Early Performance Evaluation During the Probationary Period (Philippines)

1) Overview

“Probationary employment” in the Philippines is a lawful trial period—generally up to six (6) months from the start of employment—during which an employer may assess if the new hire meets reasonable standards made known at the time of engagement. A worker who meets those standards becomes regular; one who doesn’t may be validly separated any time within the period for failure to qualify, or for a just/authorized cause under the Labor Code.

Core rule of thumb: communicate standards on Day 1, evaluate against those standards, document fairly, and act within the six-month window (subject to limited sector-specific exceptions).

2) Legal Foundations

A. Probationary employment

Maximum duration: Up to 6 months from the employee’s start date, unless a specific law/regulation provides a different period (e.g., private school teachers may undergo a longer probationary period under education-sector rules).
Standards requirement: The employer must clearly inform the employee of reasonable performance standards at hiring (e.g., job description, KPI sheet, signed policy or offer letter). If standards are not made known, the employee is generally deemed regular.
Termination grounds during probation:
1. Failure to qualify under the communicated standards;
2. Just causes (e.g., serious misconduct, fraud); or
3. Authorized causes (e.g., redundancy, closure), with statutory payments and procedure.

B. Procedural due process

For failure to qualify: At minimum, written notice stating the specific standards not met and the factual basis, given within the probationary period. Best practice is to also provide a chance to explain (written explanation meeting), and to issue a final notice.
For just cause: Follow the twin-notice rule (Notice to Explain + Notice of Decision) with a meaningful opportunity to be heard.
For authorized cause: Observe legal notice periods to the employee and DOLE, plus separation pay where applicable.

C. Regularization triggers

Silent or unclear standards: Employee becomes regular by operation of law.
Lapse of the 6-month period without valid separation: Employee becomes regular.
Working beyond the probation end date: Strong indicator of regular status.

3) Early Performance Evaluation: What, Why, and How

A. What counts as an “early evaluation”?

Any formal review conducted before the 6-month mark—often at 30/60/90 days—that measures probationer performance against pre-announced standards.

B. Why conduct it early?

Legal prudence: If the employee will not qualify, action must occur within probation; late realization risks automatic regularization.
Fairness & improvement: Early feedback enables a Performance Improvement Plan (PIP), coaching, and support.
Documentation: Early records create a contemporaneous trail supporting a lawful separation if needed.

C. How to structure early evaluations

Baseline alignment (Day 1–7)
- Hand over job description, KPIs, and evaluation rubric.
- Secure written acknowledgment that standards were explained.
30-Day Check-in
- Assess initial metrics (quality, output, timeliness, behavioral/values fit).
- Issue written feedback and, if needed, a PIP (goals, measures, timeline, supports).
60-Day Review
- Measure progress under the PIP; revise goals if needed.
- Warn in writing if minimum standards remain unmet.
90-Day (or mid-term) Decision Gate
- If still off-track, consider final PIP or initiate due-process steps for non-qualification.
120-150 Day Review
- Lock in the decision; ensure complete documentation.
Before Day 180
- If separating for non-qualification, serve written notice within the period, stating the specific failed standards and factual bases.
- If retaining, issue regularization memo effective upon expiry.

4) Designing Lawful, Defensible Standards

Reasonable & job-related: Tie every metric to essential job functions (e.g., sales quota, case turn-around, defect rate).
Specific & measurable: Use SMART criteria; avoid vague labels (“bad attitude”) without observable behaviors.
Known at engagement: Place in the offer, handbook, KPI sheet, or orientation deck; have the employee sign.
Consistent application: Apply uniformly to similarly situated probationers to avoid discrimination issues.
Adjustments for role realities: Where ramp-up time is expected, use tiered targets (e.g., 70% of quota at 60 days; 100% by 150 days).

5) Documentation Toolkit (Employer Side)

Onboarding pack: Offer letter, job description, KPI sheet, evaluation rubric, policy acknowledgments.
Evaluation forms: 30/60/90-day templates with scores, comments, and employee sign-off.
PIP template: Objectives, metrics, check-in dates, training support, and consequences of non-improvement.
Meeting notes: Dated minutes of feedback sessions and coaching.
Notices:
- Notice to Explain (for just causes);
- Notice of Non-Qualification (for standards failure) stating which standard, how measured, and facts (dates, numbers, customer IDs, QA scores).
Regularization memo or separation memo issued before probation lapses.

