A Legal Article in the Philippine Context

I. Introduction

A probationary employee in the Philippines is not a “temporary worker” who may be dismissed at the employer’s whim. Although probationary employment is a trial period, it is still employment protected by law. A probationary employee has security of tenure during the probationary period and may be dismissed only for lawful grounds and with observance of due process.

The short answer is: a probationary employee generally cannot be terminated without notice. The type of notice required depends on the reason for termination. If the termination is based on a just cause, the employer must observe procedural due process, usually through the two-notice rule. If the termination is based on failure to meet reasonable standards for regularization, the employee must still be informed of the employer’s decision within the probationary period. If the termination is based on authorized causes, statutory written notices must be given to both the employee and the Department of Labor and Employment.

Failure to give proper notice may expose the employer to liability for illegal dismissal, nominal damages, backwages, reinstatement or separation pay, and other monetary claims, depending on the circumstances.

II. What Is Probationary Employment?

Probationary employment is a form of employment where the employee is placed under observation for a limited period so the employer may determine whether the employee is qualified for regular employment.

Under Philippine labor law, probationary employment generally cannot exceed six months from the date the employee started working, unless a longer period is allowed by law, required by the nature of the work, or voluntarily agreed upon under valid circumstances, such as certain training or apprenticeship arrangements.

The purpose of probationary employment is to allow the employer to evaluate whether the employee meets the standards required for the position. These may include performance, attitude, attendance, work quality, productivity, discipline, teamwork, professionalism, technical skill, and compliance with company policies.

However, probationary status does not remove the employee from the protection of the Labor Code. A probationary employee is still an employee.

III. Security of Tenure of Probationary Employees

Security of tenure means that an employee cannot be dismissed except for a lawful cause and after compliance with due process.

Probationary employees enjoy security of tenure, but in a qualified sense. They may be terminated during the probationary period for:

Just causes, such as serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud, breach of trust, commission of a crime against the employer or the employer’s family or representative, and analogous causes;
Authorized causes, such as redundancy, retrenchment, closure, installation of labor-saving devices, or disease under the Labor Code;
Failure to qualify as a regular employee based on reasonable standards made known to the employee at the time of engagement.

Thus, probationary employees may be dismissed more easily than regular employees in the sense that failure to meet regularization standards is a valid ground. But they may not be dismissed arbitrarily, secretly, retroactively, or without any basis.

IV. The General Rule: Notice Is Required

A probationary employee should not be terminated without notice.

Notice serves several purposes:

It informs the employee of the reason for dismissal;
It gives the employee an opportunity to respond when the dismissal is disciplinary;
It prevents arbitrary or surprise termination;
It creates a record of the employer’s basis for dismissal;
It allows review of whether the dismissal was lawful.

The required form and timing of notice depend on the cause of termination.

V. Termination for Just Cause During Probation

A probationary employee may be dismissed for just causes under the Labor Code. Examples include:

Serious misconduct;
Willful disobedience of lawful and reasonable orders;
Gross and habitual neglect of duties;
Fraud or willful breach of trust;
Commission of a crime against the employer, the employer’s family, or authorized representative;
Other analogous causes.

When dismissal is based on a just cause, the employer must observe procedural due process.

The Two-Notice Rule

For just-cause termination, the employer must generally issue:

1. First Written Notice, or Notice to Explain

This notice must inform the employee of the specific acts or omissions charged against them. It should be detailed enough to allow the employee to prepare a meaningful explanation.

A vague notice such as “you violated company policy” or “you failed probation” may be insufficient if the real basis is misconduct or disciplinary fault.

The first notice should state:

The specific incident;
Date, time, and place, if applicable;
The company rule allegedly violated;
The possible consequence, including dismissal if applicable;
A reasonable period to submit a written explanation.

2. Opportunity to Be Heard

The employee must be given a real opportunity to explain. This does not always require a formal trial-type hearing, but a hearing or conference may be necessary when requested, when company rules require it, or when substantial factual issues exist.

