A probationary employee in the Philippines generally cannot be validly terminated for poor performance when the employer never communicated reasonable standards for regularization. Under the Labor Code, the employee must know—at the start of employment—what the employer expects and how the employee will qualify for regular status. When no standards were made known, the employee may be considered a regular employee from the date of engagement.

The issue is not always as simple as checking whether the contract contains numerical targets. Courts examine the entire hiring process, including the offer letter, employment contract, job description, orientation, policies, performance discussions, and the nature of the position. This article explains when unclear standards can make a dismissal illegal, when an employer may still terminate a probationary employee, and what practical steps an employee can take.

What Philippine law says about probationary employment

Article 296, formerly Article 281, of the Labor Code of the Philippines provides that probationary employment generally cannot exceed six months. During that period, the employer may terminate the employee:

For a just cause;
For an authorized cause; or
For failure to qualify as a regular employee under reasonable standards made known at the time of engagement.

The implementing rules go further: when no regularization standards were made known at the required time, the employee is deemed regular.

The Supreme Court has repeatedly described two basic employer obligations:

The employer must communicate reasonable standards for regularization.
The employer must communicate them at the time the employee is engaged.

Failure to satisfy either requirement can result in the employee being treated as regular from the beginning of employment.

Probationary status therefore does not mean that an employer can dismiss someone at will. A probationary employee has security of tenure, although the employer is given a legitimate opportunity to assess whether the employee is suitable for permanent employment.

The direct answer: Can the employee be terminated without clear standards?

The answer depends on the employer’s stated reason.

Reason for termination	Are performance standards required?	Basic procedure
Failure to qualify for regular employment	Yes. Reasonable standards must have been communicated	Written notice stating the failure to qualify
Serious misconduct, fraud, willful disobedience, or another just cause	Not as regularization standards, but the employer must prove the offense	Notice of charge, opportunity to explain, and notice of decision
Retrenchment, redundancy, closure, or another authorized cause	Performance standards are not the basis	Statutory notices and applicable separation pay
Expiration of the alleged probationary period	Expiration alone does not automatically justify dismissal	Employer must still show a valid legal basis and timely termination

If the employer says, “You did not meet our expectations,” but cannot show what those expectations were, when they were communicated, and how the employee failed them, the termination may be illegal.

However, the employee does not automatically win simply because the contract lacks a detailed scorecard. Courts look at whether the standards were reasonably communicated through other documents and circumstances.

What counts as a reasonable performance standard?

A reasonable standard should be connected to the employee’s actual position and should give the employee a fair opportunity to understand what must be accomplished.

Depending on the job, valid standards may include:

Sales quotas or revenue targets;
Accuracy, productivity, or output requirements;
Attendance and punctuality expectations;
Customer-service ratings;
Compliance with safety or regulatory procedures;
Completion of required training or certifications;
Leadership, judgment, communication, or team-management competencies;
Quality standards for reports, designs, audits, or other work products;
Compliance with a job description and clearly explained responsibilities.

The law does not require every standard to be numerical. For example, the performance of a senior manager, lawyer, artist, journalist, or department head may involve judgment and discretion that cannot be fully reduced to quotas.

In Abbott Laboratories, Philippines v. Alcaraz, the Supreme Court recognized that an employer may satisfy the requirement by making reasonable efforts to explain the employee’s duties, responsibilities, probationary status, and expectations. A detailed job description, orientation, performance modules, and employment documents may collectively establish that the employee knew what was expected. (Lawphil)

More recently, in Reyes v. Samsung Electronic Phils. Corp., G.R. No. 258269, the Court reiterated that standards must be assessed in the context of the employee’s duties. For high-level managerial work, adequate performance of clearly communicated responsibilities may operate as an inherent qualitative standard, even when every aspect of “effective management” was not expressed through precise figures.

Standards do not always have to appear in one document

An employer may rely on a combination of:

A signed offer letter;
A probationary employment contract;
A job description;
An employee handbook or code of conduct;
Orientation materials;
Key performance indicators;
Training plans;
Emails explaining targets;
Performance-evaluation forms;
Meeting records showing that expectations were discussed.

