Probationary woes

Dear Atty. Angela,

I am an owner of a Coffee Shop situated in General Trias, Cavite. On 15 December 2023, I hired Ms. Arleen as a probationary employee. On 15 March 2024, I terminated her employment for her failure to pass the probationary phase of her employment due to poor performance. She is claiming that she was illegally dismissed. In addition, she is also demanding for payment of her alleged overtime work. Is she correct? I hope you can assist me.

Robert

Dear Robert,

The right to determine the fitness of one’s employee for regular employment is included in the employer’s management prerogatives. Since she failed to pass the probationary phase of her employment due to poor performance, she cannot claim that her dismissal is illegal.

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

“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.”” (Emphasis supplied)

As to Ms. Arleen’s claim for overtime pay, since she is the one claiming for overtime pay, she has to prove that she has rendered overtime work which inurred to the benefit of her employer. In the case of Etermit Employees and Workers Union vs Jesus de Veyra, G. No. 50110, 21 September 1990, the Court stated, to wit:

“The contention of petitioner union that it does not have the legal obligation to present evidence on its claim for overtime pay is untenable. It is basic rule of evidence that each party must prove his affirmative allegation and therefore, it behooves upon petitioner claiming overtime pay to prove that it is entitled to the same.”

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

Atty. Angela Antonio