a Probationary Employee who agreed to the terms of his/her employment, and then later on, pag bagsak sa evaluation and gets terminated, runs straight to DOLE and complains about the contract he/she willingly entered in the first place. Such employees are Kryptonite to employers.
7. What if the 180 days had lapsed without a “talk” or a Notice of Termination? They have not given me a Regularization Contract? What’s my status?
Congratulations, the Probationary Staff is now a regular employee! You don’t need a talk or regularization contract to say you are, because you now are!
8. Can the Employer Extend Probationary Employment Beyond the 6 Months Period?
I will derive my answer from Mr. Sonnie Santos’ article about Probationary Employment. An employer can extend the probationary employment beyond the 6 months IF:
(1) It is covered by an apprenticeship agreement stipulating a longer period (Art 282); Buiser vs. Leogardo, Jr. G.R. No. L-63316 July 31, 1984
(2) Probationary period may be extended as an act of liberality to give an employee another chance if the latter failed to meet performance expectations:
For aught that appears of record, the extension of Dequila’s probation was ex gratia, an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now 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. The law, surely, was never meant to produce such an inequitable result.
By voluntarily agreeing to an extension of the probationary period, Dequila (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. The Court finds nothing in the law which by any fair interpretation prohibits such a waiver. And no public policy protecting the employee and the security of his tenure is served by prescribing voluntary agreements which, by reasonably extending the period of probation, actually improve and further a probationary employee’s prospects of demonstrating his fitness for regular employment.
(3) There is a condition that’s beyond the employees control that affects his performance (e.g., a health problem, miscarriage, giving birth or forced leave). Or a sudden negative or business climate that’s unexpected and considered force majeur.
9. How do you extend a Probationary Employment if You Want to Give an Employee a Second Chance If the Proby Employee Fails to Make the Cut?
IMPORTANT: A company should consider to extend a probationary employment if the staff requests for it and asks for a second chance, in the hopes of being regularized. Hence, it would be better if there’s a written request for extension made from his side.
To extend a probationary employment, it is important that the decision to extend must be agreed on BY BOTH COMPANY AND EMPLOYEE. The agreement must be:
a) Made BEFORE the expiration of the probationary period, not after,
b) Preferably done because the Probationary Employee requested for it. Hence, it would be better if there’s a written request for extension made from his side,
c) The agreement is clear the extension of probationary employment is only because the staff did not meet the standards for regularization within the 6 months, citing the failed results of the performance evaluation.
d) Given the request, management is giving the staff a SET TIME and a SECOND CHANCE to work and see if such decision would be reversed and changed. The terms for extension must be clear and time bound, and
e) The extension agreement must be also signed by the employee signalling his consent.
Here is a sample of how a Probationary Employment Extension Letter in Filipino looks like. Regardless, I would still prefer that the request comes from the staff so it’s cleaner and more proper.
How long can you extend a Probationary Employment?
The extended period has no legal limitations, but LegalGuide’s safe recommendation is 2-3 months max. Basta, not too long. Enough to show lang that you’re giving the probationary employee a chance to see if it’s a good fit.
In our company, I extend it for a total of 4 months only. Beyond the four months, we have to make the decision as to whether to regularize the probationary employee or to terminate his employment kasi hindi niya talaga kaya yung trabaho. The 4-months is mutually agreed on and is cited in the Extension.
10. Do Probationary Employees Get Severance Pay When Terminated?
Technically, a Probationary Employee when terminated is not entitled to Separation Pay if a) He was terminated for Just Causes (Meaning to say, ikaw ang may mali), or
b) If the employee failed to satisfactorily meet and comply with the reasonable standards, conditions and requirements made known to him at the time of his engagement.
Pag bagsak ka sa evaluation, final pay lang. So an employer needs to ensure he has the written evaluation to show that the employee has failed the reasonable requirements for regularization so that the company does not need to give final pay.
However, you will get Separation Pay if the reason of termination was Retrenchment or Redundancy.
Art. 283. Closure of establishment and reduction of personnel. — The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or under taking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.
The Labor Code indicates that all workers — Probationary or Regular Employees — are entitled to separation pay if they were terminated under the following conditions:
Separation pay is 1 MONTH OF PAY because minimum amount of separation pay is 1 month since probationary employees have not yet reached a year of service.
11. Will the Probationary Employee Gets Separation Pay When the Staff Resigns?
Unless your boss is super nice, you will get ZERO separation pay if the resignation was voluntary. This is not just for probationary employees. Even if you worked for 25 years, if you resign, your employer is NOT obliged to give you any separation pay UNLESS there was a prior agreement that they would give you one.
