Dear Atty. Vlad,

On 30 June 2023, I was hired as a probationary employee in a BPO Company. However, on 9 December 2023, the HR manager issued me a Notice of Termination of Employment for my failure to pass the probationary phase due to poor performance.

Can my employer through its HR manager validly do this? I hope you can help me.

Marcelo

Dear Marcelo,

While your employer may validly discontinue your employment for failing to pass the terms and conditions stated in yourcontract, this may be done while you are still under probationary employment.

From what you shared with me, your employment was terminated within the 180-calendar day or on the 162nd day of the period of you probationary period of employment.

In the case of Mitsubishi Motors Philippines Corporation vs. Chrysler Philippines Labor Union and Nelson Paras, G.R. 148738, 29 June 2004, the Supreme Court explained the computing the probationary period of employment of six months, to wit:

Applying Article 13 of the Civil Code, the probationary period of six months consists of 180 days. This is in conformity with paragraph one, Article 13 of the Civil Code, which provides that the months that are not designated by their names shall be understood as consisting of 30 days each. The number of months in the probationary period, six, should then be multiplied by the number of days within a month, 30 hence, the period of 180 days. 

As clearly provided for in the last paragraph of Article 13, in computing a period, the first day shall be excluded and the last day included. Thus, the 180 days commenced on 27 May 1996, and ended on 23 November 1996. The termination letter dated 25 November 1996 was served on respondent Paras only at 3 a.m. of 26 November 1996. He was, by then, already a regular employee of the petitioner under Article 281 of the Labor Code.

When you were dismissed from your employment, it was well within the 180-calendar day period. As such, your dismissal or discontinuation of employment was valid.

I hope I was able to help you based on the facts you stated.

Atty. Vlad del Rosario