Probationary employee

August 12, 2022

Dear Atty. Vlad,

My son was hired as a probationary employee in an IT Company. He has been working there for only four months and his immediate superior told him that he has to improve on his performance. If he does not improve on his performance, he may receive a failing rating in his probationary employment. Can his immediate superior tell him that? Please give me advise.

Carol

***

Dear Carol,

The right of an employer includes the right to determine whether or not a probationary employee is fit to become a regular employee. If the probationary employee fails to pass the probationary phase of his employment, he cannot claim that the termination of his employment is illegal.

In the case of Pilar Espina, et al. vs Court of Appeals, et al., G.R. 164582, 28 March 2007, the Supreme Court stated:

“It must be noted that petitioners were terminated prior to the expiration of their probationary contracts on 3 July 2001. As probationary employees, they enjoyed only temporary employment status. In general terms, this meant that they were terminable anytime, permanent employment not having been attained in the meantime. The employer could well decide if he no longer needed the probationary’s service or his performance fell short of expectations, as a probationary employee is one who, for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee to determine if he has the qualification to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative rights of both the employer and the employee in dealing with each other during said period. Thus, as long as the termination was made before the expiration of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship. A contrary interpretation would defeat the clear meaning of the term “probationary.”

As a probationary employee, your son was under observation and evaluation to determine whether or not he is qualified to pass as a regular employee. During the probationary period, his employer is given the opportunity to observe his skill, competence and attitude to determine if he has the qualification to meet the reasonable standards for permanent employment. As such, your son’s immediate superior was correct in advising him to improve on his performance. Not all superiors are the same. Some would just advise your son that he is already dismissed from employment for failing as a probationary employee. Your son should even be grateful because he was still given an opportunity to improve his performance and was not dismissed outright.

I hope that I was able to answer your query based on the facts you shared to me.

Atty. Vlad del Rosario


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