Ending Probationary Employment Without Termination Notice

9 Comments

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

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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:

1. Discussion of employment standards/expectation levelling
2. Job description
3. Performance appraisal
4. Employment contracts and
5. 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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9 Responses to “Ending Probationary Employment Without Termination Notice”

1. 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

2. 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?

3. 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.

4. 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….

5. 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

6. 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?

7. 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.

8. 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.

9. 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.