The employee may submit a written explanation, present evidence, and respond to the accusations.

3. Second Written Notice, or Notice of Decision

After evaluating the employee’s explanation and the evidence, the employer must issue a written decision stating whether the employee is dismissed and why.

The second notice should explain the employer’s findings and the basis for the penalty.

VI. Termination for Failure to Meet Probationary Standards

The most distinctive ground for terminating a probationary employee is failure to qualify as a regular employee in accordance with reasonable standards made known at the time of engagement.

This means three requirements are important:

There must be standards for regularization;
The standards must be reasonable;
The standards must have been communicated to the employee at the time of hiring or engagement.

If these requirements are not met, the probationary employee may be deemed a regular employee from the beginning or may be illegally dismissed if terminated for failing standards that were never properly communicated.

VII. Must There Be Notice for Failure to Meet Standards?

Yes. Even if the employee is terminated for failure to meet probationary standards, the employer should give written notice informing the employee that they did not qualify for regular employment.

This is not exactly the same as the two-notice disciplinary process required for just-cause dismissal. Failure to meet standards is not necessarily misconduct. It may simply mean that the employee’s performance, skill, productivity, attitude, attendance, or suitability did not meet the company’s regularization criteria.

However, the employer must still communicate the decision. The termination should not be silent, implied, or undocumented.

The notice should ideally state:

That the employee is still within the probationary period;
The standards or criteria that applied;
The areas where the employee failed to qualify;
The effective date of termination;
The final pay process;
Instructions on clearance, return of company property, and release of documents.

VIII. Notice Must Be Given Before the End of Probation

The timing of the notice is critical.

If the probationary period is six months, and the employer allows the employee to continue working beyond the probationary period without valid termination, the employee may become regular by operation of law.

Thus, if the employer decides not to regularize a probationary employee, the decision should be made and communicated before the probationary period expires.

An employer should not wait until after the six-month period and then claim that the employee failed probation. Once the employee becomes regular, they may only be dismissed under the rules applicable to regular employees.

IX. The Importance of Communicating Standards at the Time of Engagement

A probationary employee may only be validly terminated for failure to meet standards if those standards were made known at the time of engagement.

This is a recurring issue in Philippine labor disputes. Employers sometimes argue that the employee failed probation, but cannot prove that the standards were communicated at hiring. In such cases, the dismissal may be invalid.

Standards may be communicated through:

Employment contract;
Appointment letter;
Job offer;
Probationary employment agreement;
Employee handbook;
Job description;
Performance evaluation form;
Key performance indicators;
Orientation documents;
Written acknowledgment by the employee.

The employer should keep proof that the employee received and understood the standards.

X. What Are Reasonable Standards?

Reasonable standards are criteria related to the job and the employer’s legitimate business needs.

Examples include:

Quality of work;
Productivity;
Attendance and punctuality;
Compliance with safety rules;
Customer service;
Sales targets;
Technical competence;
Accuracy;
Ability to follow instructions;
Professional conduct;
Teamwork;
Adaptability;
Completion of training requirements;
Communication skills;
Work attitude.

Standards should not be arbitrary, discriminatory, impossible, or unrelated to the job.

For example, it may be reasonable to require a sales employee to meet defined sales targets. It may be reasonable to require a cashier to maintain accuracy in handling money. It may be reasonable to require a driver to comply with safety rules and licensing requirements.

But it may be unreasonable to dismiss an employee for failing secret standards, changing targets without notice, or subjective impressions unsupported by facts.

XI. Performance Evaluation During Probation

A performance evaluation is not always legally required in a specific format, but it is highly important.

A fair probationary process usually includes:

Orientation on job duties;
Explanation of regularization standards;
Monitoring of performance;
Feedback from supervisors;
Written evaluation;
Documentation of deficiencies;
Opportunity to improve, where practicable;
Final assessment before the end of probation.

