Can Probationary Employment Go Beyond 6 Months?

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This article talks about the instances wherein the probationary employment period can go beyond 6 months, namely: 1) in apprenticeship agreements 2) employment is covered by special laws 3) practice is established by company policy or required by the nature of the work 4) to give the employee another chance to improve.

What is probationary employment?

Article 296 (formerly Art. 281) of the Labor Code of the Philippines, as amended, states:

“Article 296. 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.”

A probationary employment is sort of a “trial-basis” employment because the employer is allowed to see for himself whether the employee is suited for employment in the business. In the case of Tamson’s Enterprises, Inc. vs. Court of Appeals, G.R. No. 192881, 16 November 2011], the Supreme Court had the occasion to discuss the nature of probationary employment as follows:

“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. 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.”

It has been established in case law that probationary employees are still entitled to the constitutional protection of security of tenure. This means they may only be terminated for 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. NLRC, G.R. No. 149859, 09 June 2004]. This constitutional protection, however, ends upon the expiration of the period provided for in their probationary contract of employment. Thereafter, the parties are free to renew the contract or not [Manlimos vs. NLRC, G.R. No. 113337, 02 March 1995].

Exceptions to the Six (6) Months Probationary Period

As stated in the law, probationary employment should not exceed six (6) months.  An employee who is allowed to work after a probationary period shall be considered a regular employee.

There are however exceptions to the six (6) month period.  Such period may be go beyond six months in the following circumstances:

1. Where the work is covered by an apprenticeship agreement

2. When the employment is covered by special laws, such as teaching personnel governed by the Manual of Regulations for Private Schools [see Colegio del Santisimo Rosario vs. Rojo, G.R. No. 170388, 04 September 2013].

3.  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. [ see Buiser vs. Leogardo, G.R. No. L-63316, 31 July 1984]

4.  When the probationary employment is extended in order to give the employee a chance to improve and further his prospect to demonstrate his fitness for regular employment [see Mariwasa Manufacturing, Inc. vs. Leogardo, G.R. No. 74246, 26 January 1989]

In the fourth instance, the Supreme Court elucidated in the Mariwasa Case that the extension of the probationary employment was “an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employer’s account to compel it to keep on its payroll one who could not perform according to its work standards”.

As can be gleaned above, it is best to follow the general rule that probationary employment should not exceed six (6) months. Although there are exceptions, it is incumbent upon the employer to prove that it falls within the exception.

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