Labor Law Review 2020

Atty. Paciano F. Fallar Jr.

SSCR-CoL

NOTES ON SPECIAL GROUP OF WORKERS

(LEARNERSHIP,APPRENTICESHIP,
PWD, CHILD WORKERS, KASAMBAHAYS,
WOMEN, & PROBATIONARY EMPLOYEES)

Th word “special” is used here in a very limited sense, that is, these class of workers are
covered by specific provisions in the Labor Code or by special laws.

Apprentices and Learners

"Apprenticeship " is an employment contract with practical training on the job for more than
three (3) months but not more than six (6) months, supplemented by related theoretical
instruction. Only employers in highly technical industries may employ apprentices and only
in apprenticeable occupations approved by the TESDA. The minimum age for apprentices is
14 years (Arts. 58-60, Labor Code).

In an apprenticeship agreement there is no commitment on the part of the employer to employ

the apprentice after the completion of the training. The employer is allowed to pay the
apprentice with 75% of the minimum wage rate.

An apprenticeship agreement must be approved by TESDA; otherwise, the apprentice will

be considered a regular employee (Nitto Enterprises vs NLRC, GR No. 114337, 29 September
1995; Century Canning Corp vs CA, GR No. 152894, 17 August 2007). If a person has been hired
as regular employee, it would be illegal to subsequently engage them as apprentices (Atlanta
Industries Inc vs Sebolino, GR No. 187320, 26 January 2011).

If a person has been engaged for a certain skill/occupation as apprentice, can he be again be
engaged for a different skill/occupation under another apprenticeship program? Since the
purpose of apprenticeship is not employment ( unlike learnership), I believe that this is legally
tenable. The purpose of the law is not necessarily for the apprentice to train for employment, but
for him to acquire skills which he may use to ply his own small business.

Jurisdiction for any violation of the apprenticeship agreement is granted to the DOLE (Art. 65-
67, Labor Code). But a case for illegal dismissal, on the theory that an apprentice is a regular
employee, shall be filed with the Arbitration Branch of the NLRC.

"Learnership" is an employment contract for training in semi-skilled and other industrial

occupations which are non-apprenticeable, not to exceed three (3) months, with or without
related theoretical instructions (Art. 70, Labor Code). The minimum age for learners is 15 years;
those below 18 years old may only be employed in non-hazardous occupations. What are
hazardous occupations is determined by the DOLE.

In a learnership agreement, there is a commitment on the part of the employer to employ the
leaner as regular employee after the completion of the training. The employer is allowed to pay
the leaner with 75% of the minimum wage rate.

Since there is a commitment to employ the learner, the employer is better off hiring him as
probationary employee since the period of training would be longer ( usually six [6] months).
Avoiding the rigidity of security of tenure is a higher value than paying only 75% of the minimum
wage rate.

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Handicapped workers

"Handicapped " workers are those whose earning capacity is impaired by age or physical
or mental deficiency (Art. 78, Labor Code).Like apprenticeship and learnership, the contract with
handicapped workers must be in writing and must include the duration of the employment.
The salary rate shall not be less than 75% of the statutory minimum.

In Bernardo vs NLRC ( G.R. No. 122917, 12 July 1999), the task of counting and sorting bills
((used to be handled by regular tellers) was held to be necessary and desirable in bank
operations. Thus, the the deaf-mutes hired for these tasks on fixed term basis ( initially , 6
months with 1-month trial period) and whose services were renewed several times exceeding
six (6) months were deemed regular employees entitled to security of tenure.

Curiously, and without explaining itself, the SC ruled that those deaf-mute sorters whose
services did not reach six (6) months were validly terminated. This is plainly wrong. If they were
hired on probationary basis, they have already passed it since the training period was only one
(1) month. And even if they the probationary period was set at six (6) months, there was no
indication that their services were not renewed because of failure to qualify. Instead, their fixed
term contracts were simply allowed to expire. The non-renewal would constitute illegal
dismissal, because the fixed term contracts cannot stand the judicial test of the giant banking
institution and the deaf-mutes with limited employability having dealt with each other “on more
or less equal terms with no moral dominance whatever being exercised by the former over the
latter".

