Dear PAO,

I was a probationary employee in a call center company. On my 5th month, the Human Resource Manager (HRM) called me to her office and informed me that I will not be regularized and that my employment will be terminated. I was shocked as I was never late, and my evaluations during my 3rd month of employment showed that I passed their standards. The HRM, likewise, did not show me any evaluation for my 5th month of employment.

What are my rights as a probationary employee? I felt that I was wrongly terminated by them.

Sherwin

Dear Sherwin, Per Article 296 [281] of the Labor Code of the Philippines, probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement specifying a longer period. The services of an employee, who has been engaged on a probationary basis, may be terminated only for 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. Thus, an employee who is allowed to work after a probationary period shall be considered a regular employee.

Nonetheless, probationary employees may only be terminated for just and authorized causes, or failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to their employee at the time of engagement. As declared by the Supreme Court in Moral vs. Momentum Properties Management Corp., 06 March 2019, through Associate Justice Antonio Carpio: “A probationary employee enjoys security of tenure, although it is not on the same plane as that of a permanent employee. Other than being terminated for a just or authorized cause, a probationary employee may also be dismissed due to his or her failure to qualify in accordance with the standards of the employer made known to him or her at the time of his or her engagement. Hence, the services of a probationary employee may be terminated for any of the following: (1) a just cause; (2) an authorized cause; and (3) when he or she fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.” In your letter, you mentioned that you were never late, and that you passed your third month evaluation. However, no evaluation or explanation was given to you when your probationary employment was terminated.

As such, assuming that there are no just and authorized causes for your termination, the act of your employer in terminating your probationary employment without apprising you on your performance after your third month of employment may qualify as illegal dismissal. You may file the necessary action with the National Labor Relations Commission (NLRC).

If the NLRC rules in your favor, you will be entitled to back wages from the time your compensation was withheld, until the time you are actually reinstated to your position, or in case reinstatement is not feasible, until the decision reaches its finality. As declared by the Supreme Court in C.P. Reyes Hospital, et al. vs. Geraldine M. Barbosa, 16 April 2024, through Associate Justice Antonio Kho Jr.: “Therefore, Barbosa should be entitled to back wages from the time compensation was withheld up to her actual reinstatement. In this case, however, both the LA and the CA recognized that reinstatement was no longer feasible due to the strained relations between the parties, which this Court respects.

“Hence, back wages must be awarded up to the finality of the Court’s Decision. However, the Court does not agree with the CA that the award must be reckoned from the date of notice of Barbosa’s dismissal, Nov. 29, 2013. Rather, it must be computed from the time compensation was withheld. The evidence on record shows that the effective date of the termination is Dec. 30, 2013. “Accordingly, substantial evidence was presented which Barbosa did not rebut — that she received her final salary, covering Dec. 16 to 31, 2013, and prorated 13th month pay, totaling P5,135.86. This pay was reflected in Check Voucher No. 43285122 signed by Barbosa. Thus, back wages should be computed from Jan. 1, 2014, when compensation was withheld from Barbosa, until finality of the Court’s Decision.” We hope that we are 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.

We appreciate your trust and support.

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].