Tasks of a Probationary Similar to that of a Consultant may Negate Valid Probationary Status
Probationary employment is allowed under the Labor Code, as amended.
Thus, under Art. 296, 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.
Section 6 (d) of the Implementing Rules of Book VI, Rule I of the Labor Code provides that 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 rules governing probationary employment require that 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. [Agustin vs. Alphaland Corporation, G.R. No. 218282, September 09, 2020]
In a case where the individual was allegedly hired as a consultant and thereafter as probationary doing the same tasks, the Supreme Court (SC) held that the probationary period set in the contract of employment is therefore purposeless. In no case was the employee hired on a probationary status by. As of the alleged probationary date, the employee already became part of the Corporation as a regular employee of the company without a fixed term of employment.
The employee served as a consultant prior to being hired as an Executive Chef allegedly on a probationary status. The Consultancy Engagement Offer provides that Agustin served as a consultant. As a consultant, the employee was responsible for setting up the kitchen, choosing the equipment, laying out the job description for each kitchen staff, and the preparation of menus for all cuisines that the Club will offer.
Following the completion of the employee’s tasks as the Club’s consultant, the company proceeded to search for an Executive Chef to head the Club’s restaurants. Since the opening of the Club was fast approaching, the employer hired the employee as the Executive Chef for all the Club’s restaurants. It claims that since it still had to assess and determine whether the employee’s skills as Executive Chef are at par with what the Club requires, it hired her as a probationary employee.
The SC found such circumstance contrary to the ordinary course of business. Mainly, consultants are hired to provide their expert advice and opinion on what needs to be done. Records show that Agustin has been in the culinary industry for almost 19 years already, won several contests, and has served well-known establishments in the Philippines and abroad.
When the company hired her as Consultant, without doubt, it was fully aware of his qualifications and skills to set up the “kitchen” at the Balesin Island Club. This Court cannot agree that she was hired as Executive Chef on probationary basis since the tasks for which she was engaged as a Consultant were the
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very same tasks he had to do as an Executive Chef.
In both engagements, she was tasked to take over the kitchen planning.
The attendant circumstances in the instant case show that the issue of Agustin’s alleged failure to meet the standards set by Alphaland as a ground for terminating employment was not proven with substantial evidence. The NLRC correctly observed that “the record is bereft of any persuasive showing that such dissatisfaction is real and in good faith, not feigned. How the assessment was made, who made it, and the result of such assessment are not known.
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