Termination of Supposedly Probationary Employee Who Was Not Informed Of Standards To Qualify As Regular Employee At Time Of Engagement

The pertinent law governing probationary employee is Article 296 of the Labor Code which provides as follows:

Art. 296.  Probationary employment. — Probationary employment shall not exceed six 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 in 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.

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. [Robinsons Galleria/Robinsons Supermarket Corporation vs. Ranchez, G.R. No. 177937, January 19, 2011, 640 SCRA 142.]

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. [Magis Young Achievers’ Learning Center vs. Manalo, G.R. No. 178835, February 13, 2009, 579 SCRA 421, 431-432]

A probationary employee, like a regular employee, enjoys security of tenure.  As a probationary employee, employment status was only temporary.  Although a probationary or temporary employee with a limited tenure, she was still entitled to a security of tenure.

It is settled that even if probationary employees do not enjoy permanent status, they are accorded the constitutional protection of security of tenure. This means they may only be terminated for a just cause or when they otherwise fail to qualify as regular employees in accordance with reasonable standards made known to them by the employer at the time of their engagement.[Alcira vs. National Labor Relations Commission, G.R. No. 149859, June 9, 2004, 431 SCRA 508,]  Consistently, in Mercado v. AMA Computer College-Paranaque City, Inc.,[ G.R. No. 183572, April 13, 2010, 618 SCRA 218.] the Supreme Court clearly stressed that:

“Labor, for its part, 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 the employees on probationary status at the start of their probationary period, or xxx during which the probationary standards are to be applied. 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

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guarantee the law extends to probationary employees.”

Hence, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 296 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with the 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: (a) a just or (b) an authorized cause; and (c) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.

Employer’s failure to specify the reasonable standards by which employee’s alleged poor performance was evaluated as well as to prove that such standards were made known to him at the start of his employment, makes the latter a regular employee. In other words, because of this omission on the part of employer, employee is deemed to have been hired from day one as a regular employee.

To justify the dismissal of an employee, the employer must, as a rule, prove that the dismissal was for a just cause and that the employee was afforded due process prior to dismissal.

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