The absence of evaluation does not automatically make every probationary dismissal illegal, but it may weaken the employer’s claim that the employee failed reasonable standards.

XII. Can the Employer Terminate Immediately?

Immediate termination may be valid only in limited circumstances.

For example, if the employee commits serious misconduct, theft, violence, fraud, or other grave misconduct, the employer may place the employee on preventive suspension if continued presence poses a serious and imminent threat to company property, operations, or personnel. But even then, the employer should still observe due process before final dismissal.

For failure to meet standards, immediate dismissal without written notice is risky. The employer should still issue a written notice of non-regularization or termination before the end of the probationary period.

XIII. Preventive Suspension of a Probationary Employee

Preventive suspension is not a penalty. It is a temporary measure used when the employee’s continued presence poses a serious and imminent threat to the life or property of the employer or co-workers, or to company operations.

A probationary employee may be preventively suspended under proper circumstances. However:

It must be based on a legitimate threat or concern;
It should not be used to punish before investigation;
It should be for a limited period;
The disciplinary process should proceed;
It should not be a substitute for notice and hearing.

If preventive suspension is abused, it may support a claim of constructive dismissal or denial of due process.

XIV. Termination for Authorized Causes

Probationary employees may also be terminated for authorized causes, such as:

Installation of labor-saving devices;
Redundancy;
Retrenchment to prevent losses;
Closure or cessation of business;
Disease not curable within the legally contemplated period and prejudicial to the employee’s or co-workers’ health.

For authorized causes, the employer must generally serve written notice on both:

The employee; and
The Department of Labor and Employment.

The notice must usually be given at least thirty days before the intended date of termination.

Separation pay may also be required depending on the authorized cause.

XV. Termination Due to Disease

A probationary employee may be dismissed due to disease only if legal requirements are met. The employer cannot simply dismiss an employee because they became sick.

The employer must generally show that:

The employee suffers from a disease;
Continued employment is prohibited by law or prejudicial to the employee’s health or the health of co-workers;
There is proper medical certification;
Notice requirements are followed;
Separation pay is paid when required.

Dismissal based on illness, pregnancy, disability, or medical condition must be handled carefully because it may also raise issues of discrimination, labor standards violations, or violation of special laws.

XVI. Termination Due to Absence or Tardiness

Absence, tardiness, or poor attendance may be a valid basis for termination if it violates company standards or policies.

For probationary employees, attendance and punctuality may be part of the standards for regularization. If these standards were communicated at engagement, repeated attendance problems may support non-regularization.

However, if the employer treats the matter as misconduct or neglect of duty, procedural due process should be observed.

Important considerations include:

Whether the employee was informed of attendance standards;
Whether absences were authorized or justified;
Whether medical certificates were submitted;
Whether the company applied rules consistently;
Whether the penalty was proportionate;
Whether the employee was given notice.

XVII. Termination Due to Poor Performance

Poor performance is one of the most common reasons for ending probationary employment.

A valid termination for poor performance should be supported by:

Previously communicated standards;
Performance metrics or evaluation;
Supervisor reports;
Written warnings or coaching records, if any;
Comparison with expected job output;
Documentation of errors, delays, or deficiencies.

The employer should avoid vague conclusions such as “not a good fit” or “poor attitude” without factual support. While employers have discretion to determine qualifications, that discretion must be exercised in good faith.

XVIII. Termination for “Attitude Problem”

Employers sometimes terminate probationary employees for “attitude problem,” “lack of teamwork,” “insubordination,” or “not fitting company culture.”

These grounds may be valid if they are supported by specific facts. However, they are risky if used vaguely.

For example, valid grounds may exist if the employee:

Repeatedly refuses lawful instructions;
Shows disrespectful behavior toward customers or supervisors;
Engages in workplace harassment;
Violates confidentiality;
Causes serious workplace disruption;
Fails to cooperate with team procedures.

