In the Philippine labor landscape, the probationary period is a critical window for both the employer to evaluate an employee's fitness for a role and the employee to assess the company culture. While the Labor Code provides a general limit for this period, the occurrence of a sickness or accident introduces specific legal nuances regarding the extension of the probationary status.
1. The General Rule on Probationary Employment
Under Article 281 of the Labor Code of the Philippines, probationary employment shall not exceed six (6) months from the date the employee started working. If the employee is allowed to work after the probationary period, they shall be considered a regular employee by operation of law.
2. Can the Period be Extended?
Generally, the six-month period is strictly construed. However, the Supreme Court has recognized that the probationary period may be extended under specific circumstances, provided there is a voluntary agreement between the employer and the employee.
When an employee suffers a sickness or an accident that prevents them from performing their duties, the employer is unable to conduct a proper evaluation. In such cases, extending the period is seen as a gesture of "liberalization" rather than a penalty, as it gives the employee a second chance to prove their worth once they recover.
3. Requirements for a Valid Extension
To ensure that an extension due to illness or accident is legally defensible and does not result in the "automatic regularization" of the employee, the following conditions must be met:
- Written Agreement: The extension must be documented in writing and signed by both parties before the original six-month period expires.
- Reasonable Duration: The extension should be proportional to the time lost due to the illness or accident.
- Purpose of Evaluation: The primary intent must be to allow the employer to complete the performance evaluation that was interrupted by the medical leave.
4. Sickness as a Ground for Termination vs. Extension
It is important to distinguish between extending probation and terminating it.
- Disease as a Ground for Termination: Under Article 299 (formerly 284), an employer may terminate an employee found to be suffering from a disease that is prohibited by law or prejudicial to their health or the health of co-workers. However, this requires a certification by a competent public health authority that the disease cannot be cured within six months even with proper medical treatment.
- Extension as an Alternative: If the sickness is temporary (e.g., a fractured bone from an accident or a severe flu), the employer and employee may opt for an extension to "pause" the evaluation clock.
5. Jurisprudence: The Mariwasa vs. Leogardo Doctrine
The landmark case of Mariwasa Manufacturing, Inc. vs. Leogardo established that the six-month probationary period is not an absolute limit. The Supreme Court ruled that an extension is valid if it is for the benefit of the employee.
"The extension of the probationary period was an act of liberality on the part of the employer... to afford the employee another opportunity to improve his performance and qualify for regular employment."
6. Summary of Key Risks
| Risk Factor | Consequence |
|---|---|
| No written agreement | The employee may be deemed regular by operation of law after the 6th month. |
| Extension after 6 months | If the agreement is signed after the original period ends, the employee is already regular; the extension is void. |
| Failure to provide standards | If the employer fails to inform the employee of the standards for regularization at the start, the employee is considered regular from day one. |
7. Conclusion
An extension of the probationary period due to sickness or accident is a legally permissible exercise of management prerogative in the Philippines, provided it is done in good faith and with the employee's consent. It serves as a middle ground that protects the employer's right to hire qualified staff while protecting the employee from immediate dismissal due to unforeseen health issues.