Child Workers

No child below 15 years of age shall be employed, except when he works directly under the
sole responsibility of his parents or guardian , and his employment does not in any way
interfere with his schooling (Art. 139 (a) [137], Labor Code]. No person below 18 years old shall be
employed in any undertaking which is hazardous or deleterious in nature as determined by
the Secretary of DOLE (Art. 139,b [137], Labor Code).

Note that the Kasambahay Law provides:

Section 4 (d) Domestic worker or "Kasambahay" refers to any person engaged in

domestic work within an employment relationship such as, but not limited to, the
following: general house help, nursemaid or "yaya", cook, gardener, or laundry
person, but shall exclude any person who performs domestic work only
occasionally or sporadically and not on an occupational basis.

The term shall not include children who are under foster family arrangement, and
are provided access to education and given an allowance incidental to
education, i.e. "baon", transportation, school projects and school activities.

xxx

Section 16. Employment Age of Domestic Workers. – It shall be unlawful to

employ any person below fifteen (15) years of age as a domestic worker.
Employment of working children, as defined under this Act, shall be subject to the
provisions of Section 10(A), paragraph 2 of Section 12-A, paragraph 4 of Section 12-
D, and Section 13 of Republic Act No. 7610, as amended, otherwise known as the
"Special Protection of Children Against Child Abuse, Exploitation and Discrimination
Act".

Discrimination against child workers is deemed an unlawful act ( Art. 138, Labor Code).

Kasambahay

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Section 4 of the Batas Kasambahay defines Domestic work as “work performed in or for a
household or households” and Domestic worker or "Kasambahay" as any person engaged in
domestic work within an employment relationship such as, but not limited to, the following:
general house help, nursemaid or "yaya", cook, gardener, or laundry person, but shall exclude
any person who performs domestic work only occasionally or sporadically and not on an
occupational basis. The Implementing Rules and Regulations exclude family drivers from the
definition, but this is a debatable proposition since driving for a family is clearly “work performed
for a household.”

The term household is defined as “immediate members of the family or the occupants of the
house that are directly provided services by the domestic worker”.

It is now settled that a house helper or domestic servant working within the premises of the
business of the employer and in relation to or in connection with its business, as in its staff
houses for its guest or even for its officers and employees renders such house helper or
domestic servant a as a regular employee of the business enterprise, and not mere family
house helper or domestic servant of a household (Remington Industrial Sales Corp. vs
Castaneda, GR NO.s. 169295-96, 20 November 2006).

The distinction is important because kasambahays, while now entitled to five (5) day SIL after
one (1) year of service as well as mandatory SSS coverage, have very limited security of
tenure.

The law provides the employer may terminate the contract before the expiration of the term
except for just causes ( basically the same as those under Art. 297 of the Labor Code) but the
remedy is just “compensation already earned plus the equivalent of fifteen (15) days
work by way of indemnity”. This makes kasambahay employment virtually one at will . She
could be terminated anytime, subject only to 15 days pay. There is no remedy of reinstatement,
back wages, or salaries for the unexpired portion of the contract.

Women

By virtue of their sex, female workers are entitled to leaves which are not enjoyed by male
workers. These are:

 Expanded maternity benefits (105-day paid maternity leave benefit for every
live childbirth, regardless of the type of delivery.; 60-day paid leave in case of a
miscarriage or an emergency termination of pregnancy (ETP), including stillbirth;
and additional 15-day paid leave to a female employee, who qualifies as a solo
parent under the Solo Parents’ Welfare Act).

Marital status is not a qualification, and the old 4-delivery limit has been
abolished. While maternity benefits are paid by the SSS ( but payment is
advanced by the employer) , the difference between the maximum SSS benefits
and the employee’s salary will be shouldered by the employer.

 VAWC Leave (Sec. 43, VAWC Law)- Paid leave of absence up to ten (10)
days in addition to other paid leaves under the Labor Code "Victims"
would refer to "any woman who is [the offender's] wife, former wife, or
against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child" ( Section 3, VAWCI ).
The period of extension need not be paid, although the absence would be
authorized (and therefore not subject to disciplinary sanction).

