PROBATIONARY EMPLOYMENT

1. Probationary Employment
What is the 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.
Who is a probationary employee?
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])

2. Employers Right to Select; The Need for Probation

The employer has the right or is at liberty to choose who will be hired and who will be denied
employment. It is within the exercise of the right to select his employees that the employer may set
of fix a probationary period within which the latter may test and observe the conduct of the former
before hiring him permanently.
Once the employer finds the employee qualified, the employer may extend to him regular (permanent)
appointment even before the end of probation. Conversely, if the purpose sought by the employer is
neither attained nor attainable during probation, the employer may terminate it.

3. Rights of Probationary Employee; Causes of Termination

Aside from Just and authorized causes of termination, Probationary employee may also be
terminated for failure to qualify as a regular employee in accordance with reasonable standards made
known by the employer to the employee at the time of the engagement [Article 295].
Probation is the time and the opportunity the employer utilizes to size up not just Knowledge, Skills,
Abilities, and Attitude of the prospective permanent employee.

4. Limitation to Termination of Probation; Regular Status after Probationary

Period
The employers power to terminate a probationary employment contract is subject to the following
limitations;

PROBATIONARY EMPLOYMENT

1. It must be exercised in accordance with the specific requirements of the contract;

2. 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;
3. The employers dissatisfaction must be real and in good faith, not feigned so as to circumvent
the contract of the law;
4. There must be no unlawful discrimination in the dismissal
(Manila Hotel Corp. vs. NLRC, GR No. 53453, January 22, 1986)
The standard of performance must be explained and accepted, and the performance should be
appraised against those standards unless the job is self-descriptive like maid, cook, driver, or
messenger. (Robinsons Galleria/Robinsons Supermarkets vs. IR Sanchez, GR No. 177937, January
19, 2011)

5. Is it Proper to Reinstate a Probationary Employee?

If an employee was illegally terminated while on probation is reinstatement a justified remedy
despite the lapse of the probationary period?
Article 293 provides that reinstatement applies even to a probationary employee unjustly dismissed;
hence, reinstatement is the proper relief. However, the relations between the parties are so strained
that separation pay in lieu of the reinstatement should instead be awarded. Considering that the
agreed probation is 6 months, counted as one year, the separation pay is one months pay. And the
dismissal is illegal, the employee is likewise entitled to backwages. But the backwages will not cover
the whole time the case was pending. It should cover only the period from the date she was dismissed
up to the last day of the agreed probation period.

6. No Successive Probations
An employee who is allowed to work after a probationary period shall be considered a regular
employee.
It was held in Octaviano vs. NLRC, GR No. 88636, Oct. 3, 1991, an employee should be considered
a regular employee on all counts;
1. The nature of her job as a parts clerk require her activities which are deemed necessary and
desirable in the usual business of the General Diesel Power Company, in connection with
dealing in parts, sales, and services.
2. Her employment was not covered by any apprenticeship agreement.
3. She was rehired repetitiously (May 22, 1985, Feb. 20, 1986)
Probation in Sister Company
There is no basis for subjecting an employee to anew probationary or temporary employment where
he had already become a regular employee when absorbed by a sister company.

7. Period of Probation Not Necessarily Six Months

(Art. 265) probationary employment shall not exceed 6 months

PROBATIONARY EMPLOYMENT

The probationary employee may be dismissed for cause at any time before the expiration of 6 months
after hiring. But if he continues to work beyond 6 months, he ceases being a probationary employee
and becomes a regular or permanent employee.
General Rule
Exception

:
:

Six-Month Probation
Probation more than 6 months (if parties agree)

In the case of Buiser, et al vs. Hon. Vicente Leogardo, Jr. & General Tel. Directory Co., GR L63316, July 31,1984, there is recognition of the exercise of managerial prerogatives in requiring a
longer period of probationary employment, such as in the present case where the probationary period
was set 1 for eighteen (18) months, i.e. from May, 1980 to October, 1981 inclusive, especially where
the employee must learn a particular kind of work such as selling, or when the job requires certain
qualifications, skills, experience or training. xxx

8. Extension of Probation
May a probationary employment be extended?
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 employers
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.

9. Last Day of Probation

Supreme Court used two different computation methods in three cases
Under the first method, a probation of, say 6 months, ends on the same date it started 6 months
before.
CALS Poultry vs. Roco, GR No. 150660, July 30, 2002
Alcira vs. NLRC and Middleby, GR No. 149859, June 9, 2004
Under the second method, it ends 180 days from the starting date.
Mitsubishi Motors vs. Chrysler Phil. Labor Union, GR No. 148738, June 29, 2004
10.

Probation of Teachers
The probationary employment of professors, instructors and teachers shall be subject to
standards established by the department of education.
(Paragraph 75. Manual of Regulations for Private Schools).xxx Full-time teachers who have
rendered three consecutive years of satisfactory service shall be considered permanent.
The legal requisites, therefore, for acquisition by a teacher of permanent employment, or security of
tenure, are as follows:
1) the teacher is a full time teacher;
2) the teacher must have rendered three (3) consecutive years of service; and

PROBATIONARY EMPLOYMENT

3) such service must have been satisfactory.

Manual of Regulations also states that a full time teacher is;
a. One whose total working day is devoted to school;
b. has no other regular remunerative employment; and
c. is paid on a regular monthly basis regardless of number of teaching hours;
and that in college, the normal teaching load of a full-time instructor shall be eighteen (18) hours a
month.
(A part-time member of the faculty cannot acquire permanent employment under the Manual of
Regulations in relation to the Labor Code.)
Article 282 [now 281] of the Labor Code which provides that; the services of an employee who
has been engaged on a probationary basis may be terminated or a just cause or when he fails to
qualify as a regular employee in accordance with reasonable standards made known to the employee
at the time of his engagement.