Dear PAO,
In August 2023, I applied for the position of Senior Financial Analyst in a multi-national corporation in Makati City and was fortunate to have been hired on the date of the interview. However, after six (6) months of working, I received a letter of termination from the Human Resources Department stating that my probationary employment has ceased due to unsatisfactory performance. I was confused as I was not aware that I had been engaged as a probationary employee. Neither had I signed any employment contract with the company. When I verified my employment status with the HR, they claimed that all employees undergo a probationary period before they are regularized. Is it true that an employee should be presumed to be on probation once hired?
Armee
Dear Armee,
No. Not all employees undergo probationary employment under Philippine labor law. In fact, an employer cannot simply assume that every new employee is probationary, as probationary employment must be arranged and should comply with the applicable standards prescribed under the Labor Code, to wit:“Article 296 [281]. Probationary employment. 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.”From the foregoing, to qualify under probationary employment, it is imperative that an employee be given the opportunity to know the company standards against which his or her performance will be assessed to determine whether he or she qualifies for regular employment. Thus, it is mandatory for the employer to inform the employee of the specific criteria and the standards expected of him/her from the start of the engagement. If the employee was neither informed of the company standards nor oriented regarding the company policy on regularization, and was likewise deprived of a proper work evaluation to assess his/her performance; then, the employee is presumed to be a regular employee from day one. This is consistent with the ruling of the Supreme Court in Clarion Printing House, Inc., et al. vs. NLRC (G.R. No. 148372, 27 June 2005, Ponente: Honorable Associate Justice Conchita Carpio-Morales), which held:“This Court’s finding that Miclat’s termination was justified notwithstanding, since at the time she was hired on probationary basis she was not informed of the standards that would qualify her as a regular employee, under Section 6, Rule I of the Implementing Rules of Book VI of the Labor Code which reads:
SEC. 6. Probationary employment. 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.
“Probationary employment shall be governed by the following rules:xxx
(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” (Emphasis and underscoring supplied),
She was deemed to have been hired from day one as a regular employee.”Hence, applying this to your instant case, you are considered a regular employee from the first day of your employment as no reasonable standards and criteria for regularization were laid down prior to your engagement as Senior Financial Analyst. 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
