Dear Atty. Kathy,

I was hired as a probationary employee in January 2022 by Company A. Toward the end of my probationary employment in July 2022, my immediate superior suddenly emailed me that I was no longer required to report the following day because my probationary employment has been terminated on the ground of failure to pass the performance criteria. I checked my employment contract, but there are no performance criteria indicated. I asked my immediate superior for the basis of my failed rating, and he provided me a one-page performance evaluation form, which he signed and was approved by the Department Head. This is the first time I saw such performance evaluation form so I think it is unfair that I was dismissed based on such performance criteria. Do I have grounds to file an illegal dismissal complaint?

Quinn

Dear Quinn,

A probationary employee is one who is placed on trial by an employer, during which the employer determines whether such employee is fit for regularization.
During the period of probationary employment, the objective of the employer is to observe the fitness of the employee, while the purpose of the latter is to prove his or her qualification for permanent employment. To accomplish these goals, it is essential in probationary employment that the employer informs the employee of the reasonable standards for his regularization at the time of engagement.
An employer is deemed to have made known the regularization standards when it has exerted reasonable efforts to apprise the employee of what he or she is expected to do or accomplish during the trial period of probation. Otherwise, the probationary employee shall be considered a regular employee. The foregoing is in accordance with Section 6(d), Rule I, Book VI of the Omnibus Rules to Implement the Labor Code of the Philippines, as amended by Department Order No. 147-15, which provides: 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 not standards are made known to the employee at that time, he shall be deemed a regular employee. (Edna Luis B. Simon vs The Results Companies and Joselito Sumcad, G.R. 249351-52, 29 March 2022)

Since you were hired by Company A as a probationary employee, it was incumbent upon Company A to prove that it communicated to you the standards under which you would qualify as a regular employee. However, according to your narrative, it appears that Company A did not inform you of the performance criteria for the regularization of your employment at the time of your engagement. Therefore, you are deemed a regular employee of Company A by operation of law, whose employment cannot be terminated by a mere notice of failure to pass performance criteria. Based solely on the foregoing, you may have grounds to file an illegal dismissal complaint.