The availment of the ten day-leave shall be at the option of the woman employee,
which shall cover the days that she has to attend to medical and legal
concerns. Leaves not availed of are noncumulative and not convertible to cash.
(IRR of VAWCI)

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  Gynecological Disorder Leave (Magna Carta For Women)- “Gynecological
disorders” refers to disorders that would require surgical procedures
such as, but not limited to, dilatation and curettage and those involving
female reproductive organs such as the vagina, cervix, uterus, fallopian
tubes, ovaries, breast, adnexa and pelvic floor, as certified by a
competent physician. As clarified by the IRR, ]gynecological surgeries
shall also include hysterectomy, ovariectomy, and mastectomy;

A woman employee having rendered continuous aggregate employment

service of at least six (6) months for the last twelve (12) months shall be
entitled to a special leave benefit of two (2) months with full pay based on
her gross monthly compensation “ plus mandatory allowances” following
surgery caused by gynecological disorders.

Special leave benefit is non-cumulative and non-convertible to cash unless

otherwise provided by a CBA.

The Labor Code penalizes discrimination against women ( Art. 133, Labor Code) , when sex
used as the sole basis for different treatment in the terms and conditions of employment
including compensation, promotions, training opportunities and scholarship grants. Stipulation
against marriage, and discrimination or discharge from employment due to pregnancy,
are also outlawed by the Labor Code ( Arts. 134-135).

A termination motivated by the employee having contacted marriage was been deemed illegal
(PT & T vs NLRC, G.R No. 118978, 23 May 199 7). A similar conclusion was reached when the
employees married their co-employees , and the company imposed the sanction of dismissal
provided by the company policy ( Star Paper Corp. vs Timbol, GR No. 164774, 12 April 2006 ).
This is not exactly a female discrimination case, since even the male employees benefited from
the SC’s decision, This is a marital prohibition case. The SC held that the policy was
unreasonable as the company failed to prove a legitimate business concern that would justify
the discrimination.

A different situation obtained in Capiz-Cadiz vs Bent Hospital and Colleges (GR No. 187417, 24
February 2016), where the employee was suspended indefinitely for getting pregnant out of
wedlock. The company imposed as condition for reinstatement that she marry her boyfriend.
The indefinite suspension was held tantamount to illegal dismissal, as sex between two
consenting adults with no impediment to marry and the consequent pregnancy were deemed
not a disgraceful and immoral conduct. The condition that she marry her boyfriend was held
coercive and oppressive, and violative of the Magna Carta for Women. The remedy for
sectarian institutions with certain religious tenets, as suggested by the SC, is to craft an express
statement in its manual of personnel policy prescribing such religious standard as gauge for
employee conduct.

In Duncan Association of Detailmen -PTGWO vs Glaxo Wellcome Phil,. Inc. (GR No, 162994, 17
September 2004), the SC upheld a company policy prohibiting its employees from having a
relationship with employees of competitor companies . The SC held that a company has a right
to guard its trade secrets, and that the prohibition against personal or marital relationships with
employees of competitor companies upon Glaxo’s employees is reasonable . It further held that
the equal protection clause applies only to the State , not to private entities.

The company policy in Glaxo reads:

10. You agree to disclose to management any existing or future relationship you
may have, either by consanguinity or affinity with co-employees or employees of
competing drug companies. Should it pose a possible conflict of interest in
management discretion, you agree to resign voluntarily from the Company as a
matter of Company policy.

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The premise of the policy is “possible conflict of interest”, and the implementation of the policy
would appear unreasonable if the position involved is merely clerical and does not entail access
to trade secrets. The position involved in Glaxo was that of medical representative, which
perhaps may require access to sales strategies. Nonetheless, the policy still seems too
unreasonable unless there is a clear showing of ”conflict of interest” matter of Company policy.
and not a mere “possibility”. If the position involved is merely clerical, how could such conflict of
interest possibly arise?

The SC in Glaxo did not consider Art. 134 of the Labor Code, which is quite categorical in its
prohibition:

Art,. 134 (136Z). Stipulation Against Marriage. Is shall be unlawful for an employer
to require as a condition of employment or continuation of employment that a woman
employee shall not get married , or to stipulate express or tacitly that upon getting
married, a woman employee shall be deemed resigned or separated, or to actually
dismiss , discharge , discriminate or otherwise prejudice a woman employee
merely by reason of her marriage.

