Employer Denying Regular Employment Status After Months of Work (A Comprehensive Philippine‐Law Primer)

1. Why This Matters

Security of tenure is a constitutional guarantee in the Philippines. When an employee has already rendered months of service—often beyond the six-month probationary ceiling—but is still told, “You’re not regular,” the employer risks liability for illegal dismissal and money claims. This guide distills every key rule, doctrine, and practical step involved.

2. Core Legal Foundations

Source	Key Point
Art. 295 [280], Labor Code	Any employee who has rendered at least six (6) months of continuous service becomes regular—unless legitimately project, seasonal, or casual and the job is time-bound.
Art. 296 [281], Labor Code	A probationary employee may be dismissed only for just cause or failure to meet pre-communicated reasonable standards.
1987 Constitution, Art. XIII §3	Security of tenure is a basic right; dismissal without just or authorized cause and due process is prohibited.

Practical takeaway: Once the six-month mark is reached—with no valid fixed-term or project classification—the law automatically confers regular status. No “regularization memo” from HR is needed.

3. Probationary Employment: Mechanics & Missteps

Duration. Default: Maximum of 6 months counted from actual start of work (not from contract signing). Exceptions:
- Apprenticeship agreements approved by TESDA – follow the period in the apprenticeship plan.
- Learners in semi-skilled jobs – up to 3 months only.
Employer obligations on Day 1.
- Disclose standards in writing. If standards are not made known at the time of engagement, later termination for “failure to qualify” is invalid (Abbott Laboratories v. Alcaraz, G.R. No. 192571, 23 Jan 2013).
- Provide an objective evaluation system and allow the employee to see results.
Extension of probation.
- Generally not allowed. DOLE and jurisprudence treat unilateral extensions as a device to circumvent regularization, except where (a) the employee consents, and (b) the total period still does not exceed 6 months.

4. Typical Employer Tactics (and Why They Fail)

Tactic	Why It Is Usually Illegal
“5-5” Rolling Contracts	Rehiring every five months to avoid the 6-month threshold is considered labor-only contracting or a plain circumvention; service counted in aggregate deems the worker regular.
Fixed-Term Label after Probation	Under Brent School v. Zamora (G.R. No. L-48494, 05 Feb 1990) fixed-term is valid only if the parties were on equal footing and the term was the indeclinable desire of the employee. Courts presume inequality in ordinary employment.
“Project” Tag for Daily Office Work	A project employee must be hired for a specific undertaking, its completion or phase known at engagement (Art. 295). Routine roles (cashier, clerk, driver) are project only in name.
Seasonal Classification for Year-Round Operations	If the activity recurs regularly and the employee is called back every season, the employee becomes regular seasonal—and enjoys security of tenure for the next season.

5. Termination After Probation: Substantive & Procedural Due Process

Substantive cause
- Just causes (serious misconduct, gross dishonesty, etc.) – Art. 297.
- Authorized causes (redundancy, retrenchment, etc.) – Art. 298.
- Failure to meet standards – only if standards were timely communicated.
Procedural due process (Twin-Notice Rule)
- 1st notice: Detailed charge + 5-calendar-day minimum to explain.
- Hearing/Conference: Opportunity to be heard.
- 2nd notice: Decision stating reasons for dismissal.

Failure in procedure makes the dismissal illegal even if a valid cause exists, entitling the employee to nominal damages (Jaka Food Processing v. Pacot, G.R. No. 151378, 10 Mar 2005).

6. Consequences of Illegal Denial of Regularization

Remedy	Description
Reinstatement without loss of seniority	Immediate return to work or payroll reinstatement.
Full backwages	From date of illegal dismissal/denial until actual reinstatement.
13th-Month Pay, Service Incentive Leave, OT, holiday pay	Awarded if not properly paid during tenure.
Moral & exemplary damages + attorney’s fees	When bad faith or malice is proven (e.g., “5-5 scheme”).

7. Burden of Proof & Evidentiary Rules

Employer carries the burden to show:
1. Employment was still probationary or fixed-term/project.
2. Standards were duly communicated.
3. Due process was observed.
Doubts in evidence are resolved in favor of labor under the social justice policy.

8. Recent & Leading Jurisprudence (Selection)**

Abbott Laboratories v. Alcaraz (2013)
- Failure to furnish standards voided dismissal despite PIP evaluations.
Suzuki Philippines v. Dannug (G.R. 214294, 05 Oct 2021)
- Sales supervisors deemed regular; standards belatedly given three months in.
Universal Robina Corp. v. Astorga (G.R. 247535, 04 Jan 2023)
- “Seasonal” sugar-mill workers considered regular seasonal; dismissal between seasons is illegal if rehiring is a practice.
Holcim Philippines v. Celestial (G.R. 217591, 16 Jan 2023)
- Use of successive five-month contracts condemned; Court awarded full backwages and damages.

(Note: Post-2021 cases are cited for illustration; consult official reports for exact texts.)

9. Contracting, Sub-Contracting & the “ENDO” Landscape

DOLE Department Order No. 174-17 (March 2017) enumerates legitimate contracting requirements (capitalization, control test, independence).
Labor-only contracting makes the principal the direct employer, rendering the worker regular.
The 2019 Security of Tenure Bill (vetoed) would have codified these rules; nevertheless, jurisprudence and D.O. 174 continue to govern.

10. Prescriptive Periods & Forums

Claim	Period	Forum
Illegal dismissal, reinstatement, damages	4 years	NLRC/Regional Arbitration Branch
Money claims (wages, benefits)	3 years	DOLE-RO via Single-Entry Negotiation (SEnA) or NLRC
Unfair labor practice	1 year	NLRC

11. Practical Guidance

For Employees

Keep copies of contracts, IDs, payslips, evaluation forms, time cards, and HR emails.
Document verbal promises—send yourself a dated email summary.
File a SEnA request within DOLE first (mandatory 30-day conciliation) before lodging an NLRC complaint.
Seek sworn statements from co-workers to prove continuous service.

For Employers

Issue written job descriptions & performance standards on Day 1.
Conduct periodic evaluations and furnish results to the employee.
Decide on regularization before the 6-month deadline; silence is fatal.
When dismissal is unavoidable, observe the twin-notice rule meticulously.

12. Frequently Misunderstood Points

Myth	Reality
“HR hasn’t issued my regularization letter, so I’m still probationary.”	Regularization is by operation of law, not by HR paperwork.
“We can give a fresh 6-month probation if the employee changes position.”	Only if the new role is substantially different, and re-probation is clearly stipulated; otherwise, service is continuous.
“Part-timers can’t become regular.”	Part-time status does not bar regularization if the work is necessary and desirable to business.

13. Looking Ahead

Congress continues to revisit the Security of Tenure bill. Whether or not it passes, the Supreme Court has repeatedly enforced the prevailing Labor Code protections. Employers should anticipate stricter scrutiny of “fixed-term” or “project” designations. Employees, on the other hand, should vigilantly track their service period and assert rights promptly.

14. Conclusion

In Philippine labor law, time served + nature of work almost always trump creative contract drafting. Once an employee crosses the statutory threshold, the denial of regular status—absent a valid exemption—exposes the employer to reinstatement, backwages, and damages. Understanding the rules, keeping proper documentation, and observing due process are the surest ways to uphold (or defend) the right to security of tenure.

This article is for educational purposes only and does not constitute legal advice. Consult a Philippine labor lawyer for advice on specific situations.