1) Why the “six-month probation” rule matters

Probationary employment is a recognized arrangement under Philippine labor law that allows an employer to evaluate a new hire’s fitness for regular employment. But it is also a time-bound status. Once the legal maximum is reached, the law generally treats the employee as regular—with the security of tenure that status entails. Attempts to keep someone “probationary” beyond what the law allows are a frequent source of illegal dismissal and money-claims litigation.

2) Governing law and core concepts

a) Primary statutory basis

The controlling provision is the Labor Code rule on probationary employment (now renumbered in recent codifications; historically known as Article 281, and commonly discussed in cases and commentaries under that numbering). The substance is consistent:

Probationary employment shall not exceed six (6) months from the date the employee started working, unless the job is covered by an apprenticeship agreement or another lawful/special rule.
A probationary employee may be terminated:
1. for a just cause, or
2. for failure to qualify as a regular employee in accordance with reasonable standards made known to the employee at the time of engagement.

b) What “probationary” is—and is not

Probationary status is not a “trial contract” that can be extended indefinitely by agreement. It is a legally regulated phase of employment. The law’s limit is imposed to prevent employers from avoiding regularization and the protections of security of tenure.

3) The general rule: beyond six months, the employee becomes regular

a) Legal effect of working past the cap

As a rule, if the employee is allowed to work beyond six months, the employee becomes regular by operation of law. The employer generally loses the right to terminate based on “probationary failure,” because the probationary window has closed.

This is why many disputes are decided on a simple question: Was the employee still working after the sixth month? If yes, the “probationary” label usually cannot be used to deny regular status.

b) Contract clauses extending probation are generally void

A contract, offer letter, or company policy that says something like:

“Probation is 7 months,” or
“Probation may be extended as needed,” or
“Probation continues until confirmed,”

is typically ineffective insofar as it defeats the statutory maximum (subject to the recognized exceptions discussed below). Parties cannot contract around minimum labor standards.

c) “Employee consent” usually does not cure an unlawful extension

Even if the employee signs a document “agreeing” to extend probation beyond six months, that consent is usually not a valid waiver of the statutory protection. In labor law, waivers that reduce or defeat labor standards are commonly treated as invalid, especially when consent is obtained in a context of unequal bargaining power.

4) The other pillar: standards must be made known at the start

Even within the six-month period, a probationary employee may only be terminated for failure to qualify if the employer can show:

Reasonable standards for regularization, and
These standards were communicated at the time of engagement (or at least at the beginning of the probationary period).

Philippine Supreme Court jurisprudence repeatedly emphasizes that probation cannot be used as a vague, discretionary “we’ll see” period. The employer must be able to point to the standards and show that the employee was measured against them fairly.

Practical consequence: If the employer fails to show that standards were made known at the time of hiring, the employee can be treated as regular from day one, not merely after six months.

5) When can probation lawfully exceed six months? (Key exceptions and special regimes)

The six-month cap is the general rule for Labor Code-covered employment. The meaningful exceptions usually arise not from “company policy,” but from special rules or distinct employment regimes.

A) Private school teachers (a major, practical exception)

For teaching personnel in private schools, the governing rules come not only from the Labor Code but also from education regulations and long-standing jurisprudence recognizing a different probationary framework (commonly tied to a multi-year probationary period, often discussed as three consecutive years of satisfactory service before acquiring permanent/regular status, depending on the applicable regulations and the institution’s compliance with them).

What this means: An arrangement where a private school teacher remains “probationary” beyond six months can be lawful if it falls under the recognized education-sector regime and is implemented consistently with the applicable rules and communicated standards.

B) Apprenticeship and learnership are different—and tightly regulated

The Labor Code and related statutes recognize apprenticeship and learnership with their own formal requirements (written agreements, TESDA/DOLE-related frameworks, allowable occupations, and regulated periods). These are not casual labels an employer can attach to ordinary jobs to lengthen probation.

If the arrangement does not meet the legal requirements of apprenticeship/learnership, calling it such will not justify extending “probation.”

C) Government service is generally outside Labor Code probation rules

For civil service employment (government), probation and tenure are governed by Civil Service rules and the Constitution’s merit system, not the Labor Code framework. The “six months” probation concept is often discussed differently there.

6) Common “extension” scenarios—and how the law typically treats them

Scenario 1: Employer issues a memo “extending probation” to 7–12 months

Typical legal result (Labor Code employment): invalid extension; employee becomes regular once the six months lapse, especially if continuously allowed to work.