The reason may be is that the employee involved in Glaxo was a male, not a female.

If it was a female employee who was terminated for marrying an employee of a competitor
company, the company may still argue that the termination was not “merely by reason of her
marriage” but because of conflict-of-interest situation. It is my opinion however that such
conflict-of-interest situation must be judged on a case-to-case basis.

Does the anti-marital prohibition applies equally to male employees? There is no valid
distinction ]between male and females on account of marriage, and I opine that a company
policy prohibiting male employees from marrying under penalty of discharge ( excepting
situations like Glaxo )would also be unreasonable. It can be assailed as illegal for violating no
less than the Constitution, which provides that “marriage , as an inviolable social institution, is
the foundation of the family and shall be protected by the State” (Art. XV, Section 2).

Termination brought about by pregnancy issues was invalidated in Del Monte Philippines vs
Velasco ( GR No. 153477, 06 March 2007) and Lakpue drug vs Belga ( GR No. 166379, 20
October 2005).

Probationary Employment

A probationary employee is one who, for a given period of time, is being observed and
evaluated to determine whether or not he is qualified for permanent employment. A
probationary appointment affords the employer an opportunity to observe the skill, competence
and attitude of a probationer. The word probationary, as used to describe the period of
employment, implies the purpose of the term or period. While the employer observes the fitness,
propriety and efficiency of a probationer to ascertain whether he is qualified for permanent
employment, the probationer at the same time, seeks to prove to the employer that he has the

Probationary employment shall not exceed six (6) months from the date the employee started
working, unless a different period is agreed upon the parties. The services of an employee who
has been engaged on a probationary basis may be terminated 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 the
probationary period shall be automatically considered a regular employee. (Art, 2917, labor
Code)

Form of probationary employment

Must it be in writing? The law is silent. But it is more difficult to prove probationary employment
based on an alleged oral agreement.

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Reasonable standards

Must the standards for regularization be in writing? Neither the Labor Code nor the
Implementing Rules so provide. But it is far easier to prove the existence of the standards when
the employee is made to sign a contract which stipulates a probationary period and lays down
the reasonable standards.

There would be less disputes if the standards are based on empirical data such as sales
volume or revenue generation ( see Aliling vs. Feliciano, G.R. No. 185829, April 25, 2012)

But in the majority of cases, the standards would rely on subjective assessment albeit it may be
given numerical scoring. The conceptual underpinnings of standards for regularization,
discussed in Abott Laboratories vs. Alcaraz, G.R. No. 192571, 22 April 2014, Resolution of the Motion
for Reconsideration), penned by Justice Perlas-Bernabe, is worth quoting in length:

Alcaraz posits that, contrary to the Court’s Decision, one’s job description cannot
by and of itself be treated as a standard for regularization as a standard denotes
a measure of quantity or quality. By way of example, Alcaraz cites the case of a
probationary salesperson and asks how does such employee achieve regular
status if he does not know how much he needs to sell to reach the same.

The argument is untenable.

First off, the Court must correct Alcaraz’s mistaken notion: it is not the
probationary employee’s job description but the adequate performance of his
duties and responsibilities which constitutes the inherent and implied standard for
regularization. To echo the fundamental point of the Decision, if the probationary
employee had been fully apprised by his employer of these duties and
responsibilities, then basic knowledge and common sense dictate that he must
adequately perform the same, else he fails to pass the probationary trial and may
therefore be subject to termination.