But the employer should document the actual conduct. A bare allegation of “attitude problem” may be insufficient.

XIX. Termination for Misconduct During Probation

A probationary employee who commits misconduct may be dismissed even before the end of the probationary period.

Examples include:

Theft;
Falsification of records;
Fighting at work;
Sexual harassment;
Serious disrespect;
Gross negligence;
Fraudulent claims;
Unauthorized disclosure of confidential information;
Serious violation of safety rules;
Intoxication or drug use at work, where prohibited and proven;
Abandonment, if legally established.

But the employer must still comply with due process. Probationary status does not excuse the employer from issuing notice and allowing the employee to explain.

XX. Abandonment by a Probationary Employee

Abandonment is a just cause for dismissal, but it is not easily presumed. The employer must generally show:

Failure to report for work or absence without valid reason; and
A clear intention to sever the employment relationship.

Mere absence is not automatically abandonment. If the employee later reports for work, asks to return, or files a complaint for illegal dismissal, that may be inconsistent with abandonment.

The employer should send return-to-work notices and require the employee to explain before declaring abandonment.

XXI. Resignation During Probation

A probationary employee may resign. Under the Labor Code, an employee generally gives one month advance notice for resignation without cause, unless the employer allows a shorter period or the resignation is for legally recognized causes.

If the probationary employee resigns voluntarily, that is not termination by the employer. However, forced resignation, coerced resignation, or resignation obtained through pressure may be treated as constructive dismissal.

Employers should avoid pressuring probationary employees to resign to evade due process.

XXII. Constructive Dismissal of a Probationary Employee

Constructive dismissal occurs when an employer makes continued employment impossible, unreasonable, or unlikely, or when the employee is forced to resign due to hostile or unlawful treatment.

A probationary employee may claim constructive dismissal if the employer:

Removes duties without basis;
Demotes the employee;
Harasses or humiliates the employee;
Forces resignation;
Withholds salary;
Bars the employee from work without notice;
Changes work conditions unfairly;
Places the employee on indefinite floating status;
Makes work intolerable.

Even if the employee is probationary, constructive dismissal may still be illegal if done without lawful cause or due process.

XXIII. Floating Status and Probationary Employees

“Floating status” or temporary off-detail is more common in industries such as security services, manpower agencies, and project-based deployments.

For probationary employees, placing an employee on floating status must be carefully justified. It should not be used to avoid regularization or to extend probation improperly.

If the employee is left without work or pay without valid reason, it may amount to constructive dismissal.

XXIV. Can Probation Be Extended?

As a general rule, probationary employment should not exceed six months. Extension may be allowed only in limited situations, such as when the employee knowingly and voluntarily agrees to an extension, often to give the employee a second chance to meet standards, and where the extension is not used to circumvent security of tenure.

Employers should be careful. An invalid extension may result in the employee being deemed regular.

If the employee continues working beyond the probationary period without valid termination or valid extension, the employee generally becomes regular.

XXV. Probationary Employees and Regularization by Operation of Law

A probationary employee becomes regular when:

They are allowed to work after the probationary period;
The employer failed to validly terminate before the end of probation;
The employee was not informed of reasonable regularization standards at the time of engagement;
The nature of work and circumstances show regular employment;
The probationary arrangement is invalid.

Once regularized, the employee may no longer be dismissed merely for failure to meet probationary standards. The employer must rely on just or authorized causes applicable to regular employees.

XXVI. What if the Employee Was Not Given a Contract?

A written contract is not always the sole proof of employment status. Even without a written contract, employment may exist.

However, if there is no written probationary agreement and no proof that standards were communicated at the time of hiring, the employer may have difficulty proving valid probationary status.

In disputes, the law generally looks at the facts, including:

Date of hiring;
Nature of work;
Job duties;
Company control over work;
Salary payments;
Work schedule;
Policies applied;
Whether standards were communicated.

