Dear Atty. Vlad,
I was hired as a probationary employee in a logistics company on 10 June 2023. However, last 9 December the HR manager issued me a Notice of Termination of Employment for my failure to pass the probationary phase of my employment due to poor performance.
Can my employer through its HR manager validly do this? I hope you can help me.
Catherine Marie
Dear Catherine Marie,
While your employer may validly discontinue your employment for failing to pass the probationary phase of your employment, this may be done while you are still under probationary employment. However, from the facts you stated, when I counted the days, it is already more than 180 calendar days or 182 calendar days to be exact.
As such, you are already a regular employee at the time you were dismissed. As a regular employee you can only be dismissed for just or authorized causes under the law.
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 of 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 conforms 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, 6, 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, 182 calendar days have already lapsed. Your 180th day ended on 7 December 2023. As such, you should have been informed on that day or prior thereto, that you are being dismissed for your failure to pass the probationary phase of your employment.
Since more than 180 calendar days have passed, by operation of law, you are already a regular employee entitled to security of tenure. You may only be dismissed for just or authorized cause/s under the Labor Code, as amended.
I hope I was able to help you based on the facts that you shared.
Atty. Vlad del Rosario