A general statement such as “performance must be satisfactory” is much stronger when accompanied by a clear rating system, job duties, passing score, or measurable expectations. Standing alone, it may be too vague.

Standards created after hiring are questionable

An employer should not wait until the fifth or sixth month to reveal the criteria that will supposedly determine regularization. A rating form introduced only after management has decided to terminate the employee can look like an after-the-fact justification.

In C.P. Reyes Hospital v. Barbosa, the Supreme Court found the employee’s dismissal baseless where the evidence showed that she had obtained the passing grades required under her contract and the employer relied on adverse reports prepared only after she had already been terminated. (Supreme Court of the Philippines)

Slightly delayed communication is not automatically fatal

Although the law refers to the time of engagement, the Supreme Court has sometimes applied a reasonableness test. In Enchanted Kingdom, Inc. v. Verzo, the employee received the employment letter and detailed job description about 14 days after starting work. The Court considered this substantial compliance because the employee received the information during the early stage of probation and had adequate time to understand the expectations. (Lawphil)

This does not give employers permission to delay standards until termination is near. It simply means that courts may consider whether the employee received a genuine, early, and meaningful opportunity to understand the requirements.

When unclear standards make the employee regular

When the employer cannot prove that reasonable standards were communicated, the legal consequence can be significant: the employee may be considered a regular employee from the time of engagement.

Regular status means the employee can no longer be dismissed merely for “failure to pass probation.” The employer must instead prove a just or authorized cause recognized by law and comply with the corresponding procedure.

For example:

Ana’s contract states that she will be probationary for six months but contains no job description, performance criteria, passing score, or reference to any evaluation policy. She receives no orientation or written targets. During her fifth month, HR gives her a failing score based on a form she has never seen.

If the employer relies only on that score, Ana may argue that she was already regular because no standards were communicated when she was hired. Her dismissal would then have to be justified under the rules applicable to regular employees.

By contrast:

Ben’s contract identifies him as probationary, attaches a detailed job description, sets a minimum monthly sales target, requires an 85% compliance rating, and explains that repeated customer complaints will affect regularization. He signs the documents and receives monthly evaluations.

Ben may validly be denied regularization if the employer can prove, through reliable records, that he failed the stated standards.

Exceptions and qualifications employees should understand

Self-descriptive jobs

The Supreme Court has recognized that some jobs are sufficiently self-descriptive, such as those of a cook, driver, messenger, or household worker. Basic duties may be obvious from the position itself.

Even then, an employer should not treat the exception as unlimited. A driver may reasonably be expected to drive safely and follow traffic laws, but a hidden fuel-efficiency target, delivery quota, or customer-rating requirement should still be communicated if it will determine regularization.

Basic knowledge and common sense

An employee cannot use the lack of an expressly written rule to excuse conduct plainly contrary to basic workplace expectations.

Examples include:

A driver operating a vehicle recklessly;
A cashier taking company money;
An employee repeatedly ignoring established work hours;
A safety officer disregarding obvious hazards;
A manager making unauthorized commitments that expose the company to serious risk.

In Enchanted Kingdom v. Verzo, the Court explained that regularization rules should not excuse conduct contrary to basic knowledge, professional competence, or common sense. It also recognized punctuality and reasonable work discipline as expectations that ordinarily apply to employees. (Lawphil)

Duties and standards are related but not always identical

A job description tells the employee what work must be performed. A performance standard explains what level of performance is acceptable.

For some positions, a detailed job description may effectively communicate the standard. For others, it may not.

“Prepare monthly reports,” for example, does not necessarily tell the employee:

When each report is due;
What format must be used;
What accuracy rate is required;
Who will evaluate it;
What score is necessary for regularization.

The more measurable the employer’s expectations are, the stronger the reason for communicating them specifically.

Proper procedure for terminating a probationary employee

The procedure depends on the ground used.

Termination for failure to meet regularization standards

When the employer relies solely on failure to qualify, the usual two-notice disciplinary procedure does not apply. The employer must serve a written notice informing the employee that the employee failed to meet the reasonable standards for regularization.

The notice should identify:

The standards applied;
The employee’s evaluation results;
The specific deficiencies;
The effective date of termination; and
The documents or incidents supporting the decision.

