Dear Atty. Joji,

Our company hired three employees on a probationary basis, starting 2 April 2022 to 28 September 2022. On the first Monday of their work, on 4 April, they started a five-day training, where they were also given certified copies of their appointment letters, job descriptions which included the performance standards for regularization, and Code of Conduct.

In the third and fifth months of their probationary employment, the three employees had one-on-one sessions with their immediate supervisor for the performance evaluation, where they accepted the ratings given to them and did not object to any of the findings.

Unfortunately, all three employees only scored between 69 percent to 73 percent, when the passing rate is 80 percent. Their probationary employment were terminated on 12 September 2022.

We were surprised to receive a labor complaint for regularization. The three employees are now saying they are already regular employees since the company did not give them the performance standards at the time of their engagement on 1 April 2022. Are they correct?

Aaliyah

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Dear Aaliyah,

A probationary employee under Article 296 of the Labor Code is one who for a given period is being evaluated to determine if he or she is qualified for permanent employment. Probationary employees enjoy security of tenure but they do not enjoy permanency of status and may be terminated on two grounds: (a) just cause; and (b) when he or she fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.

Section 6(d), Rule I, Book VI of the Implementing Rules and Regulations of the Labor Code further provides that 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.

Ideally, employers should immediately inform the probationary employee of the standards for his or her regularization from day one. However, strict compliance thereof is not required.