Absence of written documentation often hurts the employer more than the employee.

XXVII. Notice Requirements Compared

A. Just Cause

For misconduct, neglect, fraud, breach of trust, and similar grounds:

First notice: informs employee of charges;
Opportunity to explain or be heard;
Second notice: informs employee of decision.

B. Failure to Meet Probationary Standards

For non-regularization:

Written notice of termination or non-regularization;
Must be based on reasonable standards made known at engagement;
Must be served before the probationary period expires.

C. Authorized Cause

For redundancy, retrenchment, closure, labor-saving devices, or disease:

Written notice to employee;
Written notice to DOLE;
Usually at least thirty days before effectivity;
Separation pay when required by law.

XXVIII. Is a Hearing Always Required?

A hearing is not always required in every probationary termination.

For just-cause dismissal, the employee must be given an opportunity to be heard. This may be through written explanation, conference, or formal hearing depending on circumstances.

A formal hearing becomes more important when:

The employee requests it;
There are factual disputes;
The allegations are serious;
Company rules require it;
The employee needs to confront evidence;
Dismissal is being considered as a disciplinary penalty.

For failure to meet probationary standards, a full adversarial hearing is generally not required, but the employer should have a documented basis for the decision and should notify the employee properly.

XXIX. Effect of Lack of Notice

The effect depends on whether there was a valid substantive ground for dismissal.

1. No Valid Cause and No Due Process

If there was no valid ground and due process was not observed, the dismissal may be illegal. The employee may be entitled to reinstatement or separation pay, backwages, and other benefits.

2. Valid Cause but No Due Process

If there was a valid ground but the employer failed to observe procedural due process, the dismissal may still be upheld, but the employer may be ordered to pay nominal damages.

3. No Notice of Standards at Hiring

If the employee was not informed of reasonable standards at the time of engagement, the employee may be treated as regular. Termination for failing undisclosed standards may be illegal.

4. Notice Given After Probation Expired

If the employer gives notice only after the probationary period has lapsed and the employee has continued working, the employee may already be regular.

XXX. Remedies of a Probationary Employee

A probationary employee who believes they were terminated without notice or without lawful cause may file a complaint for illegal dismissal.

Possible claims include:

Reinstatement;
Backwages;
Separation pay in lieu of reinstatement;
Unpaid wages;
Pro-rated 13th month pay;
Service incentive leave pay, if applicable;
Final pay;
Salary differentials;
Damages;
Attorney’s fees;
Nominal damages for violation of due process.

The appropriate remedy depends on the facts and the findings of the labor arbiter or tribunal.

XXXI. Where to File a Complaint

A probationary employee may file a labor complaint before the appropriate forum, usually through the National Labor Relations Commission process.

Some complaints may first pass through mandatory conciliation and mediation, commonly through the Single Entry Approach mechanism.

The employee should prepare:

Employment contract or job offer;
Company ID;
Payslips;
Attendance records;
Termination notice, if any;
Screenshots or emails from supervisors;
Performance evaluations;
Written warnings;
Employee handbook;
Messages showing dismissal or being barred from work;
Proof of date hired and last day worked;
Witness statements.

XXXII. Burden of Proof

In illegal dismissal cases, the employer generally has the burden of proving that the dismissal was valid.

This means the employer must show:

The employee was validly probationary;
The standards were made known at the time of engagement;
The standards were reasonable;
The employee failed to meet those standards, or committed a valid cause for dismissal;
Proper notice and due process were observed.

If the employer cannot prove these, the dismissal may be declared illegal.

XXXIII. Final Pay of a Terminated Probationary Employee

Even if the termination is valid, the employee is entitled to receive unpaid earned compensation.

Final pay may include:

Unpaid salary;
Pro-rated 13th month pay;
Cash conversion of unused service incentive leave, if applicable;
Tax refunds, if applicable;
Other benefits due under contract, policy, or collective agreement;
Return of lawful deposits or reimbursements;
Separation pay if termination is due to an authorized cause requiring it.

