Illegal dismissal

Dear Atty. Kathy,

I started working with my employer, Company N, November of last year, without signing any employment contract. I did not mind this at first because I timely receive my correct salaries and benefits. However, just this May, I was asked to sign a probationary employment contract starting immediately, and lasting for 5 months. I was therefore shocked when Company N suddenly did not allow me to report for work, for the reason that I was already dismissed because I did not pass the probationary employment standards and did not qualify to become a regular employee. Is this not illegal dismissal because I am already a regular employee, having worked with Company since November 2023?

Hannah

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Dear Hannah,

In probationary employment, it is indispensable that the employer informs the employee at the time of engagement the reasonable standards by which he or she will be evaluated for regularization. In case the employer fails to comply with this requirement, the employee shall be deemed a regular employee.

If no clear probationary employment standards were set forth and communicated by Company N to you at the inception of your employment in November 2023, then you are already deemed a regular employee.

To validly dismiss a regular employee, the employer must observe substantive and procedural due process. Substantive due process requires that the dismissal must be pursuant to any of the just or authorized causes under the law. Meanwhile, procedural due process requires that the employee must be given notice of the reason for one’s dismissal, an opportunity to be heard and defend himself or herself and a notice of the employee’s termination.

Based solely on your narration, it appears that Company N did not comply with these requirements, as it dismissed you outright for your alleged failure to pass probationary employment standards. However, as mentioned above, it appears that you were employed as a regular employee from the beginning of your employment in November 2023. Thus, there could be no basis for your dismissal for failure to pass probationary employment standards when you already have regular employment status. In this regard, you may have basis to contest your dismissal as illegal, for failure to pass probationary employment standards, as you were already a regular employee at the start of your employment.

(ADSTRATWORLD HOLDINGS INC. versus JUDITO B. CALLAO, et al., G.R. No. 233679, 6 July 2022)

Atty. Kathy Larios