The determination of "adequate performance" is not, in all cases,

measurable by quantitative specification, such as that of a sales quota in
Alcaraz’s example. It is also hinged on the qualitative assessment of the
employee’s work; by its nature, this largely rests on the reasonable exercise of
the employer’s management prerogative. While in some instances the standards
used in measuring the quality of work may be conveyed – such as workers who
construct tangible products which follow particular metrics, not all standards of
quality measurement may be reducible to hard figures or are readily articulable in
specific pre-engagement descriptions. A good example would be the case of
probationary employees whose tasks involve the application of discretion
and intellect, such as – to name a few – lawyers, artists, and journalists. In
these kinds of occupation, the best that the employer can do at the time of
engagement is to inform the probationary employee of his duties and
responsibilities and to orient him on how to properly proceed with the
same. The employer cannot bear out in exacting detail at the beginning of the
engagement what he deems as "quality work" especially since the probationary
employee has yet to submit the required output. In the ultimate analysis, the
communication of performance standards should be perceived within the
context of the nature of the probationary employee’s duties and
responsibilities.

The same logic applies to a probationary managerial employee who is tasked to

supervise a particular department, as Alcaraz in this case.1It is hardly possible
for the employer, at the time of the employee’s engagement, to map into
technical indicators, or convey in precise detail the quality standards by which the
latter should effectively manage the department. Factors which gauge the ability
of the managerial employee to either deal with his subordinates (e.g., how to
spur their performance, or command respect and obedience from them), or to
organize office policies, are hardly conveyable at the outset of the engagement

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 since the employee has yet to be immersed into the work itself. Given that a
managerial role essentially connotes an exercise of discretion, the quality of
effective management can only be determined through subsequent assessment.
While at the time of engagement, reason dictates that the employer can
only inform the probationary managerial employee of his duties and
responsibilities as such and provide the allowable parameters for the
same. Verily, as stated in the Decision, the adequate performance of such
duties and responsibilities is, by and of itself, an implied standard of
regularization.

In this relation, it bears mentioning that the performance standard contemplated

by law should not, in all cases, be contained in a specialized system of
feedbacks or evaluation. The Court takes judicial notice of the fact that not all
employers, such as simple businesses or small-scale enterprises, have a
sophisticated form of human resource management, so much so that the
adoption of technical indicators as utilized through "comment cards" or
"appraisal" tools should not be treated as a prerequisite for every case of
probationary engagement. In fact, even if a system of such kind is employed and
the procedures for its implementation are not followed, once an employer
determines that the probationary employee fails to meet the standards required
for his regularization, the former is not precluded from dismissing the latter.

In the Abbot Lab case, the employee was made to undergo a pre-employment orientation
where she was informed that she had to implement Abbott’s Code of Conduct and office policies
on human resources and finance. She was also required to undergo a training program as part
of her orientation. And she received copies of Abbott’s Code of Conduct and Performance
Modules who explained to her the procedure for evaluating the performance of probationary
employees. Lastly, she was further notified that Abbott had only one evaluation system for all of
its employees

In Pasamba vs NLRC( G.R. No. 168421, 08 June 2007), the Supreme Court considered the
existence of reasonable standards based on the provision in the employment contract which
states :

You will be under probation employment for a maximum of six

months, within which period SLMC will determine your
suitability for the job including your work habits, personal
characteristics and your fitness prior to regularization 
xxxx

You are subject to strictly abide by SLMCs Code of Discipline

and its policies and procedures formulated by the
organization and all such rule and policies as may from time to
time be issued by the organization.
 
You will be issued a copy of these rules and policies at the start
of your probationary employment. (Emphasis provided.)

Apparently, even allegation of oral briefing of the standards could be accepted as evidence
when not denied by the employee (see Philippine Daily Inquirer vs. Leon M. Magtibay, Jr., G.R. No.
164532, 24 July 2007).

In Aberdeen vs Agustin ( GR No. 149371, 13 April 2005), it was held that the rule on reasonable
standards should not be used to exculpate a probationary employee who acts in a
manner contrary to basic knowledge and common sense, in regard to which there is no
need to spell out a policy or standard to be met. It agreed with the NLRC that:

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 It bears stressing that even if technically the reading of air exhaust
balancing is not within the realm of expertise of the complainant,
still it ought not to be missed that prudence and due diligence
imposed upon him not to readily accept the report handed to him
by the workers of Centigrade Industries. Required of the
complainant was that he himself proceed to the work area, inquire
from the workers as to any difficulties encountered, problems fixed
and otherwise observe for himself the progress and/or
condition/quality of the work performed.