Final pay should not be withheld indefinitely. Clearance procedures may be required, but they should not be used to unlawfully delay wages and benefits.

XXXIV. Certificate of Employment

A probationary employee may request a certificate of employment. The certificate usually states the employee’s position and period of employment. It should not be used as a tool to punish or shame the employee.

The employer should avoid putting defamatory or unnecessary negative remarks in the certificate.

XXXV. Quitclaims and Waivers

Employers sometimes ask terminated probationary employees to sign quitclaims before releasing final pay.

A quitclaim may be valid if it is voluntarily signed, represents a reasonable settlement, and is not contrary to law, morals, public policy, or good customs.

However, a quitclaim may be invalid if:

It was signed under pressure;
It was required before releasing undisputed wages;
The consideration was unconscionably low;
The employee did not understand it;
The waiver defeats statutory rights;
There was fraud, intimidation, or mistake.

Employees should read all documents carefully before signing.

XXXVI. Common Employer Mistakes

1. No Written Standards

The employer hires a probationary employee but fails to issue standards for regularization.

2. Termination by Text Message Only

The employer dismisses the employee by text, chat, or verbal instruction without formal written notice.

3. Late Termination

The employer issues a non-regularization notice after the probationary period has ended.

4. Vague Reason

The notice merely says “failed probation” without explanation or reference to standards.

5. Using Probation to Avoid Regularization

The employer repeatedly hires workers on probation for jobs that are necessary and desirable, then terminates them before regularization without valid basis.

6. Treating Misconduct as Simple Non-Regularization

The employer dismisses the employee for alleged misconduct but avoids the two-notice rule by calling it “failure to meet standards.”

7. No Documentation

The employer cannot produce evaluations, warnings, attendance records, or proof of poor performance.

8. Discriminatory Termination

The employee is dismissed because of pregnancy, illness, union activity, protected complaint, disability, age, religion, gender, or other unlawful basis.

XXXVII. Common Employee Mistakes

1. Assuming Probation Means No Rights

A probationary employee still has rights and may question an unlawful dismissal.

2. Ignoring Notices

If served with a notice to explain, the employee should answer clearly and on time.

3. Signing Documents Without Reading

Employees should carefully review quitclaims, resignation letters, and clearance documents.

4. Failing to Keep Evidence

Employees should keep contracts, payslips, messages, schedules, and evaluations.

5. Waiting Too Long

Labor claims are subject to prescriptive periods. Prompt action is important.

6. Not Asking for the Reason

If dismissed verbally, the employee should request written confirmation and the reason for termination.

XXXVIII. Probationary Employment in Different Industries

A. Retail and Service Industry

Standards may include customer service, attendance, sales performance, cash handling, grooming, and compliance with store procedures.

B. BPO and Call Centers

Standards may include call quality, attendance, client metrics, communication skills, productivity, data privacy compliance, and training certification.

C. Sales

Standards may include sales quotas, client acquisition, account management, reporting compliance, and professionalism.

D. Manufacturing

Standards may include output, quality control, safety compliance, punctuality, and ability to operate machinery.

E. Healthcare

Standards may include professional competence, patient care, licensing requirements, ethics, attendance, and safety protocols.

F. Security and Manpower Agencies

Standards may include client satisfaction, discipline, attendance, licensing, grooming, and compliance with post orders.

Different industries may use different standards, but the same principle applies: the standards must be reasonable and communicated.

XXXIX. Special Issues: Pregnancy, Illness, Disability, and Protected Rights

A probationary employee should not be terminated for unlawful or discriminatory reasons disguised as failure to meet standards.

Problematic dismissals include termination because:

The employee became pregnant;
The employee filed a labor complaint;
The employee reported harassment;
The employee asserted wage rights;
The employee joined or supported a union;
The employee suffered a disability;
The employee requested lawful leave;
The employee refused illegal instructions.