The implementing rules require written notice within a reasonable time from the effective date of termination. As a practical matter, giving the notice before or on the termination date is safer and fairer than issuing it afterward. The Supreme Court has continued to recognize this distinct procedure for performance-based non-regularization.

Termination for a just cause

If the real allegation is misconduct rather than failure to qualify, the employer must follow the just-cause procedure.

This normally requires:

A first written notice describing the charge and supporting facts;
A reasonable opportunity for the employee to submit an explanation and respond to the evidence;
An evaluation of the employee’s defense; and
A second written notice stating the employer’s decision.

An employer should not label misconduct as “failure to meet standards” merely to avoid giving the employee an opportunity to defend against an accusation.

For example, “poor teamwork” may be evaluated as a performance issue. But an accusation that the employee threatened a coworker, falsified a report, or stole company property is a disciplinary charge that ordinarily requires just-cause due process.

Termination for an authorized cause

Probationary employees may also be affected by redundancy, retrenchment, closure, installation of labor-saving devices, or disease under the applicable Labor Code provisions.

These grounds have separate requirements, which may include:

Written notice to the employee;
Written notice to the Department of Labor and Employment;
A statutory notice period;
Proof that the authorized cause is genuine; and
Payment of the required separation pay, when applicable.

Probationary status does not allow the employer to bypass those requirements.

How to assess whether your termination may be illegal

Review the situation in this order:

Identify the employer’s exact ground. Look at the termination letter. Does it say failure to qualify, misconduct, redundancy, expiration of contract, or something else?
Find the standards supposedly applied. Review the offer, contract, job description, handbook, emails, onboarding materials, targets, and evaluation forms.
Check when you received them. A document produced only near or after termination is less persuasive than one received during hiring or early probation.
Check whether you acknowledged receipt. A signature can prove receipt, although it does not automatically prove that vague or unreasonable standards were adequately explained.
Compare the evaluation with the original standards. The employer should not terminate you for failing a criterion that was never part of the original expectations.
Look for contemporaneous evidence. Genuine coaching emails, monthly reviews, warnings, work reports, and meeting notes are usually more reliable than affidavits or evaluations prepared after the decision to dismiss.
Check the effective date. If you were allowed to continue working beyond the valid probationary period without lawful termination, you may already have become regular.

Documents an employee should preserve

Document	Why it matters
Offer letter and employment contract	Shows probationary status, duration, and stated conditions
Job description	Identifies duties communicated at hiring
Handbook and code of conduct	May contain standards or workplace rules
Orientation materials	Shows what was explained at the start
Emails, chats, and meeting notes	May prove targets, feedback, or changes in expectations
Performance evaluations	Shows ratings, criteria, dates, and evaluator comments
Coaching or warning records	Shows whether deficiencies were raised while correction was still possible
Termination notice	Identifies the employer’s official ground
Payslips and payroll records	Useful for computing backwages and other claims
Attendance and time records	Relevant when tardiness or absence is alleged
Work outputs and commendations	May contradict claims of poor performance
Certificate of employment and final-pay documents	Helps establish employment dates and post-termination payments

Preserve original electronic files where possible. Screenshots are useful, but complete email threads, attachments, and exported chat records provide better context.

What to do after being terminated

1. Ask for the decision in writing

Request a copy of:

The termination notice;
The performance standards;
Your evaluation forms;
The computation of your final pay; and
Any document you supposedly signed acknowledging the standards.

A calm written request creates a record and reduces later disputes about what HR said verbally.

2. Do not sign a resignation you did not intend to make

Some employees are told to “resign voluntarily” so the company can issue a favorable certificate of employment. A resignation can complicate an illegal-dismissal claim, especially when the document states that the employee is leaving freely.

If a document is only an acknowledgment of receipt, read it carefully. An acknowledgment should not be rewritten as an admission that the evaluation was fair or that the termination was voluntary.

A quitclaim is not automatically valid merely because it was signed. Courts examine whether it was voluntary, reasonable, and supported by adequate consideration. Still, challenging a signed quitclaim may make the case more difficult.

3. File a Request for Assistance under SEnA

The Single Entry Approach, or SEnA, is the government’s mandatory conciliation-mediation process for many labor disputes.