As it is, We find it hard to believe that complainant would just have

been made to sign the report to signify his presence. By saying
so, complainant is inadvertently degrading himself from an
electrical engineer to a mere watchdog. It is in this regard that We
concur with the respondents that by his omission, lack of concern
and grasp of basic knowledge and common sense, complainant
has shown himself to be undeserving of continued employment
from probationary employee to regular employee.

The ruling of the SC in this case is hardly persuasive. The Labor Arbiter and the CA argued and
that concluded that :“Against the [employee’s] contention that exhaust air balancing is neither
covered by his duties nor competence, there is no showing that the [the company] even
attempted to prove the extent of the [employee’s] technical responsibilities. Even assuming that
the task properly pertained to the an employee where, as in the case at bench, the offense
appears to be the first committed by [him], was devoid of malice and, more importantly, was not
his sole responsibility”.

The SC was inconsistent in its view of the termination in this case. For it also awarded the
employee nominal damages of P30,000., on the ground that the company failed to comply with
the due process requirement. This indicates that the termination was predicated on just cause,
which was gross and habitual negligence. But the case did not indicate that the probationary
employee’s neglect (if ever it existed) was both gross and habitual. There was also no
evidence. of material damage or prejudice suffered by the employer. Thus, the dismissal
should have been declared illegal.

It could have made common sense of the common sense standard adopted by the SC if the
case involved a driver not checking the tires or the brakes prior to driving the vehicle, or not
stopping at red light. But the case involved technical work (engineering) , where set protocols
are expected.

In contrast, the SC in Hacienda Primera Development Corp vs Hernandez ( G.R. No. 186243,
11 April 2011) agreed with the NLRC that it is not enough for the employer to claim that the
employee " was presumed to know the standard required of him as General Manager in charge
[of] the pre-opening of the resort." The SC seemed to have ignored the employer’s assertion
that the GM’s services were terminated because he failed to qualify for regular employment”…
such as failing “ to conceptualize and complete financial budgets, sales projection, room rates,
website development, and marketing plan in coordination with the Sales and Marketing
Manager”. It is difficult to believe that a resort company would not have not discussed with the
GM what are the specifics of his job would be. Abbot ( supra) has since pronounced that “in the
ultimate analysis, the communication of performance standards should be perceived
within the context of the nature of the probationary employee’s duties and
responsibilities”.

The company could have remedied the lack of detailed standards in the probationary contract
by stating, in the notice of termination, that the employee despite being orally briefed on what

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the company expected him to accomplish and despite several warnings failed to “conceptualize
and complete financial budgets, sales projection, room rates, website development, and
marketing plan in coordination with the Sales and Marketing Manager”. Oral briefing of the
standards could be accepted as evidence when not denied by the employee (see Philippine
Daily Inquirer vs. Leon M. Magtibay, Jr., G.R. No. 164532, 24 July 2007).

The company could have also argued, as an alternative defense, that GM could be considered
to have been terminated for just cause ( incompetence ) since it appears he was not able to
controvert the company’s allegation of “ to conceptualize and complete financial budgets, sales
projection, room rates, website development, and marketing plan in coordination with the Sales
and Marketing Manager”.

Period of Probation

In Buiser vs Leogrado ( GR No. L-63316, 31 July 1984), it was held that: Generally, the
probationary period of employment is limited to six (6) months. The exception to this general
rule is when the parties to an employment contract may agree otherwise, such as when the
same is established by company policy [ or CBA] or when the same is required by the nature of
work to be performed by the employee."

In short, by agreement, it could be either shorter or longer than six (6) months.

For private school teachers, the period of probation is three (3) years as set by the DepEd's
Manual of Regulations for Private Schools ( UST v NLRC, GR No. 85519, 15 February 1990).

Computing the Probationary Period

In one case , it was held that the six-month probationary period [ or any other agreed period] is
reckoned from the date of appointment up to the same calendar date of the sixth month [or
any other agreed period] following. Thus, the probationary period of an employee hired on 20
May 1996 ended on 20 November 1996 (Alcira vs. NLRC, et. al., G.R. No. 149859, June 9, 2004;
see also Cebu Royal Plant vs Deputy Minister, 153 SCRA 38 [1987]) & Cals Poulry Supply vs
Roco, GR No. 150660, 30 July 2002). Otherwise, stated, the number of days in a month is
irrelevant for this purpose.

