1) Why the “probationary clause” matters

In Philippine labor law, an employee’s status (probationary, regular, project, fixed-term, casual, seasonal) determines security of tenure—especially the employer’s ability to end employment.

A probationary employment relationship is not presumed. It must be clearly established and must comply with strict legal requirements. When an employment contract (or hiring documents) does not state that employment is probationary, the employer will usually have a much harder time claiming the employee is probationary later—especially if the job is part of the company’s regular business.

2) The basic categories of employment status

Understanding the main types helps explain what happens when the contract is silent:

A. Regular employment

An employee is generally regular when:

the employee is engaged to perform activities usually necessary or desirable in the employer’s usual business or trade; or
the employee has completed the required period that converts certain non-regular categories into regular status (e.g., some casual arrangements).

Regular employees enjoy full security of tenure: they may be terminated only for just causes or authorized causes, with required due process and statutory obligations (e.g., separation pay for some authorized causes).

B. Probationary employment

Probationary employment is valid only if the employer satisfies key requirements (discussed in Section 4). It is typically limited to not more than six (6) months, except in legally recognized special arrangements (e.g., apprenticeships).

C. Project employment

Employment is tied to a specific project or undertaking, and ends upon completion of that project or phase. The project nature must be genuine and made clear.

D. Seasonal employment

Work is seasonal and employment is for the duration of the season. Repeated seasonal engagement can create recurring rights, and misuse of seasonal labels can be challenged.

E. Casual employment

Work is not usually necessary or desirable in the employer’s business. Casual employment can become regular in certain circumstances (commonly by length of service in the same activity).

F. Fixed-term employment

Employment lasts for a definite period agreed upon by the parties. Fixed-term arrangements are scrutinized because they can be abused to avoid regularization.

3) What happens when the contract has no probationary clause?

A. No probationary clause usually means: the employee is not probationary

If the employer wants probationary status, it is expected to be expressly agreed and documented at the start. When the contract is silent, the safer legal conclusion—especially where the job is part of the employer’s usual business—is that the employee is regular, not probationary.

In disputes, the employer typically carries the burden of showing that the employee was validly placed under probationary employment.

B. But silence doesn’t automatically guarantee “regular” if the job is truly non-regular by nature

A contract without a probationary clause does not automatically make someone regular if the facts show the relationship is legitimately:

project-based (clearly defined project, completion known/knowable, proper documentation),
seasonal, or
a properly structured fixed-term arrangement.

The rule of thumb is: status is determined by the nature of the work and the real agreement—not by labels alone. But when a contract is silent, the employer loses one of the key pieces of proof needed for probationary status.

4) Legal requirements for valid probationary employment (and why employers often lose cases)

Even when a contract does say “probationary,” employers still lose probation disputes if they fail to meet the legal conditions. These conditions matter even more when the contract is silent.

A. The probationary status must be clear at the time of hiring

Probationary employment must be established at the time of engagement. An employer generally cannot retroactively treat a regular employee as probationary.

B. Standards for regularization must be made known at the time of engagement

A critical requirement: the employer must inform the employee from the beginning of the reasonable standards by which the employee will be evaluated for regularization (e.g., performance metrics, behavioral standards, productivity targets, quality requirements).

If the employer fails to clearly communicate these standards at hiring, termination for “failure to meet standards” becomes legally vulnerable, and the employee may be treated as regular.

Acceptable ways standards are typically communicated:

written contract provisions,
a signed job offer with standards,
an employee handbook/code of conduct with clear evaluation standards acknowledged upon hiring,
documented performance standards given at onboarding and acknowledged.

Vague statements like “subject to performance” without defined standards are weak.

C. Time limit (commonly six months)

Probationary employment is generally limited to six months. Continuing employment beyond the probation period usually results in regular status, unless a legally recognized exception applies.

5) Regularization rights when there is no probationary clause

If the worker is treated as regular (whether from day one or by operation of law), key rights follow:

A. Security of tenure

A regular employee may be terminated only for:

Just causes (serious misconduct, willful disobedience, gross and habitual neglect, fraud/breach of trust in proper cases, commission of a crime against the employer or its representatives, and analogous causes); or
Authorized causes (redundancy, retrenchment to prevent losses, installation of labor-saving devices, closure/cessation of business, and disease under legal conditions).

B. Due process requirements

For just causes: procedural due process typically requires notice of charges, opportunity to explain, and notice of decision (often described as the “two-notice rule,” with a chance to be heard).
For authorized causes: notice to the employee and required notice to the labor authorities within the prescribed period, plus separation pay where required.