A Request for Assistance may be filed:

Online through the DOLE Assistance for Request Management System;
At a DOLE regional, provincial, or field office;
At an NLRC Regional Arbitration Branch; or
At another authorized Single Entry Assistance Desk.

Under the current SEnA framework, the parties generally undergo a 30-calendar-day conciliation-mediation period. The process is intended to explore settlement before the dispute becomes a full labor case. (DOLE ARMS)

An employee may ask for matters such as:

Reinstatement;
Backwages;
Unpaid salary;
Pro-rated 13th-month pay;
Leave or holiday-pay deficiencies;
Final pay; or
A mutually acceptable separation package.

An illegal-dismissal complaint does not ordinarily begin in the barangay. Labor Arbiters have jurisdiction over termination disputes arising from an employer-employee relationship.

4. Proceed to the NLRC if no settlement is reached

If SEnA ends without settlement, the employee may file a formal complaint before the appropriate NLRC Regional Arbitration Branch.

The parties will ordinarily be directed to attend mandatory conferences and submit position papers with supporting evidence. Unlike an ordinary trial court case, many labor disputes are decided mainly from written submissions, affidavits, and documents. The quality and organization of the employee’s evidence can therefore be critical.

The 30-day SEnA stage is relatively defined. A contested NLRC case usually takes longer—often several months at the Labor Arbiter level—and appeals to the NLRC, Court of Appeals, or Supreme Court can substantially extend the dispute.

5. Observe the filing deadlines

An illegal-dismissal claim is generally subject to a four-year prescriptive period because it involves an injury to the employee’s rights. Separate money claims arising from employment are generally subject to the three-year period under Article 306 of the Labor Code. (Lawphil)

Employees should not wait for those periods to nearly expire. Evidence becomes harder to obtain, witnesses leave the company, and electronic records may be deleted.

Who must prove the legality of the termination?

The employee must first establish that a dismissal actually occurred. Once dismissal is shown, the employer generally carries the burden of proving that the termination was based on a valid cause.

For performance-based non-regularization, the employer should be able to prove:

The employee was validly hired as probationary;
The employee knew the duration of probation;
Reasonable regularization standards were communicated;
The communication occurred at hiring or during a reasonable early stage;
The evaluation genuinely applied those standards;
The employee actually failed them; and
Proper written notice was served.

A bare statement that management “lost confidence” in a probationary employee is not enough when the alleged loss of confidence has no factual or documentary basis.

Possible remedies for illegal dismissal

When the dismissal is declared illegal, possible remedies include:

Reinstatement without loss of seniority rights;
Full backwages;
Separation pay in lieu of reinstatement when reinstatement is no longer feasible;
Unpaid wages and statutory benefits;
Attorney’s fees in proper cases; and
Moral or exemplary damages when bad faith, oppression, or similarly wrongful conduct is proven.

In C.P. Reyes Hospital v. Barbosa, the Supreme Court clarified that the backwages of an illegally dismissed probationary employee are not automatically limited to the unexpired portion of the probationary period. Backwages may run from the time compensation was withheld until actual reinstatement. When reinstatement is no longer feasible, they may be computed until the decision becomes final. (Supreme Court of the Philippines)

The exact award depends on the evidence, the relief requested, whether reinstatement remains practical, and whether the employee earned income after dismissal.

Common probationary-employment scenarios

“The contract says I am probationary, but it lists no standards.”

The word “probationary” alone is not enough. The employer should show what standards were communicated through the contract, job description, orientation, policies, or other evidence.

“I signed a handbook acknowledgment.”

The effect depends on what the handbook contains and whether it was actually made available. A signature acknowledging a handbook can support the employer, but the handbook must still contain relevant and understandable standards.

“My job description was clear, but there was no passing score.”

A passing score is not required in every job. Courts may accept clearly explained duties and qualitative expectations, especially for professional or managerial roles. The employer must still show a fair, good-faith assessment rather than a purely subjective decision.

“The company changed my targets during probation.”

Employers may reasonably adjust assignments as business needs change, but a major new target should be clearly communicated and the employee should receive a realistic opportunity to meet it. A retroactive target should not be used to justify a decision already made.