But in another case, it was held that the probationary period of six (6) months consists of 180
days. In computing a period, the first day shall be excluded and the last day included. The 180
days commenced on 27 May 1996 and ended on 23 November 1996. Thus, the employee was
already a regular employee at the time he was terminated on 26 November 1996 (Mitsubishi
Motors Phils. Corp. vs. Chrysler Phil. Labor Union et. al., G.R. No. 148738, June 29, 2004).

Such seemingly trivial controversies could be avoided by terminating the probationary

employment well ahead of its expiry . Terminating the probationary contract just days before
its expiry raises well-founded suspicions that the alleged failure to qualify (especially if the
alleged work lapses are not documented or else not made known before hand to the employee)
is a mere pretext to circumvent security of tenure see (Manila Hotel Co vs NLRC, GR No. L-
53453, 22 January 1986; Holiday Inn vs NLRC, G.R. No. 109114, 14 September 1993).

See: Civil Code, Art. 13

Revised Administrative Code (EO 2912), Book I, Sec. 31

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Extending the probationary period

The employer and employee may agree on extending the probationary period, in case the latter
fails to make the grade within the original period (Mariwasa vs Leogardo, GR No. 74246,26
January 1989).
Should the extension be in writing? There seems to be no such necessity. But since the
extension requires the employee's consent, proving the extension by mere oral agreement
would be difficult. Besides, an extension presupposes the employee failed the performance
evaluation and the absence of such evaluation would render unconvincing the claim of an
agreed extension (see Dusit Hotel Nikko vs. Gatbonton ,G.R. No. 161654, 05 May 2006).

Grounds for terminating a probationary employee

The grounds listed in the Labor Code ( just causes, authorized causes, disease), as well as the
grounds allowed by jurisprudence, also apply to probationary employees.

In addition, the law explicitly provides that the services of the probationary employee may be
terminated 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.

The grounds are not exclusive but may overlap. A ground may constitute both a just cause and
a failure to qualify (e.g., incompetence and gross neglect)

Procedure in terminating a probationary employee

Despite the language of Art. 294 of the Labor Code that security of tenure applies to "regular
employment", the Rules Implementing the Labor Code provides that it also applies to
probationary employees ( RILC, Book VI, Rule 1, Sec.,2 , par 2). This is the prevailing
jurisprudence. The doctrine is correct, because probationary employment is a species of regular
employment ( i.e., the position is regular, only that the employee is on trial period).

The requirements of notice and hearing (for just causes), 30-day prior written notice and
payment of separation benefits ( for authorized causes) and certification from a competent
public health authority and separation benefits ( for disease), likewise apply to probationary
employees.

But what procedure applies if the employee is terminated for failure to qualify as a
regular employee? Is the probationary employee entitled to notice and hearing?

The case of Pines City Educational Center vs NLRC( GR No. 96779, 10 November 1993) suggests
the employees should be given the opportunity to refute the employer's assessment of below-
standards performance. Other cases suggest otherwise.

In Philemploy Services vs Rodriguez (GR No.152616, 31 March 2006 ), the Supreme Court
cited Section 2, Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code which
provides that if the termination is brought about by the completion of a contract or phase
thereof, or by failure of an employee to meet the standards of the employer in the case of
probationary employment, it shall be sufficient that a written notice is served the
employee within a reasonable time from the effective date of termination." (see also
Philippine Daily Inquirer vs. Leon M. Magtibay, Jr., G.R. No. 164532, 24 July 2007; Aliling vs. Feliciano,
G.R. No. 185829, April 25, 2012).

These conflicting rulings may be reconciled in the sense that a probationary employee, upon
being advised that he failed the performance evaluation, may demand to be informed of the
basis of such management determination and be allowed to contest the same. A sort of motion
for reconsideration.

