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PROBATIONARY EMPLOYMENTWHY YOUR PROBATIONARY EMPLOYMENT IS DEFECTIVE
©2015, Atty. Jericho B. del Puerto. All rights reserved. For permissions to use this material, send a request to this e-mail address: [email protected]
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A defective probationary employment results in regular employment.
- ATTY. JERICHO B. DEL PUERTO
Business Lawyer & Legal ConsultantJDP Consulting Ltd. Co.
Business Law ProfessorSan Beda Graduate School of Business
Book Author, Legal Aspects of BusinessCentral Books Publishing
What is a probationaryemployment?
A probationary employment is one wherein an employee is made to undergo a probationary period not exceeding six months from starting
date.
The employer is required to inform the probationary employees of the reasonable standards under which they will qualify as regular employees.
What is the purpose of probationary employment?
The probationary employment is intended to afford the employer an opportunity to observe the fitness of a probationary employee while at
work, and to ascertain whether he will become an efficient and productive employee.
While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent
employment, the probationer, on the other hand, seeks to prove to the employer that he has the qualifications to meet the reasonable standards
for permanent employment.
- Tiamson's Enterprises, Inc. v. Court of Appeals, G.R. No. 192881, 16 November 2011
What is the defect in your probationary employment?
+6 months probationary period = regular employee
no standard/criteria = regular employee
Most probationary employment either does not have the required standards or probationary employment exceeds 6 months, resulting in regular
employment.
To be clear and why so many become liable…
1 day work after probationary period = automatic regular employee
No further declaration is needed from the employer.
The law itself deems the probationary employee a regular.
Consequences for a defective probationary employment…
SALARIES, BENEFITS
Employee is entitled to all salaries, benefits, and privileges of a regular employee under labor laws, employment contract, company policies or practices, or Collective Bargaining Agreement.
DUE PROCESS As a regular
employee, he/she cannot be terminated for failure to pass probationary employment, resulting in the application of due process termination.
BACKWAGES If illegally dismissed,
the employee will be entitled to full backwages, reinstatement, moral damages, exemplary damages, nominal damages, attorney’s fees.
How do you avoid such liabilities?
Management should observe best legal practices to avoid such consequences and liabilities.
Best legal practices are best practices with legal compliance. For employment, they are sourced from labor laws, rules & regulations,
jurisprudence, and best practices.
What are these best legal practices for probationary employment? Clearly state in employment contracts the status of the employee
upon engagement – e.g. probationary employee
Stipulate therein the probationary period which should not exceed 6 months
Provide for the reasonable standards under which the probationary employee will qualify for regular employment
If probationary fails to qualify, serve written notice of termination at least 5 days prior to last day
Do not allow probationary employee from working beyond the probationary period
May probationary employment extend beyond
6 months?
Yes, probationary employment may extend beyond 6 months only in certain cases currently authorized by law.
What are these cases currently authorized by law?
APPRENTICESHIP DOLE-approved
apprenticeship agreements may exceed 6 months probationary employment
PRIVATE TEACHERS
Private basic education teaching personnel – not exceeding 3 years
Private tertiary education teaching personnel – not exceeding 6 consecutive semesters or 9 consecutive trimesters of satisfactory service
GRATUITOUS The employer may
extend the probationary employment out of generosity or liberality provided there is written consent from the employee.
- Mariwasa Manufacturing, Inc. v. Leogardo, Jr., G.R. No. 74246, 26 January 1989
Are there cases when probationary employees were deemed regular?
Yes, there are numerous Supreme Court Decisions or Jurisprudence wherein probationary employees were declared to be regular due to defects despite having a different arrangement with the employer.
Jurisprudence or Supreme Court Decisions…
+6 MONTHS An probationary employee
(management trainee) who was made to work 2 days after the probationary period was considered a regular employee.
– Mitsubishi Motors Philippines Corporation v. Chrysler Philippines Labor Union, G.R. No. 148738, 29 June 2004
NO STANDARDS An employee (assistant to the
president) who was not informed of the standards to qualify for regular employment was considered a regular employee.
- Tiamson's Enterprises, Inc. v. Court of Appeals, G.R. No. 192881, 16 November 2011
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Avoid a defective probationary employment to prevent liabilities.- ATTY. JERICHO B. DEL PUERTO
For more information, contact:
JDP CONSULTING LTD. CO.Call: (+632) 479-5405, Fax: (+632) 479-5401Mobile: (+63) 917-622-0124E-mail: [email protected]: www.jdpconsulting.ph
You may also want to visit:
www.legalaspects.phBusiness Laws & Best Legal Practices
©2015, Atty. Jericho B. del Puerto. All rights reserved. For permissions to use this material, send a request to this e-mail address: [email protected]