6) Employee Rights & Best Moves (Employee Side)

Right to know standards at hiring; ask for KPIs in writing.
Right to fair evaluation: Seek mid-probation feedback; request a PIP if none is offered.
Right to due process: For just-cause allegations, insist on twin-notice and a real chance to explain.
Right to contest illegal dismissal: If standards were not disclosed, are patently unreasonable, applied inconsistently, or if termination occurred after probation ended.
Wage, leave, and statutory benefits: Probationers generally enjoy the same basic labor standards as regular employees (e.g., minimum wage, OT pay), except tenure security pending qualification.

7) Special Topics & Edge Cases

Extensions of probation: Highly scrutinized. Generally disfavored unless (a) contemplated in a policy disclosed at hiring, (b) based on valid reasons (e.g., prolonged leave disrupting evaluation), and (c) the employee consents in writing. Even then, be cautious—extensions can be treated as regularization risks if abused.
Authorized-cause separations during probation: Still permissible (e.g., redundancy, closure) but must comply with statutory notice and separation pay rules.
Fixed-term vs. probationary: A fixed term does not cure a failure to disclose standards. Courts weigh substance over labels to prevent labor-only contracting or “endo” practices.
Sector exceptions:
- Private school teachers: Often longer probationary period under education regulations (e.g., up to three consecutive school years).
- Apprentices/learners: May follow distinct statutory schemes on duration and training standards.
Attendance and leaves: If absence materially impedes evaluation, document impact; consider prorating or a short, consensual extension narrowly tailored to the lost evaluation time.
Data Privacy Act compliance: Performance records contain personal and potentially sensitive data. Disclose processing purposes, ensure access controls, limit retention to legitimate business/legal needs, and secure data transfers (e.g., cloud HRIS).

8) Lawful Early-Separation Workflow (Failure to Qualify)

Confirm: Standards were disclosed at hiring and are reasonable/job-related.
Evaluate: Rely on dated artifacts (KPI dashboards, QA sheets, client complaints, audit logs).
Coach: Provide feedback and, where practicable, a PIP with support/training.
Decide Timely: If still failing, issue written non-qualification notice within probation.
Record: Keep the evaluation trail, signed acknowledgments, and delivery proofs (email, HRIS, receipt).

Pro tip: Even though the law permits a simpler process for “failure to qualify,” many employers mirror the twin-notice format to minimize litigation risk.

9) Common Pitfalls (and How to Avoid Them)

No written standards at hiring → risk of automatic regularization.
Vague standards (“culture fit”) → convert to observable behaviors (e.g., “responds to tickets within 4 business hours”).
Silence until Day 170 → act earlier; run 30/60/90-day gates.
Surprise requirements mid-probation → new metrics apply prospectively only and should be reasonable.
Unequal application across probationers → document legitimate distinctions (role scope, territory size, training gaps).
Late notice (post-180th day) → employee likely regular; separation must then meet regular-employee standards.

10) Model Clauses & Practical Templates (short forms)

A. Standards Acknowledgment (Day 1) “I acknowledge receipt of my Job Description, KPI targets, and the Probationary Evaluation Rubric. These standards were explained to me today, and I was given the opportunity to ask questions.”

B. 60-Day Evaluation Excerpt “KPI 1 (Cases closed within 24 hrs): Target 80%; Actual 55% (Weeks 5–8). KPI 2 (QA score): Target 95%; Actual 88% (3 audits). Action: PIP for Weeks 9–12 with coaching every Tuesday.”

C. PIP Objective Line “By Week 12, raise 24-hr closure rate to ≥75% (measured via Zendesk time-to-close report).”

D. Notice of Non-Qualification (before Day 180) “Despite coaching and a PIP (dated ___), you did not meet the following standards disclosed on ___: (1) QA ≥95% (your average: 88%), (2) 24-hr closure rate ≥80% (your average: 60%). Accordingly, your probationary employment will end effective ___.”

11) Remedies and Exposure

If separation is defective (e.g., no standards disclosed, notice late, or process fatally flawed): potential reinstatement (or separation pay in lieu) plus backwages, and in some cases nominal damages for due-process lapses.
If lawful: No separation pay is due for non-qualification; final pay must still include earned wages, unused convertible benefits (per policy/CBA), and government contributions.

12) Quick Compliance Checklist (Employers)

□ Standards written, reasonable, job-related, explained at hiring
□ 30/60/90-day reviews completed with signed forms
□ PIP used where practicable; training/support documented
□ Decision made before probation lapses; notice served timely
□ Records retained; privacy safeguards applied
□ Final pay processed promptly; COE issued upon request

13) Bottom Line

An early, structured, and well-documented evaluation is both good HR and good law in the Philippines. If you disclose clear standards at hiring, measure early and fairly, coach sincerely, and act within the probation window, you will minimize disputes while giving new hires a genuine chance to succeed.