PROBATIONARY EMPLOYMENT

Prepared by: Atty. Edwin E. Torres (2020)

LABOR CODE:

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).

OMNIBUS RULES IMPLEMENTING THE LABOR CODE (BOOK VI, RULE VIII-A):

Section 5 (c): An employee who is allowed to work after a probationary period

shall be considered a regular employee.

Section 6. Probationary employment. (a) Where the work for which an employee
has been engaged is learnable or apprenticeable in accordance with the standards
prescribed by the Department of Labor, the probationary employment period of the
employee shall be limited to the authorized learnership or apprenticeship period,
whichever is applicable.

(b) Where the work is neither learnable nor apprenticeable, the probationary
employment period shall not exceed six (6) months reckoned from the date the
employee actually started working.

(c) The services of an employee who has been engaged on probationary basis
may be terminated only for a just cause or when authorized by existing laws, or
when he fails to qualify as a regular employee in accordance with reasonable
standards prescribed by the employer.

(d) In all cases involving employees engaged on probationary basis, 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.

1. There is probationary employment where the employee upon his engagement is made 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.  The probationary employment 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 employer that he has
the qualifications to meet the reasonable standards for permanent employment. Thus, the word
probationary, as used to describe the period of employment, implies the purpose of the term or period, not
its length.

2. 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
standards prescribed by the employer.1

3. 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

1
Carvajal vs. Luzon Development Bank/Ramirez (G.R. No. 186169, 1 August 2012).
1
was not apprised of the standards concomitant to her job, it is but common sense that she must abide by
the work hours imposed by his employer.2

4. 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
reasonable standards for permanent employment.3

5. Obstinate infractions of company rules and regulations constitute sufficient manifestations of a

probationary employee’s inadequacy to meet reasonable employment norms. All employees, be they
regular or probationary, are expected to comply with company-imposed rules and regulations, else why
establish them in the first place. Probationary employees unwilling to abide by such rules have no right to
expect, much less demand, permanent employment.4

6. 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.

7. 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
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
deemed as a regular and not a probationary employee. 5

8. 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
need not be literally spelled out or mapped into technical indicators in every case. 6

9. 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
employee, within a reasonable time from the effective date of termination." 7
2
Ibid.
3
Ibid.
4
Philippine Daily Inquirer, Inc. vs. Magtibay Jr. and Other (G.R. No. 164532, 24 July 2007).
5
Abbott Laboratories, Philippines, et al. vs. Alcaraz (G.R. No. 192571, 23 July 2013).
6
Ibid.
7
Ibid.
2
10. Section 6 of the Implementing Rules of Book VI, Rule VIII-A of the Code specifically requires the
employer to inform the probationary employee of such reasonable standards at the time of his
engagement, not at any time later; else, the latter shall be considered a regular employee. Thus, pursuant
to the explicit provision of Article 281 of the Labor Code, Section 6(d) of the Implementing Rules of Book
VI, Rule VIII-A of the Labor Code and settled jurisprudence, an employee who was informed of the
standards of his probation a month after he was hired is deemed a regular employee upon his hiring. 8

11. 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
prerogatives in requiring a longer period of probationary employment. 9

12. 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
prospects of demonstrating his fitness for regular employment. 10

13. Although a probationary employee has limited tenure, he is still entitled to a security of tenure.
Even if a probationary employee does not enjoy permanent status, he us accorded the constitutional
protection of security of tenure. This means that he may only be terminated for a just cause or when he
otherwise fail to qualify as regular employee in accordance with reasonable standards made known to
him by the employer at the time of his engagement. He is given the protection during the probationary
period of knowing the company standards the new hires have to meet during the probationary period, and
to be judged on the basis of these standards, aside from the usual standards applicable to employees
after they achieve permanent status. Under the terms of the Labor Code, these standards should be
made known to him at the time of his engagement as a probationary employee. Of critical importance in
invoking a failure to meet the probationary standards, is that the [employer] should show – as a matter
of due process – how these standards have been applied. This is effectively the second notice in a
dismissal situation that the law requires as a due process guarantee supporting the security of tenure
provision, and is in furtherance, too, of the basic rule in employee dismissal that the employer carries the
burden of justifying a dismissal. These rules ensure compliance with the limited security of tenure
guarantee the law extends to probationary employees. 11