Scenario 2: Employer claims extension because “evaluation wasn’t finished”

Administrative delay is not a legal basis to suspend the statutory maximum. The burden is on the employer to manage its evaluation process within the period allowed by law.

Scenario 3: Employer says the employee had absences/leave, so the probation should be “tolled”

The statute’s language is commonly understood as counting from the date the employee started working, with a hard cap, not a flexible, employer-defined “days actually worked” counter—unless a recognized special rule clearly applies. As a risk matter, relying on “tolling” to go beyond six months is legally hazardous.

Scenario 4: Employer terminates at month 5, then “rehire as probationary” for the same role

This is frequently attacked as a circumvention of security of tenure. If the facts show continuity of service, same job, same work relationship, or a scheme to avoid regularization, tribunals may treat the employee as regular and the separation as illegal.

Scenario 5: Employer changes the job title near month 6 and restarts probation

A genuine change of role can sometimes justify a new probationary evaluation for a truly different position with distinct qualifications and communicated standards. But if the change is cosmetic, tribunals may treat it as a circumvention.

7) Computing the six-month period (practical guide)

In practice, the six months is ordinarily counted as six calendar months from the start date. Many employers treat the deadline as the day immediately preceding the same date in the sixth month thereafter (e.g., start on January 15 → sixth month completes around July 14). Because computation details can affect outcomes, employers commonly set internal cutoffs (e.g., conduct final evaluation and issue a decision before the end of the sixth month) to avoid disputes.

8) Termination rules during probation (and why extensions often backfire)

a) Grounds

A probationary employee may be terminated for:

Just causes (serious misconduct, willful disobedience, gross and habitual neglect, fraud, commission of a crime, etc.), or
Failure to meet regularization standards that were made known at the time of engagement.

b) Due process

Even probationary employees are entitled to due process. For just cause, the twin-notice rule and opportunity to be heard remain central. For failure to meet standards, the employer must still give notice and be able to demonstrate fair application of the standards.

c) Why “extend probation instead of deciding” is risky

When the employer delays the decision and the employee continues working, the law may treat the employee as regular, after which:

termination for “probationary failure” is no longer available, and
dismissal must meet the stricter standards of just/authorized cause applicable to regular employees, plus due process.

9) Indicators that an “extension” is likely unlawful

Tribunals often look at the overall conduct of the employer. Red flags include:

No clear, written, communicated standards at hiring
Repeated “extensions” or open-ended probation
Extension used as leverage (e.g., “sign this or you’re out”)
Continued assignment to regular, necessary, and desirable work of the business with no meaningful evaluation system
Patterns of rolling probation across many employees

10) Legal consequences of unlawful extension

a) Regularization by operation of law

Once regular, the employee gains security of tenure. The employer cannot lawfully treat the employee as terminable at will.

b) Illegal dismissal exposure

If the employer dismisses the employee after the six-month cap on the basis of “failed probation,” the dismissal is commonly attacked as illegal. Remedies in illegal dismissal cases can include:

Reinstatement (or separation pay in lieu when reinstatement is no longer feasible),
Full backwages, and
Other monetary awards depending on the case (e.g., damages and attorney’s fees when warranted).

c) Money claims even without dismissal

Disputes may also arise on benefits and entitlements (e.g., conversion to regular status affecting benefits, leave conversions, retirement plan participation, and seniority-based entitlements).

11) Practical compliance framework (for lawful probation management)

For employers

Use a written probationary employment agreement clearly stating probationary status and duration (not beyond six months, unless a recognized special regime applies).
State the regularization standards in measurable terms and provide them at the time of engagement.
Document coaching and evaluations during the period.
Decide before the deadline—regularize or terminate with proper basis and due process.
Avoid “extensions” as a default risk-management tool; they often create bigger liability than making a timely decision.

For employees

Keep copies of the job offer, contract, handbook provisions, performance metrics, and evaluation records.
Note when and how standards were communicated (or not communicated).
Track the exact start date and continuity of service to determine when regularization attaches by law.

12) Bottom line

In Labor Code-covered employment, probationary employment generally cannot be extended beyond six months. Allowing an employee to work past the statutory cap usually results in regular employment by operation of law, and any later dismissal justified only as “probationary failure” is commonly vulnerable to being declared illegal. The legally defensible approach is not to “extend probation,” but to set clear standards at hiring, evaluate within the period, and act before the deadline—except in recognized special regimes (most notably private school teaching personnel) where longer probationary frameworks may lawfully apply.