Dear PAO,
I was hired as a probationary employee, but I failed to meet the qualifications required for regularization within the six-month probationary period. I asked my employer to give me another chance to prove that I am capable of performing my job. My employer agreed, and we executed a written agreement giving me an additional three months to improve my performance and meet the required qualifications. However, my employer eventually terminated my employment because according to him, I still failed to meet the standards expected and did not show any improvement even after the three-month extension. I now want to file a case for illegal dismissal because I am already a regular employee since my employer allowed me to work after the lapse of the six-month probationary period.
Miguel
Dear Miguel,
Article 296 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.” (Emphasis supplied)
In relation to this, it is important to refer to the pronouncement of the Honorable Supreme Court in Mariwasa Manufacturing, Inc. and Angel T. Dazo vs. Hon. Vicente Leogardo, Jr., and Joaquin A. Dequila, G.R. No. 74246, January 26, 1989, penned by Honorable Chief Justice Andres D. Narvasa, explaining that “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.” Moreover, it was held that voluntarily agreeing to an extension of the probationary period waives any benefit relating to the completion of the probationary period if the employee still failed to meet the standard during the period of extension.
As has been laid down, you may be terminated for failure to meet the standards and qualifications required by your employer for regular employment. The mere lapse of the six-month probationary period does not necessarily result in your regularization since you requested additional time to prove your fitness for the position and voluntarily agreed to an extension.
An extension of the probationary period beyond the six-month statutory period may be viewed as an act of liberality on the part of the employer, giving an employee another opportunity to improve one’s performance and meet the standards required for regular employment. Since you voluntarily accepted such extension and, despite the additional opportunity, still failed to satisfy your employer’s standards, your employer may validly terminate your employment on the ground of failure to qualify for regularization. You cannot reasonably invoke the expiration of the original six-month period to claim regular employment status and illegal dismissal.
We hope that we were able to answer your queries. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