If the employer claims failure to meet standards, but the surrounding facts suggest discrimination or retaliation, the dismissal may be challenged.

XL. Termination by Verbal Notice, Text, or Chat

Termination should be in writing. A verbal dismissal is risky and may violate due process.

Text, chat, or email may serve as evidence that the employee was dismissed, but they may not satisfy legal requirements if they do not provide the required information and procedure.

An employee who is told “do not report anymore” should preserve the message and request clarification in writing.

An employer should issue a formal notice signed by an authorized representative.

XLI. Can the Employer Simply Let the Contract Expire?

If the employee was hired under a valid probationary arrangement, the employer should still communicate non-regularization before the probationary period ends. Silence is risky.

Probationary employment is not exactly the same as a fixed-term contract. The expiration of the probationary period does not automatically terminate employment. If the employee continues working after the period, regularization may occur.

XLII. Probationary vs. Project, Seasonal, Casual, and Fixed-Term Employees

Probationary employment should not be confused with other employment types.

Probationary Employee

Hired on trial basis for possible regularization.

Project Employee

Hired for a specific project or undertaking, with duration determined by the project.

Seasonal Employee

Hired for work available only during a particular season.

Casual Employee

Performs work not usually necessary or desirable to the employer’s usual business, unless the law deems them regular after a period.

Fixed-Term Employee

Hired for a definite period under a valid fixed-term arrangement.

Mislabeling employment status does not control. The actual nature of work and circumstances determine rights.

XLIII. Documentation Employers Should Keep

Employers should maintain:

Signed employment contract;
Job description;
Regularization standards;
Employee handbook acknowledgment;
Orientation records;
Performance evaluations;
Attendance records;
Coaching records;
Written warnings;
Notice to explain, if applicable;
Employee explanation;
Hearing minutes, if any;
Notice of decision;
Notice of non-regularization;
Clearance and final pay records.

Good documentation helps prove that the dismissal was lawful and fair.

XLIV. Documentation Employees Should Keep

Employees should keep:

Job offer;
Contract;
Company ID;
Payslips;
Daily time records;
Emails and messages;
Performance feedback;
Commendations;
Warnings;
Notices;
Evaluation forms;
Medical certificates;
Proof of submitted explanations;
Proof of being barred from work;
Final pay documents.

These may be important in proving illegal dismissal or unpaid benefits.

XLV. Sample Notice of Non-Regularization

A notice of non-regularization may include the following elements:

Subject: Notice of Non-Regularization

Dear [Employee Name]:

This refers to your probationary employment as [Position], which commenced on [Date].

At the time of your engagement, you were informed of the standards for regularization, including [state standards]. After evaluation of your performance during the probationary period, the company has determined that you did not meet the required standards for regular employment, specifically [state factual basis].

In view of this, the company regrets to inform you that your probationary employment will end effective [Date], which is within your probationary period.

Please coordinate with [HR/Department] for clearance, return of company property, and processing of your final pay and employment documents.

Sincerely, [Authorized Representative]

This sample should be adapted to the facts. Employers should not use generic notices when specific facts are available.

XLVI. Sample Notice to Explain for a Probationary Employee

For disciplinary dismissal, the first notice may look like this:

Subject: Notice to Explain

Dear [Employee Name]:

The company has received a report that on [Date], at approximately [Time], at [Place], you allegedly [specific act or omission]. This may constitute a violation of [company rule/policy] and may be a ground for disciplinary action, including dismissal.

You are directed to submit your written explanation within [reasonable period] from receipt of this notice. You may attach evidence or identify witnesses in support of your explanation.

A conference may be scheduled if necessary or upon proper request.

Please be guided accordingly.

