Dear PAO,

A BPO company hired me as a process associate. After six months, our team leader informed me that I did not meet the company’s qualifications for regularization. However, since my performance statistics were improving, the team leader offered to extend my probationary status by one more month, and I agreed. Can I be considered a regular employee since I already finished my probationary period of six months?

Jen

Dear Jen,

Probationary employment allows the employer to evaluate whether an employee is suited for regular employment in the business. As a general rule, probationary employment shall not exceed six months from the date the employee started working. This is clear from Article 281 of the Labor Code, which provides that:

“ART. 281. Probationary Employment. – 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.”

However, the Supreme Court recognized certain exceptions to the general rule. The case of Mariwasa Manufacturing, Inc. v. Leogardo (GR 74246, Jan. 26, 1989, Ponente: Chief Justice Andres Narvasa) explained:

“For aught that appears of record, the extension of Dequila’s probation was ex gratia, an act of liberality on the part of his employer affording him 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. The law, surely, was never meant to produce such an inequitable result.”

In your case, you are not yet considered a regular employee despite the fact that you already completed your six-month probationary period. You were only given an extension to prove that you can perform within the standards of your company. As stated in the above-mentioned case, this was only an act of liberality on the part of your employer. This is especially true since your employment extension with the company was expressly agreed upon as probationary. Nonetheless, it is imperative upon your employer to prove that the extension of your probationary period falls within the exception.

This opinion is solely based on the facts you have narrated and our appreciation of the same. Thus, the opinion may vary when the facts are changed or further elaborated. We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].