Termination of Probationary Employment (1)

Chronic Tardiness; Reasonable Standards for Regularization; No Notice and Hearing Required for Termination

Mylene was employed as a trainee-teller by a bank under a six-month probationary employment contract. She was almost always late, so the bank sent her a memorandum directing her to explain why she should not be subjected to disciplinary action for “chronic tardines” (8 times in one month). Another memorandum was sent to her directing her to explain why she should not be suspended for “chronic tardiness” on 13 occasions in one month. In her written explanations to both memoranda, she practically admitted the charges against her. She was suspended for 3 days without pay, but before the 3 days were over the suspension was lifted and her employment was instead terminated. This happened before the six-month probationary period was over. She filed a case for illegal dismissal against the bank.

The case eventually reached the Supreme Court. The Supreme Court identified the “point of contention” as follows: Whether her employment status ripened into a regular one.

The Supreme Court decided the issue in the negative. “At the time of her engagement and as mandated by law, petitioner was informed in writing of the standards necessary to qualify her as a regular employee. Her appointment letter reads:

xxxx

Possible extension of this contract will depend on the job requirements of the Bank and your overall performance. Performance review will be conducted before possible renewal can take effect. The Bank reserves the right to immediately terminate this contract in the event of a below satisfactory performance, serious disregard of company rules and policies and other reasons critical to its interests.”

The Supreme Court then proceeded to enumerate the grounds on the basis of which a probationary employee may be terminated:

“A probationary employee, like a regular employee, enjoys security of tenure. However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 281 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with 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: (1) a just or (2) an authorized cause and (3) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.”

But the appointment letter did not specify “punctuality” as one of reasonable standards prescribed by the employer. Nevertheless, said the Supreme Court in effect, “it is but common sense that she must abide by the work hours imposed by the bank.”

“Punctuality is a reasonable standard imposed on every employee, whether in government or private sector. As a matter of fact, habitual tardiness is a serious offense that may very well constitute gross or habitual neglect of duty, a just cause to dismiss a regular employee. Assuming that petitioner was not apprised of the standards concomitant to her job, it is but common sense that she must abide by the work hours imposed by the bank. As we have aptly stated in Aberdeen Court, Inc. vs. Agustin, Jr., the rule on reasonable standards made known to the employee prior to engagement should not be used to exculpate a probationary 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.”

Earlier, the Labor Arbiter ruled that Mylene was dismissed without due process because “she was not afforded notice in writing informing her of what respondent (the Bank) would like to bring out to her for the latter to answer in writing.” The Supreme Court held otherwise and cited its ruling in Philippine Daily Inquirer, Inc. v. Magtibay, Jr.:

“Unlike under the first ground for the valid termination of probationary employment which is for just cause, the second ground failure to qualify in accordance with the standards prescribed by employer does not require notice and hearing. Due process of law for this second group consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment. By the very nature of a probationary employment, the employee knows from the very start that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors. It is in apprising him of the standards against which his performance shall be continuously assessed where due process regarding the second ground lies, and not in notice and hearing as in the case of the first ground.”

The Supreme Court ended its Decision by stating, “If the termination is for cause, it may be done anytime during the probation; the employer does not have to wait until the probation period is over.”

(Reference: Mylene Carvajal, vs. Luzon Development Bank and/or Oscar Z. Ramirez, G.R. No. 186169, August 1, 2012)

Author: attycortes

Filipino lawyer, preacher, composer.

28 thoughts on “Termination of Probationary Employment (1)”

  1. HI. Just want to ask in relation to the topic. What if you are on probationary status and was on sick leave for 2months as required by the doctor, on the 6th week your supervisor advised you to render resignation since he will not regularized you on your 6th month. Should you render resignation or should the supervisor just terminate your contract instead? Please help.

    1. There seems to be no Philippine jurisprudence regarding employees who get sick during their probationary period. For all it is worth, I opine that an employee’s being sick during the probationary period may be taken into consideration by management to determine whether or not such employee is physically fit enough to handle the duties of a regular employee.

