Employee Rights When Not Regularized After the Probationary Period

Philippine Labor-Law Primer (updated 21 June 2025)

Important: This is a general legal discussion, not specific legal advice. If you are directly affected, consult a Philippine labor lawyer or the Department of Labor and Employment (DOLE).

1. Probationary Employment in a Nutshell

Statutory Source	Key Points
Art. 296 (old Art. 281) Labor Code	Probationary employment may not exceed six (6) months from the employee’s start of work, unless a longer period is “reasonable and necessary” (e.g., apprenticeship agreements under Art. 300).
Requirement to Communicate Standards	The employer must clearly inform the employee of the reasonable performance standards at the time of engagement. (Failing this, the employee is deemed regular from Day 1.)
Purpose	To give the employer a trial period to judge fitness and to give the worker security after the trial.

2. What Happens at the End of Six Months?

Regularization The employee becomes regular if:
- he/she meets the reasonable standards or
- the employer fails to prove that (a) the standards were communicated and (b) the employee failed to meet them.
Termination for Failure to Qualify Lawful only if both due-process legs are met:
- Substantive due process – failure to meet pre-announced, reasonable standards.
- Procedural due process – the “twin-notice rule” under DOLE Department Order 147-15 (first notice specifying the deficiency and giving a chance to explain; second notice conveying the decision).
No Action Taken (the common problem)
- If the employer does nothing—no new contract, no termination—yet allows the worker to continue working even for a single day beyond six months, regularization occurs by operation of law (Aberdeen Court vs CA, G.R. 1241, 1996; Abasolo vs NLRC, G.R. 113592, 1995).
- An “extension of probation” is invalid unless it falls under a true apprenticeship program approved by DOLE.

3. Rights of an Employee Who Is Not Properly Regularized

Right	Why It Exists	Typical Remedy if Violated
Security of Tenure	Art. 294 guarantees that a regular employee may only be dismissed for a just or authorized cause and with due process.	File an illegal-dismissal case with the NLRC for reinstatement & back-wages.
Statutory Monetary Benefits	Labor Code & special laws grant 13th-month pay (PD 851), service-incentive leave, overtime pay, holiday pay, night-shift differential—regardless of “regularization papers.”	SENA/mediation at DOLE or money-claims case (prescriptive period: 3 years for money claims).
Social-Security & Government Contributions	SSS Act, PhilHealth Act, Pag-IBIG Law compel coverage from Day 1.	Complaints with SSS / PhilHealth / Pag-IBIG; penalties & surcharges imposed on employer.
Right Against Constructive Dismissal	Cutting hours, benefits, or demoting to coerce resignation after probation is illegal.	File for constructive dismissal—same remedies as outright dismissal.
Due-Process Right on Non-Regularization	Employer must observe twin-notice rule even if it claims the employee “failed the probation.”	Absence of notices → dismissal becomes illegal, entitling the worker to back-wages, reinstatement or separation pay in lieu, plus nominal damages (Agabon vs NLRC, G.R. 158693, 2004).
Back-Wages & Separation Pay	If dismissal is illegal, back-wages run from dismissal until actual reinstatement (or finality of decision if separation pay is chosen).	Computed on basic salary plus regular allowances. Separation pay in lieu of reinstatement: one month pay per year of service, unless employee opts for reinstatement.
Moral & Exemplary Damages, Attorney’s Fees	Awarded when employer acts in bad faith or with malice.	Granted at the NLRC/CA/SC’s discretion, usually P50k–P100k each head of damages.

4. Employer’s Burden of Proof

The employer, not the employee, must prove all the following:

Standards were made known at hiring;
Standards are reasonable and related to the job;
The employee failed to meet those standards;
Procedural due process was observed.

Failing any item, the dismissal is illegal (Aliling vs Petron, G.R. 170891, 2012; Continental Micronesia vs Basso, G.R. 178382, 2010).

5. Special Situations & Frequently Asked Questions

Scenario	Legal Answer
Probationary period shorter/longer than six months stated in the contract	A shorter period is valid (e.g., 3 months). A longer period beyond six is void unless it is an apprenticeship (Art. 300) or similarly DOLE-approved program.
Project / Seasonal / Casual workers	Their status is governed by project completion or seasonality, not by a six-month cap. But if tasks are necessary/desirable to the main business and the employment is continuous, they may still become regular.
“Floating” or temporary suspension after probation	May amount to constructive dismissal unless it falls under bona-fide suspension of business operations (authorized cause under Art. 300) and the DOLE is duly notified.
Resignation under pressure	A resignation letter does not bar an illegal-dismissal case if evidence shows the employee was coerced (SME Bank vs De Guzman, G.R. 184517, 2013).
Late issuance of a “Regularization Memo”	Purely documentary. If the worker has been allowed to work beyond six months, regularization already happened by law. The memo is merely confirmatory.
Prescription	• Illegal-dismissal action: 4 years (Civil Code Art. 1146). • Money claims: 3 years (Labor Code Art. 305).

6. Enforcement Procedures

Step-by-Step
- Internal grievance (if any).
- “Single Entry Approach” (SENA) mediation at DOLE Regional Office.
- NLRC complaint (illegal dismissal, money claims, reinstatement).
- Court of Appeals via Rule 65, then Supreme Court on pure questions of law.
Evidence Checklist for Employees
- Employment contract / appointment letter.
- Job offer e-mails or messages.
- Payslips, time sheets, ID, HR memoranda.
- Performance evaluations (or proof none was given).
- Co-worker affidavits or screen-shots showing continued work after six months.
Employer Penalties
- Potential wage-order penalties (P10,000–P100,000 per affected worker plus 100% wage differential).
- SSS/PhilHealth/Pag-IBIG surcharges and penalties.
- Reinstatement orders immediately executory even pending appeal (Art. 229).

7. Best-Practice Pointers

For Employees

Keep records from Day 1 (contracts, messages, payslips).
Request written standards if not provided.
Document any extension of probation or verbal promises.
Act quickly; delay can prejudice claims and raise prescription issues.

For Employers

Issue performance standards in writing upon hiring.
Conduct mid-probation evaluations; give feedback in writing.
If terminating, observe twin-notice and hearing.
Do NOT extend probation beyond six months unless within a legitimate apprenticeship.
Regularize on time; withholding the memo is not a cost-saving measure—liability only grows.

8. Key Supreme Court Cases to Remember

Case	G.R. No. / Year	Doctrine
Aberdeen Court vs CA	1241 (1996)	Work beyond six months → regularization by law.
Abasolo vs NLRC	113592 (1995)	No communicated standards → employee deemed regular from inception.
Aliling vs Petron Corp.	170891 (2012)	Burden on employer to prove standards; failure → illegal dismissal.
Continental Micronesia vs Basso	178382 (2010)	Twin-notice requirement applies to probationary dismissals.
Agabon vs NLRC	158693 (2004)	Violation of procedural due process → nominal damages even if substantive ground exists.
SME Bank vs De Guzman	184517 (2013)	Resignation letters can be coerced; examine surrounding facts.

9. Conclusion

In Philippine labor law, regularization is a matter of right, not of paperwork. The probationary period is strictly a test, not a loophole to deny statutory benefits or security of tenure. If the employer does not affirmatively regularize and does not legally terminate the worker within the six-month window, the law steps in: the employee becomes regular by operation of law, with all the rights, benefits, and protections that status entails.

Understanding these principles empowers both employees and employers to navigate probationary employment correctly and to avoid costly disputes.

Authored 21 June 2025. © This primer may be shared for educational purposes provided no changes are made and proper attribution is retained.