12. Can Probationary Employees Whose Employment Ended Avail of the SSS Involuntary Unemployment Benefits?
Short Answer — NO if you got terminated for Just Causes or for Failing the Reasonable Standards for Non-Regularization.
YES if you got terminated for Authorized Causes:
The SSS Involuntary Unemployment Program is the newest among the benefits being offered by SSS. This program allows qualified SSS members who are involuntarily separated from work to claim for a cash allowance equivalent to two times his average monthly salary credit. Here’s How to Apply:
The cash grant is worth 50% of the member’s average monthly salary credit (MSC) for two months. If you earn Php 14,000.00 or the minimum wage — meaning, your company has deposited Php 1,690.00 total per month — the Monthly Salary Credit is Php 14,000. The cash grant is worth 50% of the member’s average monthly salary credit (MSC), so following the table, you will get Php 7,000 per month. The program will last for only two months.
NOTE: If two or more compensable contingencies occurred within the same period, SSS will only pay the highest benefit from the recorded contingencies. They are given one year from the time of their separation to file for their benefit claim.
Member-applicant must have paid at least 36 monthly contributions.
IMPORTANT: 12 months of the 36 months should have been paid within the 18-month period prior to the month of involuntary separation.
13. Is the ECQ included in the 6-Month Probationary Period?
This means, the ECQ period is NOT counted in the probationary period of 6 months if you have temporarily stopped working. So if you started in January 2, 2020 and you were supposed to be regularized 180 days later, the ECQ period from March 17 to May 30 (2.5 months) for example is NOT counted IF you are at home resting.
It’s is only counted if you worked during the ECQ be it as a Work From Home (WFH) or skeletal force. If so, count the number of actual days you worked (or calendar days if non-stop) to see how many days in ECQ did you work.
14. I have enough documentation to terminate a Probationary Employee for failing the standards of regularization. What do I need to do next?
The law is clear — the Employer do not need a notice or hearing to terminate a probationary employee who has failed due to poor work quality. However, you do need to provide a Written Notice of Termination to Terminate a Probationary Employee
A Written Notice of Termination is Crucial When Terminating a Probationary Employee
According to Section 2, Rule 1, Book VI of the Implementing Rules, a written notice must be served to the employee, within reasonable time from the effective termination date IF the termination is brought about by the completion of a contract or phase, or by failure of an employee to meet the standards of the employer in the case of probationary employment. If there is no written notice, but only of a verbal inform that the probationary employment would be terminated, the dismissal will have no legal sanction. (Tamson’s Enterprises, Inc. v. Court of Appeals, Sy, G.R. No. 192881, 16 November 2011).
If the work of your probationary employee is found to be unsatisfactory, you’ll need to serve him a written notice of Termination of Probationary Employment. You can dismiss a probationary employee without notice or hearing because this is just a trial period. Just make sure that you have enough documentation to back up the decision on why he failed the standards for regularization. The two notice rule does NOT apply if a probationary employee is dismissed for poor work quality.
If it’s under Just Causes, the twin notice rules should be followed. I will quote directly from the Philippine e-Legal Forum because they give a wonderful summary of the twin notice rule:
There are two written notices that must be complied with in order for a dismissal, based on just cause, to be valid. Note that “valid dismissal” is used in a general context, as the failure to comply with the requirements of procedural due process does not make the dismissal “illegal,” but entitles the employee to the payment of damages (discussed in a separate post). It is also important to emphasize that the twin notices must be WRITTEN. A verbal notice is equivalent to no notice.
- 1. The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any;
- 2. Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice; and
- 3. A directive that the employee is given opportunity to submit a written explanation within a reasonable period.
“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data and evidence, and decide on the defenses against the complaint.
(b) AMPLE OPPORTUNITY TO BE HEARD. After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 299 (b) of the Labor Code, as amended. “Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him/her and submit evidence in support of his/her defense, whether in a hearing, conference or some other fair, just and reasonable way.
The old requirements specifically calls for a twin-notice and hearing. This has been revised because, based on jurisprudence, a hearing is merely a component of the right to be heard. A hearing is not required in all cases. A formal hearing or conference becomes mandatory only when:
15. I am a Probationary Employee, x-Months Pregnant and was Terminated for Failing the Reasonable Standards for Regularization. Is it Legal for the Company to Terminate Me For Inhumane Reasons? Kawawa naman may new baby ako? How Will I Still get My SSS Maternity Benefit Claim?
If you are pregnant and was hired as a probationary employee, please DO NOT use your pregnancy as the reason why a company should regularize you.
I personally don’t think that employees should use their Pregnancy, Gender, Age, Race, Family Problems or Health Condition as a reason on why an Employer should retain their employment IF they are truly unfit for the job or have failed the reasonable standards for regularization.
