Extension of Probationary Employment Period
Article 296 [formerly 281] of the Labor Code provides that 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. [Umali vs. Hobbywings Solutions, Inc., G.R. No. 221356, March 14, 2018]
In Dusit Hotel vs. Gatbonton, the Supreme Court (SC) reiterated that it is an elementary rule in the law on labor relations that a probationary employee engaged to work beyond the probationary period of six months, as provided under Article 281 [now Art. 296] of the Labor Code, or for any length of time set forth by the employer (in this case, three months), shall be considered a regular employee. This is clear in the last sentence of Article 281. Any circumvention of this provision would put to naught the State’s avowed protection for labor.
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. [Buiser vs. Leogardo, G.R. No. L-63316 July 31, 1984]
In one case, the very contracts of employment signed and acquiesced to by the employees specifically
indicate that “the company hereby employs the employee as telephone sales representative on a probationary status for a period of eighteen (18) months, i.e. from May 1980 to October 1981, inclusive.”
In the Buiser case, the SC held that this stipulation is not contrary to law, morals and public policy. It then held and ruled that the probationary employment of employees in said case set to eighteen (18) months is legal and valid.
Below is a sample clause extending probationary employment. Likewise, here is a complete template on probationary employment.
“EXTENSION OF PROBATIONARY EMPLOYMENT
During probationary employment, the PROBATIONARY EMPLOYEE shall undergo monthly evaluation of performance based on reasonable standards made known at the time of engagement;
In the event that the PROBATIONARY EMPLOYEE fails to meet the standards mentioned, in any of the month xxx failure to qualify;
The PROBATIONARY EMPLOYEE agrees that the EMPLOYER may extend xxx;”
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.
The following are sample probationary employment contracts which can help HR practitioners, business owners, and managers craft with ease:
