Ending Probationary Employment Without Termination Notice

40 Comments

January 22, 2009 · by Sonnie · Ask Sonnie, Entrepreneurship, HR Series, Human Resources, Law, Modern HR, Pilipinas, Talent Management

A Supreme Court (of the Philippines) jurisprudence suggest this.

For years, employers are on their toes to ensure that the sixth month of employment of probationary employees are monitored to ensure no unqualified proby employees will be regularized. Likewise, proper documentation is considered a must for the following:

Discussion of employment standards/expectation levelling
Job description
Performance appraisal
Employment contracts and
Observance of twin notice rule

This is to ensure the decision to end an employee’s probationary contract will not be construed as whimsical.

But a Supreme Court jurisprudence about a case of a supervisor who failed to qualify as a permanent employee is rather interesting.

On the 6th month, the Supervisor was not allowed to time in and as a result, he sued the company for illegally dismissing him. But the court says there is no termination or dismissal but rather an expiration of his 6 month probationary contract.

This decision of the NLRC was upheld by the Court of Appeals which says :

” Even assuming, arguendo, that petitioner was not informed of the reasonable standards required of him by Middleby, the same is not crucial because there is no termination to speak of but rather expiration of contract. Petitioner loses sight of the fact that his employment was probationary, contractual in nature, and one with a
definite period. At the expiration of the period stipulated in the contract, his appointment was deemed terminated and a notice or termination letter informing him of the non-renewal of his contract was not necessary.

While probationary employees enjoy security of tenure such that they cannot be removed except for just cause as provided by law, such protection extends only during the period of probation. Once that period expired, the constitutional protection could no longer be invoked. Legally speaking, petitioner was not illegally dismissed. His contract merely expired. “

The Supreme Court also upheld the decision made by both NLRC and Court of appeals:

G.R. No. 149859 June 9, 2004

..But we have ruled in Manlimos et al VS NLRC that this constitutional protection ends on the expiration of the probationary period. On that date, the parties are free to either renew or terminate their contract of employment. Manlimos concluded that “(t)his development has rendered moot the question of whether there was a just cause for the dismissal of the petitioners xxx.”

To get a grasp of this case, read the complete text of the decision here or copy paste this address to your browser: http://www.lawphil.net/judjuris/juri2004/jun2004/gr_149859_2004.html

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40 Responses to “Ending Probationary Employment Without Termination Notice”

ceblogger January 22, 2009 at 1:14 PM

wow! so there’s no more need to send a 30-day notice to the proby employee?

cebloggers last blog post..Ceblogger Is Now On Twitter
MiGs January 22, 2009 at 7:14 PM

WOW!

All along i thought that if walang ginawang action ang either party lalo na ang company after the 6 month probi period is that the probi employee is deemed to have passed that evaluation period and he/she automatically becomes a regular employee.

But i thought that the government or most decisions are in favor of labor or to the employee?

I think this is not fair for the probi employee. Where is due process?

MiGss last blog post..Has Nokia abandoned the N82?
joon abad May 25, 2009 at 10:48 AM

The employers should still be on their toes. Remember that the bone of contention here by the Supreme Court is if the employee was terminated before or after the expiration of proby period. i think the court will rule in favor of the employee had the company not able to stop him from reporting for work.

Furthermore, the court saw his records of performance. It was really bad. More important than the technicality of the law, the court judged justly based on the available records of bad performance of the employee and the patience showed by the company in giving him a chance to finish his contract inspite of his poor showing.

Justice prevailed.
Lanie January 19, 2012 at 4:56 PM

So, if after the 6-month probationary period, its up for the both parties (employer-employee) if they will renew or not their contract. Does this mean that those contractual employees under a 5-month contract can also get their contracts renewed after every 5-months? Can the company just renew their contracts without getting them as regular employees? All along I thought that immediately after the 6-month contract, if without notice, the probationary employee automatically becomes a regular employee….
Sonnie January 19, 2012 at 9:22 PM

Lanie-

if after the 6-month probationary period, its up for the both parties (employer-employee) if they will renew or not their contract?

No. Termination notice is still needed if EEe will be removed for a cause. End of contract happens, when after a series of performance evaluation and employee did not meet the standard, EEr have the option to terminate employment [but need to observe due process] or complete the duration of contract. Meaning, EEe knows, he did not make it

Does this mean that those contractual employees under a 5-month contract can also get their contracts renewed after every 5-months?

No

Does this mean that those contractual employees under a 5-month contract can also get their contracts renewed after every 5-months?

No

All along I thought that immediately after the 6-month contract, if without notice, the probationary employee automatically becomes a regular employee….

Yes, if EEe was not appraised of performance standards, evaluated and not given performance feedback on reasonable period, it will be assumed that EEe is performing acceptably. Thus, end of contract can be questioned by EEe.

Yes, if EEe will still be allowed to perform his work and duties on the 6th month anniversary of his employment without prior discussion on the status of his employment
jc January 25, 2012 at 4:21 PM

Hi Sonnie,

My 6 month probationary period is over last December 21, however, I haven’t signed any contract yet but i’m still working with my current company. Does it mean I no longer have a valid contract with my company? If I don’t want to renew my contract can I leave without rendering 30 days or atleast lessen it up to 15 days?
Sonnie January 25, 2012 at 5:25 PM

@JC

You are already considered as “regular employee” in the eyes of the law. Thus, entitled to benefits due for a regular employee.

If you intend to resign, the law states that you have to give your employer 30 days notice. Unless they will agree to a lesser period.
She January 30, 2012 at 11:11 PM

ask q lng po, pano qung ntapos ung 5month contract q nung nov. but im still working for the company until now which is almost feb.? that’s more than 2mos. extention already db? pero wala p aqng pinipirmahang panibagong contract….under agency po aq, am i eligible for an automatic regularization? pls. help me!!! Thanx.
Sonnie February 5, 2012 at 12:30 AM

Hi She,

Id I understand your situation, the company you are assigned at is not your employer. Your employer is the agency, thus, you should inquire with your agency for your regularization status.
frank February 17, 2012 at 8:13 AM

hello

6months po ba or exactly 180days para maging regular na employee?
Sonnie February 17, 2012 at 8:38 AM

most legal opinion would suggest 6th month work anniversary
Gina February 17, 2012 at 11:10 PM

Hi, we have an employee whose probation will end on feb. 29, we plan not to regularize him due to poor performance. The result of his evaluation was not discussed to him yet until now, my question is, can we discuss the result of his evaluation and at the same time notify him that we will not grant him regular employment a week before the end of his 6th month?
cyrhil cezar February 20, 2012 at 4:55 PM

my laban po ba ako sue ko po sila for illegal dismissal..1 year na po ako s company tapos bgla nila ako terminate without any notice… we are signing monthly contract..pero db po dapat regualar n ko.. after 6 months db po dpat automatic regular na ako.
monthly contracts are not legal ???
Sonnie February 20, 2012 at 5:05 PM

@Gina- one of the importance of a timely performance appraisal feed-backing is to avoid Qs of doubt when we make a decision of non-regularization. At least, the concerned manager w/ hr should be able to document discussion of employee below par performance, and the time given to employee to correct these.
Sonnie February 20, 2012 at 5:06 PM

@Cyrhil – pls consult someone from DOLE, they can definitely help you in your situation
Gina February 21, 2012 at 10:32 PM

Thanks Atty. Yes, we have doubts but what i want to know are the legalities. Can we still terminate the employee?

He was given feedback on his performance by his immediate superior several times but only verbal. It was only on his 5th month that he was appraised (documented) but the result until now has not been discussed to him by his immediate superior and we only have 1 week now before the end of his proby.

Thanks again
Gina
Sonnie February 22, 2012 at 7:49 AM

@Gina,

First, I am not a lawyer, just privileged to have been exposed to significant labor issues in my stint as HR Manager.

If you will not regularize employee, the burden to substantiate grounds, is with employer. You cannot prevent employee to Q that before DOLE. When it reached DOLE, unless employee will acknowledge the “verbal” feedback of the immediate boss, you have to substantiate claim that employee did not meet standards.

Get legal advise to guide you on the next steps, because the situation can lead to filing of complaint before DOLE, unless employee concerned will accept it gracefully.

In some companies, performance feed-backing with employee acknowledgment, is being done on 3rd and 5th month. If employee will not be regularized, it is discussed and implemented after the 5th month employment anniversary.
rica February 25, 2012 at 12:38 AM

hi po im working as a developer with a probitionary contract for 5 months.the 5 months ended feb 15 but im still working with them, until feb 24 they told me they will end it up.they didnt called for any performance evalution in the duration of my stay.is it legal to just terminate the contract?telling me cost cutting daw at di nila afford my salary anymore.thanks hope to hear from you soon.
Ninee February 28, 2012 at 6:34 PM

sir how bout in my case I have a 6 months probi contract and it will end this march 7, in my case ako po ang ayaw mag renew nang contract kasi hindi ko gusto ang working environment. do i still need to render how many days before i can leave or hindi na since on that day terminate na yun contract?
Sonnie February 28, 2012 at 8:49 PM

Hi Rica,

The ideal approach is to have expectation leveling at the beginning of employment, then to have at least 2 performance reviews in the duration of proby contract prior to regularization. The 2nd review is on the 4th month, so in case EE will not make it, separation process can be initiated after 4th month and executed before the 5th month.

Expectation leveling and performance reviews should ideally be documented to avoid Qs from EEs who are not happy with non regularization. Most legal minds will agree that automatic regularization happens on the 6th month anniversary of employment
Sonnie February 28, 2012 at 8:50 PM

Hi Ninee,

You need to inform your company of your intent not to continue with your employment, with 30 days notice. That is, if they opted to regularize you. This is to give them ample time to look for your replacement
lara March 1, 2012 at 7:15 PM

Hi Sir,

We are a small company and have a probationary employee whose performance is below acceptable standards, and we are about to give him his 5th month appraisal reflecting his poor performance. We were not able to conduct appraisal on his 3rd month. Although we have been coaching him throughout the 5 months he’s been with us via email, specifically pointing his areas of improvement, his performance did not improve. We plan to proceed with his 5th month appraisal and give him a notice of non-renewal of contract. We have all emails/ messenger transcripts documenting his refusal to follow directions despite coaching and mentoring etc. Is it safe to say that our backs are covered in terms of the legality of our plan of action not to renew his contract? Many thanks!
Sonnie March 5, 2012 at 6:03 PM

@Iarra Performance feed-backing is best done face to face specially if the position concerned is R & F. I am not sure if electronic communication will be given credence by concerned authorities in case his non regularization will be questioned. Nevertheless, you communicated with the employee. Should you proceed with the notice of non renewal, please do it face to face. Thanks
Via March 18, 2012 at 1:22 PM

Hi Sonnie,

I work for a BPO. It is my regularization month this march. My manager have not done any performance feedback prior to this month. What I understand from the labor code of the “security of tenure” is that I am supposed to receive a 3rd month performance review, and it is supposed to be documented. From my understanding also, my goals are supposed to be explained to me and how to reach it to aide me to be eligible for the regularization. However, I have not received any. Would this be deemed illegal should my manager decide to not regularize me. Please help me.

thanks,

via
Sonnie March 18, 2012 at 2:36 PM

Hi Via,

You have basis to seek clarification if decision is not favorable.
Via March 18, 2012 at 7:42 PM

Apparently it is not. I have a colleague who was not regularized. The passing rate is 3.0. He was given 2.85. short of .15. Our metrics were not discussed. We did not have any performance review on our 3rd month or the month prior. The regularization form was given 5 days before his regularization date which is March 17. The parameters were not discussed because our manager had him do his own metrics without any defined weighted average. The form itself was not discussed…and yet only to find out that we will be measured on such. Does this fall to the category of disguised termination? Please help, we are planning to bring this to DOLE.
Via March 18, 2012 at 7:43 PM

can we also base this on the security of tenure?
bimac April 14, 2012 at 11:14 AM

hi sonnie,

question lang po. nagstart po kc ako sa work last aug.31,2011 at nagsign ako as contractual for 3 mos.then lumipas na yung 5 months,may pinapirma ulit sa akin as proby for 3mos..afetr 2 mos po,(last april2 2012) sinerve po yung end of contract ko due to some bad comments na very different dun sa result nung appraisal ko after 3mos…pumapatak po kasi 8 months na akong employed sa company.may mali po ba sa pag EOC nila sa akin? di po ba dapat regular na ako?
please help.

thank you.
bimac
Sonnie April 15, 2012 at 8:35 AM

@Via – Sorry for super late reply. Security of tenure is applied to “regular employees”. But all employees are entitled to due process. In terms of ending probationary employment, the human resources with the immediate head, prior to deployment to the work area, should have discussed the terms of employment, performance expectations, factors and schedule of performance reviews. Result of appraisals should also be discussed.
Sonnie April 15, 2012 at 8:38 AM

@Bimac- a total of probationary employment for non teaching/academic positions is 6 months, wherein common practice is to include the contractual or casual employment. And yes, result of appraisal should be consistent with reason for non regularization.
Maggy April 18, 2012 at 1:57 PM

Hi Sir,

I just wanted to confirmed or discussed the situation and if our action is still in legal process. Right now we have an employee – probationary employee, who will reach his 6 months on May 15, 2012, but the Management already decided now to regularize the said employee, we do monthly evaluation but the sad part of it, his immediate superior gave him a satisfactory ratings, we will now conduct his 5month evaluation, and also planned to discussed to him that we will not be regularize and his contract will end by May 15, 2012, during on his 5th month period he was involve in an accident wherein negligence that cause damage and loss to one of our equipment, which in our rule, since it was a first grave offense he was subject for suspension if proven guilty and that also be one of the reason why the management decided not tp pursue his contract with the company. How can we deliver the Notice of EOC into what grounds?

Thanks
Ryan Jasper April 19, 2012 at 12:52 PM

Hi Sonnie,

I was hired July 2011 by a big bank here in PH, and was regularized by December of 2011. Last March 1, 2012, our department was dissolved and since then, all my work were placed on hold and no new assignment was given to me. There were verbal instructions that I shall be reassigned to a different units and boss, but it were not supported by a written memo.

To cut the story short, I filed my resignation last monday requesting for an immediate termination/ disregard 30 day notice since it was unfair for the bank to pay me without any work. HR said that the 30 day notice could be waived by my immediate superior. My former supervisor approved my immediate resignation only to find out from HR that another manager said that since April 1, I was transferred and supposed to report to her. HR said that I should get her approval but contested that there was no written document / office memo directing me to report to her starting April 1. I have also not signed any transfer form documenting my official transfer from my former boss to the new manager. The new manager and I are not in good terms.

May I know if HR could have that ground not to issue a certificate of clearance since the new manager would by all means not waive my 30 day notice?

Thank you
Sonnie April 19, 2012 at 1:16 PM

H Maggy,

I am a little bit confused with your narration, but this is how I understand your situation:

1. Your management decided not to regularize employee.
2. You are giving monthly evaluation and your immediate head gave employee satisfactory rating.
3. Employee committed grave offense on the 5th month. [am not sure if suspended already or will be suspended]

Please find below my 2 cents:

1. If monthly evaluation is discussed to employee monthly, then he knew he will be regularized given the satisfactory rating for the past 4 months.
2. 5th month evaluation that included a grave offense, should be revised to include the infraction.
3. If offense is not termination in nature, then you cannot terminate employee.
4. To use performance as basis for non regularization, then use the law of averages, add monthly appraisal divide by 5 months. Check if the average grade will merit non regularization then use this as basis.
5. If your management decides to still not regularize employee despite the passing mark, let them understand the risk and get ready for possible complaint and corresponding expense.

Good luck
Sonnie April 19, 2012 at 1:27 PM

Hi Ryan,

On issue of 30 days notice. It can only be waived, aside from waiver from immediate head and hr, thru ART. 285. Termination by employee. – (a) An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

(b) An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes:

1. Serious insult by the employer or his representative on the honor and person of the employee;
2. Inhuman and unbearable treatment accorded the employee by the employer or his representative;

3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and

4. Other causes analogous to any of the foregoing.

more here: http://sesantos.com.ph/2007/06/03/how-to-lose-your-job-part-v-due-process-1/

However, if your company failed to give you a “documented” new appointment and/or transfer papers, you can reason with them to release you without observing 30 days notice.

On the issue of clearance, a clearance is different from certificate of employment. They should not withheld issuing you a COE since it only certifies employment period. But clearance has something to do with your behavior and accountability.

Hope this helps
tats barreiro May 2, 2012 at 11:32 AM

Hi mam ,
good day , I work for a small IT company that sell business applications soft ware and most of the personnel are on contact for (1) one year. I have just recently been given the hr job and am a little confuse about
1. dose 18-A, affect us since we are in the IT industry
2.And secondly some of the contacts have already expired for over a year what dose this
implication do to the status of the personnel.involve?(to date personnel are still working for us)
3.Can I issue new One (1) year contracts to said personnel ?
4. Some of the personnel who have expired contract (over 1 year) I am told have been
regularize(some time ago), question
What should i give them, a certification of regularization or Appointment papers ? (time has
already pass (1yr.) ).
Thanks .Tats
Sonnie May 5, 2012 at 4:43 PM

Hi Tats,

1st and foremost I am a “he”.

Project based employees are for specific projects. It may be extended if specific project was not completed yet. If the skill of project base employee is needed for day to day operations, I suggest you convert employment to regular status.

Likewise, regardless of time lapse, it is better to issue a regular employment contract.
Carla May 10, 2012 at 2:51 PM

Can a probationary employee be terminated even without completing the 6 month period as provided in the contract? Also is it right or legal that the probationary employee be terminated
without prior notice? In this case no evaluation was made even verbal regarding the performance of the probationary employee. Is it legal that the employer will tell the probationary employee that today is your last day and asked to sign a certain memo to that effect?
Sonnie May 10, 2012 at 2:55 PM

Can a probationary employee be terminated even without completing the 6 month period as provided in the contract? YES

Also is it right or legal that the probationary employee be terminated
without prior notice? DUE PROCESS SHOULD BE OBSERVED – whether authorized or just cause
Carla May 10, 2012 at 3:29 PM

If this will be the case, what should the probationary employee do?
Sonnie May 10, 2012 at 4:38 PM

If
1. There is no discussion of performance expectations
2. No performance appraisals was conducted, or this was not discussed with you
3. You are absolutely sure you have not violated company policies, and if you did, the twin notice rule was not observed

You can get help from DOLE

Ending Probationary Employment Without Termination Notice

40 Responses to “Ending Probationary Employment Without Termination Notice”

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