6. Probationary

Probation

the period during which the Er may determine if the Ee is qualified for possible inclusion in the regular force. (Holiday Inn Manila v. NLRC, G.R. No. 109114, 14 Sept. 1993)

It is usually a six-month period during which the Er observes the performance and conduct of the Ee. If he passes the agreed standard, he will be retained as a regular Ee. If he fails, his tentative employment ends.

There is probationary employment where the Ee upon his engagement is made to undergo a trial period during which the Er determines his fitness to qualify for regular employment based on reasonable standards made known to him at the time of engagement. (Tamson’s Enterprises, Inc. v. CA, G.R. No. 192881, 16 Nov. 2011)

Probationary Employment

Employment where the Ee, upon his engagement:

• Is made to undergo a trial period;
• During which the Er determines his fitness to qualify for regular employment; and
• Based on reasonable standards made known to the Ee at the time of engagement. (Sec. 6, Book VI, Rule I, IRR)

NOTE: In all cases involving Ees engaged on probationary basis, the Er shall make known to the Ee the standards under which he will qualify as a regular Ee at the time of his engagement. (Sec. 6(d), Book VI, Rule I, IRR)

Requisites for a Valid Probationary Employment

• Probationary status must be agreed upon; a written contract is not invariably required;
• The agreement must spell out that the Ee will go through a probationary period of employment for a specified number of months;
• The agreement must specify reasonable standards on the basis of which his performance will be evaluated;
• There must be an assessment of the performance of the probationary Ee in relation to the standards; and
• The result of the assessment must be communicated to the Ee.

Rules on Probationary Employment

• Er shall make known to the Ee at the time he is hired, the standards by which he will qualify as a regular Ee; NOTE: Where no standards are made known to the Ee at that time, he shall be deemed a regular Ee. (Sec. 6(d), Rule VIII-A, Book VI, IRR)
• Probationary employment must have been expressly agreed upon; without such explicit agreement, the employment is considered regular;
• An Ee allowed to continue work after the probationary period shall be considered a regular Ee;
• During the probationary period, the Ee enjoys security of tenure; his services can be terminated for a just cause, an authorized cause, or failure to qualify as a regular Ee in accordance with reasonable standards made known to him at the time of his engagement under Art. 296 [281] of the Labor Code.

Q: Alcaraz signed an employment contract with Abbott for the position of Medical and Regulatory Affairs Manager which stated that she was to be placed on probation for a period of six (6) months. In line with this, she received an email containing Abbott’s organization chart and a job description of her work. Further, during Alcaraz’s pre-employment orientation, she was briefed on her duties and responsibilities as Regulatory Affairs Manager. Abbot has a procedure which requires that the Ee’s performance must be discussed and reviewed with the Ee two times. Later on, Alcaraz was terminated for allegedly failing to meet the regularization standards for the said position.

Alcaraz filed a complaint for illegal dismissal and damages against Abbott and its officers. She claimed that she should have already been considered as a regular and not a probationary Ee given Abbott’s failure to inform her of the reasonable standards for her regularization upon her engagement as required under Art. 296 [281] of the Labor Code.

Further, she claims that her performance was not discussed with her in line with the procedure of Abbot. Was Alcaraz sufficiently informed of the reasonable standards to qualify her as a regular Ee?

A: YES. An Er is deemed to have made known the standards that would qualify a probationary Ee to be a regular Ee when it has exerted reasonable efforts to apprise the Ee of what he is expected to do or accomplish during the trial period of probation. In this case, Abbott clearly conveyed to Alcaraz her duties and responsibilities as Regulatory Affairs Manager prior to, during the time of her engagement, and the incipient stages of her employment. Hence, Alcaraz was validly terminated from her employment.

Nonetheless, despite the existence of a sufficient ground to terminate Alcaraz’s employment and Abbott’s compliance with the Labor Code termination procedure, it is readily apparent that Abbott breached its contractual obligation to Alcaraz when it failed to abide by its own procedure in evaluating the performance of a probationary Ee. Since this procedure was not followed, the dismissal was therefore procedurally infirm rendering Abbot liable for nominal damages. (Abbott Laboratories v. Alcaraz, G.R. No. 192571, 23 July 2013)

Period of Probationary Employment

GR: It shall not exceed six (6) months from the date of the commencement of employment.

