Dear PAO,

After two years of hard work, my friend Enoch and I, finally received our programming certifications from a globally-recognized software company, Since we grew fond of each other during our crash course, we applied for work in the same I.T. company, We were hired on probation for six months. On the expiration of the probationary period, he was presented with a job offer, and I got an “extension.” The gist of the letter was that I still have not met all job requirements and that, if I am willing and interested, the company will extend my probationary employment to give me a chance to further demonstrate my capabilities. Can my employer lawfully do this?

Marcus

Dear Marcus,

Article 296 of the Labor Code of the Philippines, as amended, states that 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.”

The Supreme Court enunciated in Myra M. Moral v. Momentum Properties Management Corporation (G.R. No. 226240, March 06, 2019, penned by Retired Honorable Associate Justice Antonio T. Carpio) that “[a] probationary employee is one who is placed on trial by an employer, during which the latter determines whether or not the former is qualified for permanent employment. By virtue of a probationary employment, an employer is given an opportunity to observe the fitness and competency of a probationary employee while at work. During the probationary period of employment, an employer has the right or is at liberty to decide who will be hired and who will be denied employment.”

As can be gleaned above, the general rule is that probationary employment should not go beyond six (6) months and an employee who is allowed to work after a probationary period shall be considered a regular employee.

As an exception to the general rule, the Supreme Court in Mariwasa Manufacturing Inc. v. Hon. Vicente Leogardo, Jr. and Joaquin A. Dequila (G.R. No. 74246, January 26, 1989, penned by the late Honorable Former Chief Justice Andres R. Narvasa) pronounced that an extension of the probationary employment was “an act of liberality on the part of his employer affording [the probationary employee] a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employer’s account to compel it to keep on its payroll one who could not perform according to its work standards.” In the abovementioned Mariwasa case, due to the probationary employee’s initial inability to meet the standards set by the employer, the period of probation was extended to give him a chance to prove his worth.

Applying the foregoing to your circumstances, if the “extension” of your probationary employment is a guise to circumvent the provisions of the Labor Code, particularly during the period of probation, then your employer will be liable for violating the law. However, if your employer has a legal basis, i.e., you failed to meet the standards, then the extension of your probationary employment will be considered an act of benevolence, a lawful action to give you a chance to prove that you are worthy of regularization instead of dispensing with your service.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.