14. In dismissing probationary employees on the ground of his failure to qualify in accordance with
the standards of the employer, there is no need for a notice and hearing. The employer, however, must
still observe due process of law in the form of: 1) informing the employee of the reasonable standards
expected of him during his probationary period at the time of his engagement; and 2) serving the
employee with a written notice within a reasonable time from the effective date of termination. By the very
nature of a probationary employment, the employee needs to know 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 lies. Likewise, probationary employees are entitled to
know the reason for their failure to qualify as regular employees. 12

PROBATIONARY EMPLOYMENT OF TEACHERS:

1. Cases dealing with employment on probationary status of teaching personnel are not governed
solely by the Labor Code as the law is supplemented, with respect to the period of probation, by special
rules found in the Manual of Regulations for Private Schools. With regard to the probationary period,
Section 92 of the 1992 Manual provides:

“Section 92. Probationary Period. – Subject in all instances to compliance with the
Department and school requirements, the probationary period for academic personnel
8
Aliling vs. Feliciano, et al. (G.R. No. 185829, 25 April 2012).
9
Mariwasa Manufacturing, Inc. and Dazo vs. Leogardo Jr. and other (G.R. No. 74246, 26 January 1989).
10
Ibid.
11
Tamson’s Enterprises, Inc. et al. vs. Court of Appeals and Sy (G.R. No. 192881, 16 November 2011).
12
Philippine National Oil Company-Energy Development Corporation, et al. vs. Buenviaje (G.R. No. 183200-01, 29
June 2016).
3
 shall not be more than three (3) consecutive years of satisfactory service for those in the
elementary and secondary levels, six (6) consecutive regular semesters of satisfactory
service for those in the tertiary level, and nine (9) consecutive trimesters of satisfactory
service for those in the tertiary level where collegiate courses are offered on a trimester
basis.”

In this case, petitioners’ teachers who were on probationary employment were made to enter into a
contract effective for one school year. Thereafter, it may be renewed for another school year, and the
probationary employment continues. At the end of the second fixed period of probationary employment,
the contract may again be renewed for the last time. Such employment for fixed terms during the
teachers’ probationary period is an accepted practice in the teaching profession. 13

2. A common practice in schools is for the employer and the teacher to enter into a contract
effective for one school year. At the end of the school year, the employer has the option not to renew the
contract, particularly considering the teacher’s performance. If the contract is not renewed, the
employment relationship terminates. If the contract is renewed, usually for another school year, the
probationary employment continues. Again, at the end of that period, the parties may opt to renew or not
to renew the contract. If renewed, this second renewal of the contract for another school year would then
be the last year – since it would be the third school year – of probationary employment. At the end of this
third year, the employer may now decide whether to extend a permanent appointment to the employee,
primarily on the basis of the employee having met the reasonable standards of competence and efficiency
set by the employer. For the entire duration of this three-year period, the teacher remains under
probation. Upon the expiration of his contract of employment, being simply on probation, he cannot
automatically claim security of tenure and compel the employer to renew his employment contract. It is
when the yearly contract is renewed for the third time that Section 93 of the Manual becomes operative,
and the teacher then is entitled to regular or permanent employment status. Such employment for fixed
terms during the teachers’ probationary period is an accepted practice in the teaching profession. 14

3. However, this scheme "of fixed-term contract is a system that operates during the probationary
period and for this reason is subject to Article 281 of the Labor Code," which provides:

“x x x. 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.”

Unless this reconciliation is made, the requirements of Article 281 on probationary status would be fully
negated as the school may freely choose not to renew contracts simply because their terms have expired.
This will have an unsettling effect in the equilibrium vis-a-vis the relations between labor and management
that the Constitution and Labor Code have worked hard to establish. 15

4. That teachers on probationary employment also enjoy the protection afforded by Article 281 of
the Labor Code is supported by Section 93 of the 1992 Manual which provides:

“Sec. 93. Regular or Permanent Status. - Those who have served the probationary period
shall be made regular or permanent. Full-time teachers who have satisfactorily completed
their probationary period shall be considered regular or permanent.”

