As a background, a probationary employee 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. [See Canadian Opportunities Unlimited, Inc. v. Dalangin, Jr., 681 Phil. 21, 33 (2012), citing International Catholic Migration Commission v. NLRC, 251 Phil. 560 (1989)]

By virtue of a probationary employment, an employer is given an opportunity to observe the fitness and competency of a probationary employee while at work. During the probationary period of employment, an employer has the right or is at liberty to decide who will be hired and who will be denied employment. [Moral vs. Momentum Properties Management Corporation, G.R. No. 226240, March 06, 2019.]

The essence of a probationary period of employment lies primordially in the purpose or objective of both the employer and the employee during such period. While the employer observes the fitness, propriety, and efficiency of a probationary employee, in order to ascertain whether or not such person is qualified for regularization, the latter seeks to prove to the former that he or she has the qualifications and proficiency to meet the reasonable standards for permanent employment.

A probationary employee enjoys security of tenure, although it is not on the same plane as that of a permanent employee. Other than being terminated for a just or authorized cause, a probationary employee may also be dismissed due to his or her failure to qualify in accordance with the standards of the employer made known to him or her at the time of his or her engagement.

Hence, the services of a probationary employee may be terminated for any of the following: (1) a just cause; (2) an authorized cause; and (3) when he or she fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.

The Labor Code, as amended, provides, that 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.

With respect to the termination of a probationary employee, a different procedure is applied – the usual two-notice rule does not govern. The aforesaid two-notice rule is that which is found under Article 292 (b) of the Labor Code, as amended.

If the termination is brought about by the 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.

Below is sample Notice of Termination of Probationary Employment for Failure to Qualify:
To:             JUAN DELA CRUZ
                  Probationary Clerk

From:         HR

Date:          ______ October 20____

Subject:     FAILURE TO QUALIFY

This refers to your probationary employment wherein it was mentioned at the time of your engagement that during the trial period for a maximum of 6 months, you would be periodically evaluated to determine your fitness as regular employee.

These standards are as follows:

Performance                         30%
Punctuality/Attendance          20%
Behavior                               20%
Teamwork                             20%
Initiative                               10%
TOTAL                                   100%

It was mentioned to you that any score below 85% shall be deemed as a failed rating which shall be caused for your failure to qualify.

Thus, using the above standards, the following are the results of your four-month evaluation period:

June 20___                            75%
July 20__                               81%
August 20___                        80%
September 20___                  79%

Hence, despite the chances given to you and the support system accorded, you have failed to meet the reasonable standards mentioned. In this regard, we regret to inform you that your employment is hereby being terminated effective seven (7) calendar days from service of this notice.

For your guidance.

BAGSIC S. ARETING
HR Manager

The following are sample probationary employment contracts which can help HR practitioners, business owners, and managers craft with ease:

1. Daily Paid in English
2. Monthly Paid in English
3. Daily Paid in Filipino / Tagalog

Get a complete package of probationary employment documents from employment contract, evaluation criteria, notices, etc. through the Super 5 Packet.

See also the Probationary Tabulation Metrics.

An employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. This goes without saying that the employee is sufficiently made aware of his probationary status as well as the length of time of the probation.

This is the general rule.

The exception to the foregoing is when the job is self- descriptive in nature, for instance, in the case of maids, cooks, drivers, or messengers.

Thus, in the case of Aberdeen Court, Inc. vs. Agustin, 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. In the same light, an employee’s failure to perform the duties and responsibilities which have been clearly made known to him constitutes a justifiable basis for a probationary employee’s non regularization.

Further, in the same Abbott case, the company’s procedure mandates, inter alia, that the job performance of a probationary employee should be:

1. Formally reviewed and discussed with the employee at least twice: first on the third month and second on the fifth month from the date of employment.
2. The company is also required to come up with a Performance Improvement Plan during the third month review to bridge the gap between the employee’s performance and the standards set, if any.
3. In addition, a signed copy of the performance evaluation form should be submitted to HRD as the same would serve as basis for recommending the confirmation or termination of the probationary employment.

The company failed to follow the above-stated procedure in evaluating the probationary employee.

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

There was no evidence that a signed copy of the evaluation form was submitted to the HRD. It was not even shown that such form was completed to formally assess the employee’s performance. Neither was the performance evaluation discussed with her during the third and fifth months of her employment. Nor did the company come up with the necessary Performance Improvement Plan to properly gauge the employee’s performance with the set company standards. Hence, the Court ruled that the dismissal in this case was procedurally infirm.