PROBATIONARY EMPLOYMENT

Art. 282. 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 probationary period
shall be considered a regular employee. (Labor Code).

1. A probationary employee, like a regular employee, enjoys security of tenure. However, in cases
of probationary employment, aside from just or authorized causes of termination, an additional ground is
provided under Article 281 of the Labor Code, i.e., the 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. Thus, the services of an employee who has
been engaged on probationary basis may be terminated for any of the following: (1) a just or (2) an
authorized cause and (3) when he fails to qualify as a regular employee in accordance with reasonable
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standards prescribed by the employer.

2. Punctuality is a reasonable standard imposed on every employee, whether in government or

private sector. As a matter of fact, habitual tardiness is a serious offense that may very well constitute
gross or habitual neglect of duty, a just cause to dismiss a regular employee. Assuming that an
employee was not apprised of the standards concomitant to her job, it is but common sense that she
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must abide by the work hours imposed by his employer.

3. Satisfactory performance is and should be one of the basic standards for regularization.
Naturally, before an employer hires an employee, the former can require the employee, upon his
engagement, to undergo a trial period during which the employer determines his fitness to qualify for
regular employment based on reasonable standards made known to him at the time of engagement. This
is the concept of probationary employment which is intended to afford the employer an opportunity to
observe the fitness of a probationary employee while at work, and to ascertain whether he will become an
efficient and productive employee. While the employer observes the fitness, propriety and efficiency of a
probationer to ascertain whether he is qualified for permanent employment, the probationer, on the other
hand, seeks to prove to the satisfaction of the employer that he has the qualifications to meet the
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reasonable standards for permanent employment.

4. Unlike under the first ground for the valid termination of probationary employment which is for just
cause, the second ground failure to qualify in accordance with the standards prescribed by employer
does not require notice and hearing. Due process of law for this second ground consists of making the
reasonable standards expected of the employee during his probationary period known to him at the time
of his probationary employment. By the very nature of a probationary employment, the employee knows
from the very start that he will be under close observation and his performance of his assigned duties and
functions would be under continuous scrutiny by his superiors. It is in apprising him of the standards
against which his performance shall be continuously assessed where due process regarding the second
ground lies, and not in notice and hearing as in the case of the first ground.

5. Section 6(d), Rule I, Book VI of the Implementing Rules of the Labor Code provides that if the
employer fails to inform the probationary employee of the reasonable standards upon which the

1
Carvajal vs. Luzon Development Bank/Ramirez (G.R. No. 186169, 1 August 2012).
2
Ibid.
3
Ibid.
regularization would be based on at the time of the engagement, then the said employee shall be deemed
a regular employee, viz.:

“(d) In all cases of probationary employment, the employer shall make known to the
employee the standards under which he will qualify as a regular employee at the time
of his engagement. Where no standards are made known to the employee at that time,
he shall be deemed a regular employee.”

In other words, the employer is made to comply with two (2) requirements when dealing with a
probationary employee: first, the employer must communicate the regularization standards to the
probationary employee; and second, the employer must make such communication at the time of the
probationary employee’s engagement. If the employer fails to comply with either, the employee is
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deemed as a regular and not a probationary employee.

6. The communication of regulation standards may be implied when the job is self-descriptive in
nature, for instance, in the case of maids, cooks, drivers, or messengers. In a case, it has been held that
the rule on notifying a probationary employee of the standards of regularization should not be used to
exculpate an employee who acts in a manner contrary to basic knowledge and common sense in
regard to which there is no need to spell out a policy or standard to be met. Verily, basic knowledge and
common sense dictate that the adequate performance of one’s duties is, by and of itself, an inherent and
implied standard for a probationary employee to be regularized; such is a regularization standard which
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need not be literally spelled out or mapped into technical indicators in every case.

7. A different procedure is applied when terminating a probationary employee; the usual two-notice
rule does not govern. Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code states that
"if the termination is brought about by the x x x failure of an employee to meet the standards of the
employer in case of probationary employment, it shall be sufficient that a written notice is served the
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employee, within a reasonable time from the effective date of termination."

8. Generally, the probationary period of employment is limited to six (6) months. The exception to
this general rule is 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 employee. In the latter case, there is recognition of the exercise of managerial
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prerogatives in requiring a longer period of probationary employment.

9. The extension of probationary employment is an act of liberality on the part of his employer who
afforded the employee 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. 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. There is
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
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prospects of demonstrating his fitness for regular employment.

4
Abbott Laboratories, Philippines, et al. vs. Alcaraz (G.R. No. 192571, 23 July 2013).
5
Ibid.
6
Ibid.
7
Mariwasa Manufacturing, Inc. and Dazo vs. Leogardo Jr. and other (G.R. No. 74246, 26 January 1989).
8
Ibid.