XPNs:

• Covered by an Apprenticeship or Learnership agreement stipulating a different period (Art. 296 [281], Labor Code); or
• When the parties to an employment contract may agree otherwise, such as:
• When the same is established by company policy; or
• When the same is required by the nature of work to be performed by the Ee. (Busier v. Leogardo, Jr., G.R. No. L- 63316, 31 July 1984) e.g., The probationary period set for professors, instructors and teachers is three consecutive years of satisfactory service pursuant to DOLE Manual of Regulations for Private Schools. NOTE: By voluntarily agreeing to such an extension, the Ee waived any benefit attaching to the completion of the period if he still failed to make the grade during the period of extension. (Mariwasa Mfg. Inc. v. Hon. Leogardo, G.R. No. 74246, 26 Jan. 1989)
• The Er gives the Ee a second chance to pass the standards set. (Mariwasa Manufacturing, Inc. v. Leogardo, Jr., G.R. No. 74246, 26 Jan. 1989)

NOTE: Period of probation shall be reckoned from the date the Ee started working. (Sec. 6(b), Book VI, Rule I, IRR) Probationary Ees may be dismissed for cause before end of the probationary period.

After the lapse of the probationary period 6 months, Ee becomes regular.

Purpose of the Probation Period

The purpose of the probation period is to afford the Er an opportunity to observe the fitness of a probationary Ee at work.

Instances when Extension of Probationary Period is Allowed

Under Labor Code, Art. 296 [281], a longer probationary period may be allowed when:

• The nature of the job requires extensive training;
• A reasonable company policy justifies a longer period; or
• The employee voluntarily agrees to a reasonable extension for a second chance to meet the standards.

NOTE: The extension of period should always be reasonable; Such that, the nature of the work so requires and that it is the amount of time required for an ordinary worker to learn the job.

Essence of the Prohibition on Double or Successive Probation

The evil sought to be prevented is to discourage scheming Ers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their Ees. (Holiday Inn Manila v. NLRC, G.R. No. 109114, 14 Sept. 2003)

Q: Michelle Miclat was employed on a probationary basis as marketing assistant by Clarion Printing House but during her employment she was not informed of the standards that would qualify her as a regular Ee. 30 days after, Clarion informed Miclat that her employment contract had been terminated without any reason. Miclat was informed that her termination was part of Clarion’s cost- cutting measures. Is Miclat considered as a regular Ee and hence entitled to its benefits?

A: YES. In all cases of probationary employment, the Er shall make known to the Ee the standards under which he will qualify as a regular Ee at the time of his engagement. Where no standards are made known to the Ee at that time, he shall be deemed a regular Ee. In the case at bar, she was deemed to have been hired from day one as a regular Ee. (Clarion Printing House Inc., v. NLRC, G.R. No. 148372, 27 June 2005)

Obligation of the Er to his Probationary Ees

There is obligation on the part of Er to inform standards for regularization at the time of engagement. If reasonable standards for regularization are not made known at engagement, the worker is deemed regular from the start of employment.

Q: Middleby Phils. Corp. hired Alcira as engineering support services supervisor on a probationary basis for six months. Apparently unhappy with Alcira’s performance, Middleby terminated his services. Alcira contends that he was already a regular Ee when his employment was terminated. According to Alcira’s computation, since Art. 13 of the NCC provides that 1 month is composed of 30 days, 6 months totaling 180 days, then his 180th day would fall on 16 Nov. 1996 making him a regular Ee before his termination. Is the contention of the petitioner in the computation of six months correct?

A: NO. The computation of the six (6) month probationary period is reckoned from the date of appointment up to the same calendar date of the sixth month following. In short, since the number of days in each month was irrelevant, Alcira was still a probationary Ee when Middleby opted not to “regularize” him on 20 Nov. 1996. (Alcira v. NLRC, G.R. No. 149859, 09 June 2004)

NOTE: In Mitsubishi Motors v. Chrysler Phils. Labor Union (G.R. No. 148738, 29 June 2004), the SC ruled in this wise: The probationary-employment provision is Art. 296 [281] of the LC.