C. Protection from “failure to meet probationary standards” termination

If there is no valid probationary status, the employer generally cannot end employment merely by claiming:

“di ka pumasa,”
“not qualified,”
“not regularized,”
“end of probation,” unless termination is anchored on a lawful just/authorized cause and proper procedure.

D. Statutory and company benefits

Regular status strengthens claims to:

legally mandated benefits (e.g., 13th month pay, service incentive leave eligibility rules, SSS/PhilHealth/Pag-IBIG compliance),
benefits tied to regular employment under company policy or CBA, subject to plan rules and lawful distinctions.

6) Common employer arguments—and how the law typically evaluates them

Argument 1: “We told the employee verbally that they’re probationary.”

Verbal claims are weak against an employment contract that is silent. Probationary status and standards should be clearly provable, and standards must be communicated at hiring in a manner that can be shown by evidence.

Argument 2: “The employee signed an NDA / policy acknowledgment—so they’re probationary.”

An NDA or general policy acknowledgment does not automatically establish probationary status. What matters is whether:

probationary status was clearly agreed; and
the standards for regularization were clearly made known at the start.

Argument 3: “We issued a memorandum later saying the employee is probationary.”

Probationary status cannot usually be imposed after hiring. Late documents are often viewed with suspicion, especially when used after problems arise.

Argument 4: “It’s a 5-month contract, so it’s probationary.”

A short duration alone does not automatically mean probationary. A 5-month document can be:

a fixed-term arrangement (subject to strict scrutiny),
a probationary contract (if it clearly says so and meets standards disclosure requirements), or
a disguised attempt to avoid regularization (if repeatedly renewed or if the job is core to the business).

Argument 5: “It’s project-based even if the contract doesn’t say project.”

Project employment must be clearly established; genuine project details and documentation matter. Courts look for clarity of project scope, duration/phase, and whether project completion truly ends the work.

7) Fixed-term contracts vs probation vs “endo” tactics (practical distinctions)

Philippine law permits fixed-term employment in limited, legitimate scenarios, but it is closely examined because it can be used to undermine security of tenure.

Red flags that a “fixed term” is being used to avoid regularization:

repeated renewals for the same role doing core business tasks,
continuous need for the job even after “end” dates,
standardized short-term contracts for workers who are effectively permanent staff,
lack of genuine project/season justification.

Where these appear, workers often argue they are regular based on the nature of work and the continuity/necessity of the role.

8) What an employee should prove (and what the employer must prove)

If the issue is “probationary or regular?”

The employee typically shows: nature of duties, integration into business operations, length and continuity of service, and contract silence on probation.
The employer typically must show: a valid probationary agreement and clear standards communicated at hiring (if relying on probation), or valid project/seasonal/fixed-term basis if relying on other non-regular statuses.

Evidence that commonly matters

Job offer, contract, onboarding documents
Employee handbook acknowledgment and the specific pages on standards/metrics
Performance evaluation forms and dates given
Payslips, SSS/PhilHealth/Pag-IBIG records, work schedules
Org charts, job descriptions, emails assigning ongoing core tasks
Renewal contracts and patterns of renewal (if any)
Notices/memos related to termination and the reason stated

9) Remedies when an employee is improperly treated as probationary

A. If terminated as “not regularized” despite no probationary clause

A common claim is illegal dismissal, with potential remedies depending on findings:

reinstatement (or separation pay in lieu in certain situations),
full backwages from dismissal up to finality,
monetary claims (unpaid wages/benefits) if proven.

B. If the employee remains employed but is denied regular status/benefits

Potential claims include:

declaration of regular status,
payment of benefits withheld due to misclassification, subject to proof and lawful benefit rules.

C. Forums and typical process

Labor disputes involving termination and regularization are typically brought through labor dispute mechanisms (often starting with mandatory conciliation/mediation) and, if unresolved, through the proper labor adjudication body.

10) Key takeaways

Probationary employment is not presumed. If the employment contract has no probationary clause, the employer faces serious difficulty claiming probation later.
Even where “probationary” is written, the employer must have communicated clear regularization standards at hiring; otherwise, the employee may be treated as regular.
Regular employees enjoy security of tenure and can be terminated only for lawful causes with required due process.
Labels (probationary/project/fixed-term) are less important than the real nature of the work, the true agreement, and documented compliance with legal requirements.