  2. What if the employee under probationary status is not appraise of his/her performance and as a result, the employee has no knowledge whether he/she is meeting the standards of the company, does company decision to terminate the employee under probation stands on legal ground?

    1. “Unlike under the first ground for the valid termination of probationary employment which is for just cause, the second ground failure to qualify in accordance with the standards prescribed by employer does not require notice and hearing. Due process of law for this second ground consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment. By the very nature of a probationary employment, the employee knows from the very start that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors. It is in apprising him of the standards against which his performance shall be continuously assessed where due process regarding the second ground lies, and not in notice and hearing as in the case of the first ground.”

  3. Good day. hope you could enlighten me on this. i was on my probationary period and on my 3rd month i was terminated without due notice. i didn’t have any violations committed during that span of 4 months and their reason was i didn’t meet their standards in which i believe and my co-workers believe that i did meet or even exceed the standards that they had given me and they showed me a paper showing me their comments about my work standard and everything that is written on it is very unreasonable and very shallow and if given the chance i can answer everything of it . but i didn’t have the chance to ,for the termination paper was already served unto me is there anything that i can do about it? . hoping for your enlightenment sir. Thanks and God bless.

    1. An employee who believes he or she has met the company’s standards for regularization during the probationary period can raise this issue before the NLRC in the event the company decides no longer to continue employing him/her for alleged failure to meet the company’s standards for regularization.

      1. Sir One more thing am i entitled for a 13th month pay? i started working for the company last may 31 and i was terminated just last tuesday october 7. thanks sir

  4. Hi . I was given a 15days suspension from giving access to unathorized employee. I gave him access so that he could transact wth the customer easily and give senior discount. Will it affect my probationary status? Thank you so much.

  5. Every now and then I get a number of questions especially on this post, some of them quite lengthy, almost all of them about the questioner’s dismissal, and asking for my opinion as to the legality thereof. I am sorry but I really don’t have time to answer all these questions. Some of these questions are merely a variation or repetition of questions already asked by others to which I have already posted my opinion/answer. Others involve background details which I suspect may be one-sided or incomplete so as to favor the questioner, in which case the “favorable” answer he/she wants is inevitable. Also many of these questions are directly and clearly answered by the articles I’ve posted on this blog and all that is needed is for the questioner to read them and draw out the necessary conclusions. But I guess what many questioners want is “assurance”. At any rate, I think it is best to consult a “live” lawyer and talk to him/her face to face about your problem.

  6. After a six month contractual employment and after 1 day after its expiration, can an employee continue as a 6 months probationary employee without violating any labor law?
    contractual employment ended Feb. 26, 2014, can an employee be made to sign a probationary 6-months contract with an effective date of Feb. 27, 2014?

  7. If you believe that you were able to meet the company’s standards during your probationary period and should have been regularized then you might want to raise that issue before the NLRC.

  8. Hi,
    I just would like to ask if the company can end my contract anytime they want since i am not yet a regular employee.I started working with a project based account last year from january 2013 untik may 2013.after almost 2mos of waiting the same company called and then offered another project based account from june 2013 until september 2013.but before my 2nd project based contract end i was put on a lateral transfer to another account.on the moa that i signed there is no date on until when would be the end of my contract.the exaplanation of my team lead was since it is a new contract even if it is a lateral transfer we will start from scratch and then would be regularized by march this year.this february 2014 they want me to sign another project based account which would last until may 2014 only and that my regularization will be move on july since it is a new account.can i refuse to sign the new project based contract?because since it was a lateral transfer i assumed that i am already a regular employee because i’ve been working with them for more than 6mos already.im worried that if i signed the new contract,they have evry right to terminate my employment by may and no chance to be a regular employee at all.

    1. Generally speaking, a project employee has security of tenure for the duration of the project. The project must have a beginning and ending date, and that must be reflected in the employee’s project employment contract. A lateral transfer to a new job that does not specify a beginning or ending date and involves work that is essential and necessary to the business may be a ground for assuming that one is a regular employee and no longer a project employee. Also, it is an employee’s prerogative whether or not to sign a new project based contract.

  9. Hi! I just would like know if I can file a labor case against my employer for terminating me before my 180 days of probationary period ends. There is no prior notice given to me about the termination of my contract. They said that I am not qualified for regularization due to not meeting the performance for my position. However, I am not given any details or close observation or feedback every month with my performance, so I really don’t have any idea as to what my standing is. They couldn’t even show me my monthly scores that would best show that I failed and if I failed I should be given any notice so I could perform better the next month. When they handed me the termination paper, its effective date was right after the next day and it was already signed by everyone in the management and it’s just my signature that they need.All throughout my stay in the company I was never served any disciplinary action or papers that would let me acknowledge my failure to comply on company’s standards. So I just wonder if I have strong reason to file a case against them. Thanks!

    1. Hi Venus,

      All I can say is if you believe you qualified for regularization then go ahead and file. The prior notice issue however needs to be clarified. As the above-mentioned case points out the only prior notice required in termination for failure to qualify is notice of the reasonable standards a probationary employee has to comply with. These have to be made known to the employee at the beginning of the engagement. But as I said if you believe you’ve complied with the standards despite what management says, you have a perfect right to file a case.

  10. on 4th month of probationary period, was then suspended for 1 month then after a month no result was shown to employee. 5 days after, termination of probationary period was served to employee. is this right? no performance evaluation was served and no result on the allegation was shown to employee.

    1. “Unlike under the first ground for the valid termination of probationary employment which is for just cause, the second ground failure to qualify in accordance with the standards prescribed by employer does not require notice and hearing. Due process of law for this second ground consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment. By the very nature of a probationary employment, the employee knows from the very start that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors. It is in apprising him of the standards against which his performance shall be continuously assessed where due process regarding the second ground lies, and not in notice and hearing as in the case of the first ground.”

      Also, in the Carvajal case referred to above, it is interesting that in the letter of appointment, respondents reserved the right to “immediately terminate this contract in the event of a below satisfactory performance, serious disregard of company rules and policies and other reasons critical to its interests.”

  11. Hi, am not an HR person but would like to know if its possible to put a regular employee on probation period? If so, for how long and on what grounds. Thanks.

    1. I don’t think that’s possible. The fact that he or she is already a regular employee means that he or she has successfully passed the probationary stage. For him or her to be reverted to probationary status would be illogical.

    1. None that I’m aware of, and I don’t think a 30 day prior notice is required. The conduct that might disqualify one from regularization might manifest itself only during the last 30 days of the probationary period.

  12. I was hired last july 10,2013 but I was given a contract after 2 months.my contract will expire on January 10, 2013. now our hr manager would like to terminate my contract because of alleged dishonesty. My certificate ef employment from my previous employer, according to them is not considered official document since we have the same co -workers who have COE who have different format of COE. They are accusing me that I have submitted an altered document which is not true. December 21, they gave a showcause memo. What will I do, my contract will expire om Janaury 10, 2013. How can I rebut the accusations

    1. You could try submitting proof of the authenticity of your document. Unfortunately, once your contract expires (which is just a couple of weeks away – Jan. 10, 2014 and not 2013 I presume) management can choose not to renew it.

  13. Sir, I work for a bus. whos system is not fully organized. I am now fixing things up. How can I terminate a 5mo old emlployee for not meeting the job expectation? There is no contract involved during the hiring process up to now. Will there be a problem? TIA

    1. Hi Dhemsky,

      I am assuming that you consider this employee to be probationary, in which case the standards under which he will qualify as a regular employee should have been made known to him at the beginning of his engagement. If he fails to meet these standards you can simply notify him in writing that you will no longer continue to employ him after the lapse of the 6 months probationary period for failure to qualify as a regular employee. Of course, you should be ready to show proof that he indeed failed to qualify.

      attycortes

Comments are closed.