“Applying Art. 13 of the NCC, the probationary period of 6-months consists of 180 days. This is in conformity with Art. 13(1) of the NCC. The number of months in the probationary period (6 months), should then be multiplied by the number of days within a month (30 days). Hence, the period of 180 days. As clearly provided in Art. 13, in computing a period, the first day shall be excluded and the last day included. Thus, the 180 days commenced on 27 May 1996, and ended on 23 Nov. 1996. The termination letter dated 25 Nov. 1996 was served on Paras only on 26 Nov. 1996. He was, by then already a regular Ee of the company under Art. 295 of the LC.”

Instances When a probationary Ee is deemed to be a Regular Ee

• If he is allowed to work after a probationary period. (Art. 296 [281], LC)
• If no standards, under which he will qualify as a regular Ee, are made known to him at the time of his engagement. (Rule I, Book VI, IRR)

Grounds for Terminating Probationary Employment (J-A-FaR)

• Just causes;
• Authorized causes; or
• When he fails to qualify as a Regular Ee in accordance with reasonable standards made known by the Er to the Ee at the time of his engagement. (ICMC v. NLRC, G.R. No. 72222, 30 Jan. 1989; Art. 296 [281], LC)

NOTE: If pre-termination of probationary contract is due to the valid causes, the Er is not liable to pay the monetary value of the unexpired portion of the employment.

While probationary Ees do not enjoy permanent status, they are afforded the security of tenure protection of the Constitution. Consequently, they cannot be removed from their positions unless for cause. An Ee allowed to work after the probationary period becomes a regular Ee; the Er cannot evade that consequence by treating the period as an ordinary fixed-term contract. (CSA v. NLRC, G.R. No. 87333, 06 Sept. 1991; Art. 296 [281], LC)

Limitations on the Er’s Power to Terminate a Probationary Employment Contract

• The power must be exercised in accordance with the specific requirements of the contract;
• If a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used;
• The Er’s dissatisfaction must be real and in good faith, not feigned to circumvent the contract or the law; and
• There must be no unlawful discrimination in the dismissal. (Manila Hotel Corporation v. NLRC, G.R. No. L-53453, 22 Jan. 1986)

NOTE: The probationary Ee is entitled to procedural due process prior to dismissal from service.

Q: Ron Cruz was employed as gardener by Manila Hotel on “probation status” effective 22 Sept. 1976. The appointment signed by Cruz provided for a 6-month probationary period. On 20 Mar. 1977, or a day before the expiration of the probationary period, Cruz was promoted to lead gardener position. On the same day, Cruz’ position was “abolished” by Manila Hotel allegedly due to economic reverses or business recession, and to salvage the enterprise from imminent danger of collapse. Was Cruz illegally dismissed?

A: YES. There is no dispute that as a probationary Ee, Cruz had but limited tenure. Although on probationary basis, however, Cruz still enjoys the constitutional protection on security of tenure. During his tenure of employment, therefore, or before his contract expires, Cruz cannot be removed except for cause as provided for by law.

What makes Cruz’ dismissal highly suspicious is that it took place at a time when he needed only but a day to be eligible as a regular Ee. That he is competent finds support in his being promoted to a lead gardener in so short span of less than six (6) months. By terminating his employment or abolishing his position with but only one day remaining in his probationary appointment, the hotel deprived Cruz of qualifying as a regular Ee with its concomitant rights and privileges. (Manila Hotel Corp. v. NLRC, G.R. No. L-53453, 22 Jan. 1986)

Period of Probationary Employment of Private School Teachers

The probationary employment of academic teaching personnel shall not be more than a period of six (6) consecutive semesters or nine (9) consecutive trimesters of satisfactory service, as the case may be. (Sec. 117, The Manual of Regulations for Private Higher Education)

NOTE: An academic teaching personnel, who does not possess the minimum academic qualifications under Secs. 35 and 36 of the Manual of Regulations for Private Higher Education shall be considered as a part-time Ee and, therefore, cannot avail of the status and privileges of a probationary employment. A part-time Ee cannot acquire a regular permanent status, and, hence, may be terminated when a qualified teacher becomes available. (Manual of Regulations for Private Higher Education)