Press Releases
PROBATIONARY EMPLOYMENT AND TERMINATION OF EMPLOYMENT

Baguio City - “Kulas” is a bartender for a popular Café and Bar in Baguio’s Central Business District and has been employed for the past five months until an unfortunate incident leading to termination of employment and a labor complaint.

For “Kulas”, in order him to be eligible to make an unfair dismissal claim, he must have first completed the minimum period of employment with his or her employer. Generally, this means that an employer can terminate the employee during the probationary period without leaving the employer open to an unfair dismissal claim.

In the case of Philippine Daily Inquirer vs. Leon M. Magtibay, Jr., G.R. No. 164532, July 24, 2007, the Supreme Court ruled that such a dismissal, does not require notice and hearing. Due process of law for this second ground consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment. By the very nature of a probationary employment, the employee knows from the very start that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors. It is in apprising him of the standards against which his performance shall be continuously assessed where due process regarding the second ground lies, and not in notice and hearing as in the case of the first ground. Due process for a probationary employee consists in having informed him of the standards against which his performance will be continuously assessed during the probationary period.

Employers should remember the following: a) Probationary employment allows you to assess an employee’s fitness for a job; b) You need to discuss with a probationary employee how you will evalute his work for permanent employment; c) You can dismiss a probationary employee without notice or hearing because this is a trial period; d) If the work of your probationary employee is found to be unsatisfactory, you’ll need to serve him a written notice; and e) The two notice rule doesn’t apply if a probationary employee is dismissed for poor work quality.

There are types of employment termination: first is termination by the employer. An employer can only terminate an employee if there is just cause or an authorized reason. A just cause can be an employee’s unethical behavior or negligence. Legal grounds, on the other hand, are the basis for authorized termination.

Just like the case of “Kulas”, his employer ended the employment contract as evidenced by documented employee’s behavior and specific instances that led to termination. Article 282 of the Labor Code states that the employer can fire an employee as follows: serious misconduct or willful disobedience; gross and habitual neglect of duty; fraud or deliberate breach of trust; commission of a crime or offense other similar reasons.

However, Article 283 states that an employer can also terminate an employee for authorized causes, including business reasons such as: installation of labor-saving devices; redundancy; reduction of costs to prevent losses; the closing or cessation of operation. Also, if your employee suffers from a health condition that lasts more than six months or the law prohibits them from working with such disease or working is harmful to themselves or their co-workers, you are entitled to terminate their contract (Article 284, Labor Code).

For the termination of a probationary employee, Article 281 of the Labor Code says that if during this probationary period, it becomes evident that the employee fails to meet the company’s standards or any of the above-mentioned just causes occur, the employer is eligible to terminate their contract.

For termination due to authorized causes, separation pay is given to the employee. The amount of severance pay depends on how long the employee has been working for the employer and the reasons for termination of the contract.

Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. ... An employee who is allowed to work after a probationary period shall be considered a regular employee.

Under Article 281 of the Labor Code of the Philippines, probationary employment shall not exceed six (6) 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.

Recent developments on House Bill (HB) No. 4802 filed by Probinsyano Ako Representative Jose "Bonito" Singson Jr. seeking to extend the probationary period of workers from six months to two years stating that six months probationary period is not enough to determine a worker’s qualification for regular employment.

Department of Labor and Employment (DOLE) Secretary Silvestre H. Bello III is against the bill because this would deny workers their right to security of tenure and it runs counter to government policy. Also the bill might encourage illegal practice of contractualization, such as the practice of “endo”, as employers can terminate the workers within two years, which limits a workers’ right to statutory benefits as a regular employee.

For more information about General Labor Standards visit DOLE website @ www.dole.gov.ph and www.car.dole.gov.ph

END/Patrick T Rillorta

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2019-10-28
Dir.Exequiel Guzman
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