Termination Rules for Probationary Employee as to Procedural Due ProcessAtty Elvin
- it must be exercised in accordance with the specific requirements of the contract;
- the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and
- there must be no unlawful discrimination in the dismissal.
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 him a regular employee. In other words, because of this omission on the part of employer, the employee is deemed to have been hired from day one as regular employee.
While it is now settled that failure of the employer to accord procedural due process in the dismissal of employees for just cause makes him liable for indemnity in the form of nominal damages, the rule is not so settled when it comes to probationary employees for failure to qualify. To recall, probationary employees may be dismissed for just cause, authorized cause and failure to qualify based on the reasonable standards made known to them at the time of engagement.
In the case of Abbott Laboratories Philippines, et. al., the dismissal proceeded from failure to comply with the standards required for her regularization. According to the Court it was undeniable that the dismissal process was, in effect, initiated by an act imputable to the employee, akin to dismissals due to just causes under Article 297 of the Labor Code, as amended.
Therefore, the Court deems it appropriate to fix the amount of nominal damages at the amount of P30,000.00, consistent with its rulings in both Agabon and Jaka.
In dealing with probationary employee for failure to qualify two requirements must be satisfied:
- The employer must communicate the regularization standards to the probationary employee; and
- The employer must make such communication at the time of the probationary employee’s engagement.
If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee.
The basis of this doctrine is Section 6 (3), Rule I, Book VI of the Implementing Rules of the Labor Code stating that if the employer fails to inform the probationary employee of the reasonable standards upon which the regularization would be based on at the time of the engagement, then the said employee shall be deemed a regular employee, viz.: “(d) In all cases of probationary employment, 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.”
On the procedural aspect of dismissal, a different rule is applied when terminating a probationary employee; the usual two-notice rule does not govern. Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code states that 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 reason- able time from the effective date of termination.