In August 2022, I wrote an article on probationary employment. The discussions centered mainly on the issues arising from the essential requirements under Article 296 of the Labor Code, i.e., that the employee must be apprised of the regularization standards at the time of his/her engagement, and that the probationary period must not exceed six months. I did mention, however, that there are other issues surrounding probationary employment but, due to space constraints, the same were not discussed in the said article. Hence, this sequel.
There may be a situation where the employee is put on probation for five months and then separated, only to be rehired for another five months of probationary employment, and again separated, and so on and so forth. This scheme, according to the Supreme Court, is clearly intended to avoid the onset of regular employment, and thus, should not be allowed.
In Lina B. Octaviano vs. NLRC, et al. (G.R. No. 88636, Oct. 3, 1991), the employee therein was hired as a component mechanic and issued temporary employment as such from Nov. 21, 1984 up to May 21, 1985. She was, however, made to work, in fact, as a secretary and parts clerk. On May 22, 1985, she was extended another contract of employment providing a probationary period of six months. On Nov. 21, 1985, she was separated, as management decided to end her probationary employment. On Jan. 20, 1986, she was rehired as a parts clerk and was issued a six-month probationary employment. On June 5, 1986, she was again dismissed. The Court saw “these successive hirings and firings as a ploy to avoid the obligations imposed by law on employers for the protection and benefit of probationary employees xxx.”
Octaviano involved successive probations. What if there was a gap in the hirings, say three months?
Fixed-Term and Project Employments not Subject to Probation?
Manalo, et al. vs. TNS Philippines, Inc. (G.R. No. 208567, Nov. 26, 2014) was direct in saying that “project employment and probationary employment are distinct from one another and cannot co-exist with each other.”
How about fixed-term employment? In Servidad vs. NLRC, Innodata Philippines, Inc., et al. (G.R. No. 128682, March 19, 1999), the Court held that if the contract was really for a fixed term, the company should not be given the discretion to dismiss the employee during the agreed period of employment for reasons other than the just and authorized causes under the law. The language of the contract in Servidad is a double-bladed scheme to block the acquisition of the employee of tenurial security. Thereunder, the company has two options — separate the employee by reason of expiration of contract, or it may use “failure to meet work standards” as the ground for the employee’s dismissal. In either case, the tenor of the contract jeopardizes the right of the worker to security of tenure. The Court, however, was not as direct in Servidad as in Manalo.
May an employer engage someone as a trainee prior to engaging him/her as a probationary employee? The answer is yes and no.
If the training takes the form of an apprenticeship (under the Technical Education and Skills Development Authority or TESDA, or the Department of Labor and Employment) or training under the Dual Training System Act (Republic Act No. 7686), or even a Student Internship Program (pursuant to Commission on Higher Education Memorandum Order 104-17), the employer may subsequently engage the trainee as a probationary employee. The training, being valid and authorized, is separate and distinct from employment.
However, if the training is not under any of the foregoing, even if the employee agrees, the employer cannot engage him/her first as a trainee and thereafter a probationary employee. In Holiday Inn Manila vs. NLRC (Holiday Inn) (G.R. No. 109114, Sept. 14, 1993), the Court considered the complainant’s three-week on-the-job training (OJT) period as her probationary employment period. The Court said that the complainant was certainly under observation during her OJT such that if her services proved unsatisfactory, she could have been dropped anytime during said period; and when her services were continued after her training, the employer effectively recognized that she had passed probation and was qualified to be a regular employee. Thus, the complainant attained regular employment status when she was formally placed under probation after her OJT. Similarly, in Oyster Plaza Hotel, et al. vs. Melivo (G.R. No. 217455, Oct. 5, 2016), the training period of three months was considered as the employee’s probationary employment period.
Given the foregoing, can the employer subsume the training period within the probationary period of six months, effectively making the training as part of the probationary employment and consider satisfactory performance during the training as one of the standards for regularization? This is an interesting topic to discuss.
This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.
Neptali B. Salvanera is a partner of the Labor and Employment Department (LED) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.