Dear Atty. Vlad,

My son James was hired as a probationary employee in a BPO Company. He has been working there for only three months but on one occasion, his supervisor 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 Final Evaluation. Can his supervisor tell him that? I hope you can help my son.

Francis

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Dear Francis,

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 skills, competence and attitude to determine if he has the qualification to meet the reasonable standards for permanent employment. In this regard, your son’s supervisor was correct in telling him to improve on his performance. Your son should even thank his supervisor. Other supervisors would just tell your son to pack his things since he is already dismissed from employment for failing to pass as a probationary employee. In addition, your son should find ways and means on how to improve on his performance.

I hope that I was able to help you and your son based on the facts you shared to me.

Atty. Vlad del Rosario