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In Abott Laboratories vs. Alcaraz ( G.R. No. 192571, 23 July 2013, Main Decision ), the Supreme
Court cautioned employers in complying with its own policies on termination. The termination
may be held valid but the employer will be assessed damage for failure to comply with its
internal procedure such as review of the performance evaluation with the employee; frequency
of performance review; compliance with a Performance Improvement Plan; prior
recommendation by supervisors before top management approval:

In this case, it is apparent that Abbott failed to follow the above-stated

procedure in evaluating Alcaraz. For one, there lies a hiatus of evidence that a
signed copy of Alcaraz’s PPSE form was submitted to the HRD. It was not even
shown that a PPSE form was completed to formally assess her performance. Neither
was the performance evaluation discussed with her during the third and fifth months
of her employment. Nor did Abbott come up with the necessary Performance
Improvement Plan to properly gauge Alcaraz’s performance with the set company
standards.

While it is Abbott’s management prerogative to promulgate its own company

rules and even subsequently amend them, this right equally demands that
when it does create its own policies and thereafter notify its employee of the
same, it accords upon itself the obligation to faithfully implement them. Indeed,
a contrary interpretation would entail a disharmonious relationship in the work place
for the laborer should never be mired by the uncertainty of flimsy rules in which the
latter’s labor rights and duties would, to some extent, depend.

When to serve the written notice

The law requires "reasonable notice" prior to end of the probation period. Termination on the
expiry of the probationary period, or so near it like a few days before, may be an viewed as
indicator that the termination is done in bad faith (see Manila Hotel Co vs NLRC, GR No. L-53453,
22 January 1986; Holiday Inn vs NLRC, G.R. No. 109114, 14 September 1993).

There is no legal requirement that the probationary period should be completed before
termination is effected. If the purpose sought by the employer is neither attained nor attainable
within the probationary period, the employer may decide to end the employment ( International
Catholic Migration Commission vs NLRC, GR No.72222, 30 January 1989).

If the employee is allowed to continue working beyond the probationary period, he automatically
gains regular status notwithstanding the employer's failure to formalize the status through a
written memo.

Requisites for valid termination of probationary employee

In Cathay Pacific Airways vs Marin( G.R. No. 148937, 12 September 2006 ), it was pronounced
the power of the employer to terminate an employee on probation is thus subject to the following
conditions:
(a) it must be exercised in accordance with the specific requirements of the contract ( like
prescribed period and frequency of evaluation);
(b) the dissatisfaction on the part of the employer must be real and in good faith, not prejudicial
so as to violate the contract or the law; and,
(c) there must be no unlawful discrimination in the dismissal..

In Manila Hotel Co vs NLRC (GR No. L-53453, 22 January 1986)., the lead gardener was the one
terminated (ostensibly for retrenchment) by the hotel while three (3) other gardeners ( with
inferior qualifications) were retained. His termination was deemed discriminatory, and thus
illegal.

No double/successive probations

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Subject to the principle of extended probation with the employee's consent discussed
previously, an employer should not subjected to repeated or successive probation.

Thus, successive hiring and firing will be viewed as ploy to circumvent the law on security of
tenure (Octaviano vs NLRC, G.R. No. 8863, 03 October 1991 ). A regular employee, who was
transferred to a sister company as a probationary employee and then dismissed, was held
illegally terminated ( A' Prime Security vs NLRC, GR No. 107320, 19 January 2000). An employee,
who was first hired on a 3-week on-the-job -training and then subjected to a 6-month
probation, was held to have been subjected to double probation. Her dismissal after the end
of the 6-month period was held illegal (Holiday Inn vs NLRC, G.R. No. 109114, 14 September
1993). At the very least, the OJT period should be considered part of the probationary period.
XXXXX

But see Philippine Daily Inquirer vs. Leon M. Magtibay, Jr., (G.R. No. 164532, 24 July 2007 ),
where the telephone operator was first hired on contractual/fixed term basis and then hired
again on probationary basis.

Question: If a probationary employee is deemed illegally terminated and ordered

reinstated, must the probation resume and the balance of the period completed?

Status in Lay Offs

Probationary employees, like casual employees, are deemed to possess "least preferred
status" in redundancy/retrenchment programs. Hence, they are usually among the first to go in
the process of selecting inclusion in lay offs.PFFallarJrSEPT2020

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