Sincerely, [Authorized Representative]

XLVII. Sample Notice of Decision

After evaluation, the employer may issue a decision notice:

Subject: Notice of Decision

Dear [Employee Name]:

This refers to the Notice to Explain dated [Date] concerning the incident on [Date]. The company has reviewed your written explanation dated [Date], the available evidence, and the applicable company policies.

After evaluation, the company finds that [state findings]. Your acts constitute [state violation/just cause]. Accordingly, the company has decided to terminate your employment effective [Date].

Please coordinate with [HR/Department] for clearance, return of company property, and processing of your final pay.

Sincerely, [Authorized Representative]

XLVIII. Practical Guidance for Employers

Employers should:

Put probationary terms in writing;
Communicate standards at hiring;
Make standards job-related and measurable where possible;
Conduct evaluations before the probationary period ends;
Document performance issues;
Distinguish poor performance from misconduct;
Use the two-notice rule for disciplinary dismissals;
Issue non-regularization notices before probation ends;
Avoid discriminatory or retaliatory motives;
Pay final wages and benefits promptly;
Keep records of all notices and acknowledgments.

XLIX. Practical Guidance for Employees

Employees should:

Ask for written standards at the start of employment;
Keep copies of contracts and policies;
Ask for feedback during probation;
Respond in writing to notices;
Save messages and evaluations;
Avoid signing forced resignation letters;
Request written reasons if dismissed verbally;
Ask for final pay and certificate of employment;
Seek assistance if dismissal appears unlawful;
File a complaint promptly if necessary.

L. Frequently Asked Questions

1. Can a probationary employee be fired anytime?

No. A probationary employee may be dismissed only for just cause, authorized cause, or failure to meet reasonable standards made known at the time of engagement.

2. Can a probationary employee be dismissed without notice?

Generally, no. Notice is required. The form of notice depends on the ground for dismissal.

3. Is the two-notice rule always required?

It is generally required for just-cause disciplinary dismissal. For failure to meet probationary standards, a notice of non-regularization is required, but a full two-notice disciplinary process may not always be necessary.

4. What if the employee was not informed of standards?

The employee may be deemed regular, and dismissal for failure to meet undisclosed standards may be illegal.

5. Can the employer terminate on the last day of probation?

The employer may terminate before the probationary period ends if there is a valid basis and notice is properly given. Waiting until the last day is risky if notice is delayed or the employee continues working afterward.

6. What if the employee continues working after six months?

The employee may become regular by operation of law.

7. Can poor performance justify termination?

Yes, if based on reasonable standards made known at engagement and supported by evaluation or evidence.

8. Can misconduct justify immediate termination?

Misconduct may justify dismissal, but due process must still be observed. Preventive suspension may be used in proper cases, but it is not a substitute for notice and hearing.

9. Is final pay required even if the employee failed probation?

Yes. Earned wages and benefits must be paid.

10. Can a probationary employee file illegal dismissal?

Yes. Probationary employees may file complaints if dismissed without lawful cause or due process.

LI. Conclusion

A probationary employee in the Philippines cannot simply be terminated without notice. Probationary employment gives the employer a period to assess fitness for regular employment, but it does not remove the employee’s right to security of tenure and due process.

The employer must identify the correct ground for termination. If the ground is misconduct or another just cause, the two-notice rule and opportunity to be heard must be observed. If the ground is failure to meet probationary standards, the employer must show that reasonable standards were made known at the time of engagement and must issue notice of non-regularization before the probationary period expires. If the ground is an authorized cause, statutory notice to the employee and DOLE, and separation pay when required, must be observed.

For employers, the safest approach is to document standards, evaluate fairly, and issue timely written notices. For employees, the most important protections are to keep records, request written reasons, respond to notices, and challenge dismissals that are arbitrary, discriminatory, or unsupported by lawful grounds.

Probationary employment is a trial period, not a license for arbitrary dismissal. In Philippine labor law, even probationary employees are entitled to fairness, lawful cause, and proper notice.