“I received a failing evaluation for the first time on my last day.”

That timing raises legitimate questions. Ask when the evaluation was prepared, what source records were used, whether the same form was disclosed earlier, and whether the stated criteria match the standards given at hiring.

“I was terminated verbally and told not to report the next day.”

For failure to qualify, written notice is required. Preserve messages, record the date and names of the people present, and immediately request written confirmation from HR.

“My six months ended, but I continued working.”

An employee allowed to work beyond the valid probationary period is generally considered regular. An employer should not keep the employee working and later claim that the probationary contract simply expired. Article 296 expressly protects employees allowed to continue after probation. (Lawphil)

“I am a foreign national working in the Philippines.”

Foreign nationality does not by itself remove Labor Code protection from an employee working under a Philippine employment relationship. However, an Alien Employment Permit, work visa, assignment agreement, or foreign-law contract may affect issues such as the proper employer, available forum, and feasibility of reinstatement. Employment and immigration documents should be reviewed together.

Frequently Asked Questions

Can a company terminate a probationary employee at any time?

No. Probationary employees are not employed at will. The employer must rely on a just cause, authorized cause, or failure to meet reasonable standards communicated for regularization.

Does the employer have to put performance standards in the contract?

Not necessarily. Standards may appear in a job description, handbook, orientation materials, target sheet, evaluation policy, or other documents. However, written standards are far easier for the employer to prove and for the employee to understand.

Are verbal performance standards valid?

They can be considered, but they are difficult to prove. Courts will examine the credibility of witnesses and whether emails, meeting notes, evaluations, or conduct support the claim that the standards were explained.

Is a performance improvement plan required before termination?

Not automatically. The Labor Code does not require every employer to place a probationary employee on a performance improvement plan. However, if the company’s own policy or contract promises one, failure to follow that procedure may support the employee’s claim.

Does the employer have to give warnings before non-regularization?

Not always. When termination is based solely on failure to meet communicated standards, the usual disciplinary two-notice process does not apply. Nevertheless, timely evaluations and feedback help show that the assessment was genuine and fair.

Can poor attitude be a valid reason for non-regularization?

Yes, when attitude, professionalism, teamwork, leadership, or customer relations are reasonably connected to the position and were communicated or are inherent in clearly explained duties. The assessment must have a factual basis and should not be a pretext for discrimination or retaliation.

Can I be terminated even if I reached my sales quota?

Possibly. A sales employee may also be evaluated on compliance, customer complaints, reporting accuracy, attendance, ethics, or teamwork if those were part of the communicated standards. An employer cannot rely on undisclosed criteria after the fact.

Am I automatically regular after six months?

An employee who is allowed to work after the valid probationary period is generally considered regular. Careful computation is important because Supreme Court jurisprudence has treated the ordinary six-month period as 180 days in relevant cases, subject to legally recognized exceptions and the particular employment arrangement.

Can the company extend my probation because I failed?

An employer cannot unilaterally use an extension to avoid regularization. An extension may be recognized only in limited circumstances, such as a valid voluntary agreement that genuinely gives the employee another opportunity to qualify, rather than an arrangement imposed to defeat security of tenure.

Where should I file an illegal-dismissal complaint?

Begin with a SEnA Request for Assistance through DOLE ARMS or an authorized Single Entry Assistance Desk. If the dispute is not settled, the complaint may proceed before the appropriate NLRC Regional Arbitration Branch.

Key Takeaways

A probationary employee cannot ordinarily be terminated for poor performance under standards that were never reasonably communicated.
When no regularization standards were made known, the employee may be deemed regular from the date of engagement.
Standards do not always need numerical targets, but they must be reasonable, job-related, and understandable.
Contracts, job descriptions, orientation materials, emails, handbooks, and evaluation systems may collectively prove that standards were communicated.
Courts recognize limited exceptions for self-descriptive jobs, basic common sense, and qualitative professional or managerial duties.
Failure to qualify generally requires written notice, while a just-cause accusation requires an opportunity to answer the charge.
Preserve employment documents and electronic records before filing through SEnA and, if necessary, the NLRC.
An illegally dismissed probationary employee may receive reinstatement, backwages, or separation pay in lieu of reinstatement.