Probationary employment

Dear Atty. Angela,

I am an owner of a retail store and one of our probationary employees took a medical leave for 2 months, only after working in the store for less than 3 months. For those said months, she was inefficient and did not perform based on the standards that I impose for regular employees. If she returns after 2 months, there is barely enough time to give further assessment. Is it okay to extend her another 2 months even when I feel that she will not improve the quality of her work?

Sarah

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Dear Sarah,

I would strongly advise against any extension of probationary employment. This form of accommodation is dangerous. If the employee could not perform in the first three months of employment, there is no reason why the employer should expect said employee to perform better during the extension.

Art. 296 of the Labor Code is explicit. Probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

While there had been a jurisprudence that permitted the extension of probationary period, particularly in the case of Mariwasa Manufacturing Inc., et al. vs. Hon. V. Leogardo Jr., G.R. No. 74246 (26 January 1989), where the Supreme Court allowed such extension of probationary employment (by mutual agreement of the parties, in a written instrument), this case is an exception to the general rule. Furthermore, there is strong possibility that the High Court will abandon this ruling, to strictly adhere to the 6-month limit of the probationary employment under the law.

In this case, the probationary employee has rendered work for 3 months. If there are supporting documentation and performance evaluation to show that she failed to meet the competency standards expected from her which had been previously made known, the company may proceed with her non-regularization. Again, the company is not obligated to assess the employee for the full 6-month period so long as it had fairly and reasonably assessed her performance, and duly notified her before the end of the 6th month period.

Atty. Angela Antonio