I have seen Pregnant Women who demand employers to give them a day off per 2 weeks because they needed to go for an OB appointment. Or they have asked their employer for special concessions given their delicate state. As a mother myself, I know how hard it is to get and stay pregnant. However, I have never used my pregnancy against my employer, nor have I ever given them a reason to sack me because pa-absent absent ako ng pabigla bigla sa trabaho due to a delicate pregnancy.
There are delicate pregnancies that require employees to have a Medical Leave of Absence as backed with an OB order. When this happens, stay at home and do months long of bedrest. For such conditions, care must be given to the mother. During this time, your LOA is NOT counted as part of your probationary employment.
However, if you are pregnant and this has caused you to slack off or not perform as well on the job, please do not fault your employer for not regularizing you because given the condition, hindi mo naman talaga magawa yung trabaho.
Doon lang tayo sa Performance, shall we?
If you can do the job well and can outperform everyone else, you SHOULD be regularized regardless on whether you have a baby in your belly or not. If you are a recent graduate but can do the job of a 10 year experienced employee, you should be promoted and given higher pay. Doon lang tayo sa performance.
Please do not hostage your employer and they you should get VIP treatment because you are Pregnant, Old, Have more kids than your colleague or have more problems. When you were hired, the terms of employment was explained to you. It would be best to stick to such terms of employment when evaluating an employee. No matter what, always be professional and leave gracefully. Don’t burn bridges.
As for the SSS Maternity Benefit?
If you were terminated by your employer for failing the reasonable standards for regularization, don’t fret. As part of your final pay, request as well from your employer a Certificate of Non Advancement of Maternity Benefit. You can use this document to apply for SSS Maternity Benefit as a voluntary member.
16. What will my Final Pay Consist of?
According to Labor Advisory No. 6, Series of 2020, the Final Pay of Employees consists of:
Note that separation pay will only be paid if the probationary employee is terminated for Authorized causes. For almost all Probationary Employee, Final Pay consists of:
Unpaid Wages + Pro-Rata 13th Month Pay – Liabilities = Final Pay
I have read far too many posts lately of probationary employees complaining about their employers. Of businesses so cruel in quickly terminating their employment at the time they need a job the most. They ask what is the basis for their bosses to say that they’ve failed to make the grade of regularization. They take the rejection personally, and want to run to DOLE to complain at the next available opportunity.
Most of my readers know me as a reasonable person. If there is a clear abuse, I will not stop myself from telling the staff to run and escalate the problem to DOLE. However, most of the posts I read are mostly complaints against their former employers. The question I ask myself is, “Given that you have a lot of complaints against your employer and your boss, why are you still contesting your termination as if you want to be reinstated and given back your job? Now that you know what type of company/employer they are, why do you want to go back?”
For me, if the probationary staff is excellent — As in no lates, no absences, no work attitude problems, consistent and smooth work — the staff should indeed be regularized. Good people are hard to find, so for me, kung maayos ang tao, don’t fire them kung magaling sila. I-regularize mo na lang.
Personally, I feel that if the staff is excellent, laging may trabaho. If a staff works well, even if natanggal dahil proby status, mabilis pa din maghanap ng work. As they say, “If you’re really good, it’s the company’s loss. Not the staff.”
However, if the staff is nalalate, maraming excuse kung bakit pa-absent absent, does not double check the work and commits regular boo boos, then companies should man up and not regularize them. Huwag nang maawa. Just rip off the bandage.
The 6 months is a trial period for both employees and employers. Both sides must have their eyes wide open to decide if they’re a good fit for each other. If they are, continue the employment. If they’re not bagay, cut it off na. Huwag nang patagalin pa.
Simple lang naman — A probationary employee should work their ass off in the 6-month time given them. If they are good, great. They should be regularized. If they are bagsak, accept the truth and find another job that’s a better fit for you. And if you get rejection, cry at home and move on. Who knows? Maybe God has better plans for you.
Pero UNLESS there is abuse, huwag tumakbo sa DOLE. Because if you do, it will be even harder to find another job. Kasi parang ang labo kausap ang staff. They know from the onset that they’re entering into a probationary employment and have 6 months to prove that they are deserving of regularization. Pero for whatever reason, they did not make the cut. Ngayong natanggal kasi bagsak sa performance, magrereklamo.
What does that mean? Sino ang magulo? Ang employer or ang employee?
Move on, find another job, and live another day.
Take this as a positive experience na lang. One day, you will find the job that’s really right for you. And you will remember that it is this probationary experience that made you the person you are today, and you will thank me later on for stopping you from sabotaging your employment record, so that you can find a better job in the future.
Anyway, it’s late. If there’s any correction to the above, please PM me. Have a great week ahead!
LaborLaw.ph, Probationary Employment Contract Under Philippine Labor Law