The above provision clearly provides that full-time teachers become regular or permanent employees
once they have satisfactorily completed the probationary period of three school years. The use of the
term satisfactorily necessarily connotes the requirement for schools to set reasonable standards to be
followed by teachers on probationary employment. For how else can one determine if probationary
teachers have satisfactorily completed the probationary period if standards therefor are not provided? 16

5. Mere rendition of service for three consecutive years does not automatically ripen into a
permanent appointment. It is also necessary that the employee be a full-time teacher, and that the
services he rendered are satisfactory. An example given of a fixed-term contract specifically used for the
fixed term it offers is a replacement teacher or a reliever contracted for a period of one year to
temporarily take the place of a permanent teacher who is on leave. The expiration of the reliever’s fixed-
term contract does not have probationary status implications as he or she was never employed on
probationary basis. This is because his or her employment is for a specific purpose with particular focus
13
Colegio del Santisimo Rosario and Mofada vs. Rojo (G.R. No. 170388, 4 September 2013).
14
Ibid.
15
Ibid.
16
Ibid.
4
on the term. There exists an intent to end his or her employment with the school upon expiration of this
term.17

6. However, for teachers on probationary employment, in which case a fixed term contract is not
specifically used for the fixed term it offers, it is incumbent upon the school to have not only set
reasonable standards to be followed by said teachers in determining qualification for regular employment,
the same must have also been communicated to the teachers at the start of the probationary period, or at
the very least, at the start of the period when they were to be applied. These terms, in addition to those
expressly provided by the Labor Code, would serve as the just cause for the termination of the
probationary contract. The specific details of this finding of just cause must be communicated to the
affected teachers as a matter of due process. Corollarily, should the teachers not have been apprised of
such reasonable standards at the time specified above, they shall be deemed regular employees. 18

7. DOLE-DECS-CHED-TESDA Order No. 01, series of 1996 ("Guidelines on Status of Employment

of Teachers and of Academic Personnel in Private Educational Institutions"):

“2. Subject in all instances to compliance with the concerned agency and school
requirements, the probationary period for teaching or academic personnel shall not be
more than three (3) consecutive school years of satisfactory service for those in the
elementary and secondary levels; six (6) consecutive regular semesters of satisfactory
service for those in the tertiary and graduate levels, and nine (9) consecutive trimesters
of satisfactory service for those in the tertiary level where collegiate courses are offered
on a trimester basis.

Unless otherwise provided by contract, school academic personnel who are under
probationary employment cannot be dismissed during the applicable probationary period,
unless dismissal is compelled by a just cause or causes.

3. Teachers or academic personnel who have served the probationary period as

provided for in the immediately preceding paragraph shall be made regular or permanent
if allowed to work after such probationary period. The educational institution, however,
may shorten the probationary period after taking into account the qualifications and
performance of the probationary teachers and academic personnel.

Full-time teaching or academic personnel are those meeting all the following requirements:

3.1. Who possess at least the minimum academic qualifications

prescribed by the Department of Education, Culture and Sports for
Basic Education, the Commission on Higher Education for Tertiary
Education, and the Technical Education and Skills Development
Authority for Technical and Vocational Education under their
respective Manual of Regulations governing said personnel;

3.2 Who are paid monthly or hourly, based on the normal or regular
teaching loads as provided for in the policies, rules and standards
of the agency concerned;

3.3 Whose regular working day of not more than eight (8) hours a day
is devoted to the school;

3.4 Who have no other remunerative occupation elsewhere requiring

regular hours of work that will conflict with the working hours in the
school; and

3.5 Who are not teaching full-time in any other educational institution.

All teaching or academic personnel who do not meet the foregoing qualifications are
considered part time.

4. Part-time teaching or academic personnel cannot acquire regular or permanent

employment status.

17
Ibid.
18
Ibid.
5
 5. Teaching or academic personnel who do not meet the minimum academic
qualifications shall not acquire tenure or regular status. The school may terminate their
services when a qualified teacher becomes available.”

Additional reference:

Universidad de Sta. Isabel vs. Sambajon Jr. (G.R. Nos. 196280 & 196286, 2 April 2014).