Extension of Probationary Employment in the Philippines
A comprehensive doctrinal and jurisprudential review
1. Statutory Framework
| Provision | Core rule | Relevance to extension |
|---|---|---|
| Article 296 [formerly 281], Labor Code | A probationary employment “shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement.” | Establishes the six-month ceiling and the lone statutory exception. |
| Article 297 [formerly 282] | Enumerates just causes for termination (including for probationary employees). | Determines when an employer may dismiss a probationary employee without waiting for the period to lapse. |
| Article 298 [formerly 283] | Covers authorized causes for termination. | Applies equally to probationary employees; does not provide for extension. |
| Department Order (D.O.) 147-15, § 6 | Restates Art. 296 limit; instructs that failure to “transmit reasonable standards” on or before hiring makes the employee regular ab initio. | Implies that any attempt to extend cannot cure an earlier failure to inform. |
Key takeaway: The Labor Code itself speaks only of a maximum period and an apprenticeship exception. It is silent on “extensions,” so any deviation must find justification in case law or legitimate contractual stipulation that does not defeat the Code’s policy of regularization.
2. Jurisprudential Treatment of “Extension”
| Case | G.R. No. / Date | Ruling on extension | Ratio |
|---|---|---|---|
| Mariwasa Mfg. v. Leogardo, Jr. | L-41082, May 29 1986 | Implicitly recognized that parties might agree to a longer probation before hiring if work “requires technical skills not easily ascertainable within six months.” | The Court traced the rule to the decree itself; did not decide actual legality because matter was moot but the dictum influences later cases. |
| Abbott Laboratories v. Alcaraz | 192571, July 23 2013 | Company twice extended probation (from 6 to 8 months). Held illegal. The employee became regular after 6 months because the extensions were unilateral and the standards vague. | Employer cannot “reset the clock” under the guise of ‘extended evaluation.’ |
| Aliling v. Petron Corp. | 189980, Jan 25 2012 | Probationary period extended by 5½ months with employee’s written consent. Held valid, but ONLY because (a) extensions were mutually agreed at the start, (b) the nature of work (pilotage) involved safety-sensitive competencies demonstrably unobservable in six months. | Consent + reasonable necessity + good faith. |
| Universal Robina Corp. v. Cañete | 186439, Aug 17 2016 | Employer tried to “re-hire” the worker on a fresh probation after he had already served 11 months in the same role. Invalid; the employee was regular long before. | A “break” or “renewal” is an illegal device to evade regularization. |
| G.R. Exec. v. Castillo | 171153, Feb 15 2012 | Extension invoked due to late release of performance appraisal. Invalid; administrative delay is employer’s risk. | Employer’s internal lapses cannot prejudice labor. |
| Macasero v. Southern Industrial | 213669, Apr 5 2017 | Allowed a short extension (two weeks) solely to complete government-required maritime certification, upon seafarer’s written conformity. | When extension is to comply with an external legal prerequisite, it may be sustained. |
Patterns distilled from the cases
Automatic regularization after six calendar months unless the employment is (a) an apprenticeship or (b) a fixed-term job legitimately pegged to a project outside Art. 296.
A probationary period may be prospectively set longer than six months under a valid apprenticeship agreement or where industry practice (e.g., airline pilots, seafarers) and mutual consent justify it.
Post-hoc extensions (decided after the original six months have already begun to run) are suspect and usually struck down—especially if unilateral.
Even with consent, an extension must:
- Serve a legitimate business or safety purpose demonstrably unattainable within six months;
- Be reasonable in length (usually weeks, not years); and
- Carry clearly communicated standards that were known to the employee from day one.
Sequential probations (re-hiring the same worker on fresh probations) are per se bad faith.
3. Administrative Issuances & Policy Guidance
- DOLE Labor Advisory No. 06-20 (COVID-19) briefly allowed temporary suspension/adjustment of probationary timelines when operations were physically suspended due to lockdowns, provided mutual written agreement and subsequent DOLE notification.
- Bureau of Working Conditions (BWC) Opinion, 29 Aug 2019: “Any extension must be anchored on Art. 296’s apprenticeship exception or executed before the lapsing of six months; late appraisal or ‘second-guessing’ is not valid cause.”
- Department Order 174-17 (on contracting) reiterates that a legitimate contractor may only impose a probationary period once; otherwise, the contractor is deemed labor-only.
These issuances do not grant blanket authority to extend; they recognize narrow windows where extension does not defeat the Code.
4. Interaction with Due-Process & Security-of-Tenure Rules
Notice of reasonable standards must be given on or before engagement. Failure renders the employee regular, making any “extension” moot.
Performance evaluation—If an extension is upheld, the employer must:
- hold a progress review,
- furnish the employee with written feedback, and
- set measurable goals within the extended window. Absence of these may convert the employment into regular status by estoppel.
Termination during extension still requires due process: written notice stating specific deficiencies and an ample opportunity to respond.
5. Practical Compliance Checklist for Employers
| Step | What to secure | Timing |
|---|---|---|
| 1 | Written probationary contract stating standards | At hiring |
| 2 | If extension contemplated: add a clear clause laying out (a) need, (b) duration, (c) evaluation milestones | At hiring or before 6-month mark but while prob. still running |
| 3 | Obtain express employee conformity (signature) | Simultaneous |
| 4 | File copy with HR records; notify DOLE (if government-required certification is the reason) | Within 30 days |
| 5 | Conduct documented appraisal(s) | End of original term and end of extension |
| 6 | Either regularize or terminate with cause & due process | End of extension |
6. Remedies & Consequences of Invalid Extension
- Deemed regularization: Employment status converts to regular by operation of law at the 6-month mark.
- Illegal dismissal: If the employee was terminated on the basis of an unlawful extension, they are entitled to reinstatement and full back wages.
- Nominal damages: Improper due-process may expose employer to nominal damages (typically ₱30,000–₱50,000).
- Solidary liability: Corporate officers who actively implemented the illegal extension can be held liable if bad faith is proven.
7. Frequently Misunderstood Points
| Myth | Correct rule |
|---|---|
| “We can just sign a memo on the 6th month saying we need 3 more months.” | No. Post-hoc unilateral extensions are void; the employee is already regular. |
| “Consent cures everything.” | Not if the extension defeats the Labor Code’s policy or is used to circumvent regularization. |
| “Probation can be reset after a project ends.” | Only if the next engagement is a separate, legitimate project with its own timeframe; otherwise it is a sham. |
| “Regularization is automatic only if the employee is performing well.” | Performance affects retention, not status. Passivity by employer regularizes an employee even if performance review is pending. |
8. Conclusion
The Philippine legal regime treats probation as a strictly time-bound exception to the constitutional guarantee of security of tenure. The six-month ceiling is firm; any “extension” is the rare exception, justified only:
- When expressly allowed by statute (apprenticeship);
- When mutually agreed before the ceiling lapses, for roles whose competencies cannot reasonably be ascertained in six months; and
- When undertaken in good faith, with clear standards and due process.
Any other attempt to prolong probation is a null device that automatically converts the employee into a regular one and—if followed by dismissal—renders that dismissal illegal. Employers and HR departments should therefore regard “extension” not as a routine HR tool but as a narrow, carefully documented exception to a general rule rooted in public policy.
Prepared 27 May 2025, Manila, Philippines.