Probationary employment
An employee who has passed the minimum standards set by none other than employer itself is rightfully entitled to be gainfully employed.
Published in Daily Tribune on August 20, 2021
by: Migmar Bernped S. Francisco
It is crucial for employers to fill a job vacancy with someone who possesses the required skills and qualifications for the employment position. Apart from vetting their prospective employees through their resumés and by conducting job interviews, the prudent employer deems it a necessity to observe a prospective employee’s performance in the actual work environment. Accordingly, most employers first subject newly-hired employees to probationary employment.
Jurisprudence provides us with a basic definition of what a probationary employee is. A probationary employee, according to the Supreme Court, “is one who is placed on trial by an employer, during which the latter determines whether or not the former is qualified for permanent employment.” The probationary period, therefore, is an opportunity for the employer to determine the fitness and competence of the probationary employee before he or she is granted permanent employment. On the other hand, it is the chance for the probationary employee to prove that he or she has the skills and the qualifications to meet the reasonable standards set by the employer.
Under the Labor Code, probationary employment shall not exceed six months from the date the employee commenced working. A number of Supreme Court cases has, however, recognized a probationary period beyond six months and even an extension thereof provided that it has been mutually agreed by both the employer and probationary employee. The Supreme Court clarified that probationary employment cannot be ad infinitum, however.
An employer is prohibited from imposing an indefinite period of probationary employment to determine the fitness of a probationary employee. In addition, it must be stressed that an employee who is allowed to work beyond the probationary period shall be considered a regular employee.
Much like a permanent employee, a probationary employee enjoys security of tenure. Accordingly, a probationary employee may not be dismissed on grounds other than for just and authorized causes provided by law and only after observance due process. In addition to the just and authorized causes for termination of employment, Article 296 of the Labor Code provides that a probationary employee may also be dismissed if he or she fails to qualify as a regular employee in accordance with reasonable standards set by the employer.
Unlike in just causes for termination of employment, notice and hearing are not required to validly terminate employment on the ground of failure to qualify as a regular employee. What is required is that the employer must communicate the reasonable standards or criteria to the probationary employee which should be made prior to commencement of probationary employment. Thus, when there is failure on the part of the employer to apprise a probationary employee of these standards at the time of his or her engagement, the latter’s employment may not be terminated for failure to satisfy such standards. This rule is subject to several exceptions determined by the Supreme Court such as when the job is self-descriptive in nature, as in the case of maids, cooks, drivers or messengers, or when the employee acts in a manner contrary to common sense in regard to which there is no need to spell out the standards or qualifications to be met.
In addition, the written notice that a probationary employee has failed to meet the standards after due evaluation must be served within a reasonable time from the effective date of termination.
While it is within the employer’s right to choose whom to hire and whom to dismiss, the clear mandate of the law must be always be realized without fail. Probationary employment, while recognized under the Labor Code, must not be used to frustrate the law and deprive a qualified employee of regular employment and its corresponding benefits. In one case, the Supreme Court held that the employer’s system of double probation was a transparent scheme to circumvent the law and make it easier for it to dismiss its employees even after they shall have passed probation.
After all, an employee who has passed the minimum standards set by none other than the employer itself is rightfully entitled to be gainfully employed.
