Published 13 January 2020, The Daily Tribune

I have been getting quite a number of questions about probationary employment. Thus, this article summarizes the nature and effects of such kind of employment.

A probationary employee is one who, for a given period of time, is on observation by an employer during which the latter determines whether or not he is qualified for permanent employment.

Case law provides that during the probationary period, the employer is given the opportunity to observe the skill, competence, attitude and fitness of the probationary employee while he seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment.

As a general rule, the probationary period should not exceed six months from the date the employee started working. However, the probationary period may be shortened or extended upon agreement of the parties or when the nature of work requires a longer period. For instance, in the oft-cited case of Buiser vs Hon. Leogrado (GR L-63316, 31 July 1984), the Supreme Court considered the probationary period of 18 months valid considering that the solicited advertisements are published a year after the sale has been made and only then may the company be able to evaluate the efficiency and selling ability of the sales representatives.

It is noteworthy that within the probationary period, probationary employees are entitled to security of tenure notwithstanding their limited tenure and non-permanent status. Hence, during the probationary employment, they cannot be dismissed except for just or authorized cause or when he fails to qualify as a regular employee in accordance with the reasonable standards made known by the employer to the employee at the start of the employment.

A dismissal based on just cause means that the probationary employee has committed a wrongful act or omission while a dismissal based on an authorized cause means that there exists a ground which the law itself allows to be invoked to justify the termination of an employee even if he has not committed any wrongful act or omission such as redundancy or cessation of business operations.

Based on law and jurisprudence, it is clear that the process required to validly terminate an employee depends on the ground invoked.

If for just cause, due process means compliance with the requirements of (1) service of first written notice to explain, (2) hearing, and (3) service of second written notice of termination. If for authorized cause, due process means compliance with the requirement of service of notice to the employee to be terminated and to the Department of Labor and Employment at least one month prior to the effectivity of the termination.

Meanwhile, due process of law for the ground failure to qualify as a regular employee does not require notice and hearing. It consists of making reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment.

As a final note, termination of probationary employment must be done prior to the lapse of the probationary period. Otherwise, termination may only be based on just or authorized cause as the employee has already become a regular employee after the lapse of his probationary period.

For those on probationary employment, may you prove your worth. For the employers, may you find the worthy.

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