I. Introduction

A probationary employee in the Philippines is not a “temporary” employee who may be dismissed at will. While the employer is allowed to observe and evaluate the employee during the probationary period, the employee is still protected by the Labor Code, constitutional due process, and settled labor-law principles.

A probationary employee may be dismissed only for a lawful cause and only after compliance with the proper procedure. If the dismissal is done without a valid reason, without proper notice, without previously communicated standards, or in bad faith, the employee may file an illegal dismissal case before the National Labor Relations Commission, commonly known as the NLRC.

This article explains how a probationary employee may determine whether there was illegal dismissal, what documents to prepare, where and how to file the case, what happens during the proceedings, what remedies may be awarded, and what defenses employers commonly raise.

II. What Is a Probationary Employee?

A probationary employee is one who is hired on a trial basis for the purpose of determining whether they are qualified for regular employment.

Under Philippine labor law, probationary employment generally cannot exceed six months from the date the employee started working, unless a longer period is allowed by law, required by the nature of the work, covered by an apprenticeship agreement, or voluntarily agreed upon under valid circumstances.

The key idea is that the employee is being tested based on reasonable standards made known by the employer at the time of engagement.

A probationary employee is not yet a regular employee, but they are still an employee. They are entitled to labor standards benefits, protection from unlawful termination, and due process.

III. Is a Probationary Employee Protected Against Illegal Dismissal?

Yes.

A probationary employee may be lawfully dismissed only under any of the following grounds:

Just causes, such as serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud, breach of trust, commission of a crime against the employer or the employer’s representative, or analogous causes.
Authorized causes, such as redundancy, retrenchment, closure, installation of labor-saving devices, or disease under legally recognized conditions.
Failure to qualify as a regular employee, provided that the employee was informed of the reasonable standards for regularization at the time of hiring and was evaluated in good faith.

If none of these applies, or if the employer failed to follow due process, the dismissal may be illegal or procedurally defective.

IV. The Special Rule on Probationary Employees: Standards Must Be Made Known

The most important rule in probationary employment is this:

The employer must inform the probationary employee of the standards for regularization at the time of hiring.

This means the employer should clearly communicate what the employee must achieve or satisfy to become regular. These standards may be contained in:

The employment contract;
Job offer;
Appointment letter;
Employee handbook;
Performance scorecard;
Job description;
Written probationary evaluation form;
Company policy acknowledged by the employee;
Orientation materials; or
Other written documents showing that the employee knew the standards from the beginning.

If the employer did not communicate the standards at the time of engagement, the employee may be deemed a regular employee from day one, except when the job is self-descriptive and the standards are obvious from the nature of the position.

For example, a sales employee may be expected to sell, a driver may be expected to drive safely and follow traffic rules, and a cashier may be expected to handle money accurately. Still, employers are safer when standards are written and acknowledged.

V. When Is the Dismissal of a Probationary Employee Illegal?

The dismissal may be illegal in several situations.

1. No standards for regularization were communicated

If the employee was merely told, “You are under probation for six months,” but was not informed what standards they had to meet, a dismissal for “failure to qualify” may be invalid.

The law does not allow an employer to invent standards near the end of the probationary period.

2. The reason for dismissal was vague or unsupported

Statements like “poor performance,” “not fit,” “failed evaluation,” or “management prerogative” are not automatically valid. The employer must show factual basis.

There should be proof such as evaluations, attendance records, incident reports, performance metrics, customer complaints, warning notices, or documented coaching sessions.

3. The employee was dismissed before the end of probation without valid basis

An employer does not have to wait until the sixth month to dismiss a probationary employee. However, if the employer dismisses the employee early, it must still have a lawful reason and must comply with due process.

A probationary employee cannot be removed arbitrarily simply because management “changed its mind.”

4. The employee was dismissed after six months without being regularized

If the employee was allowed to work beyond the probationary period, the employee may become regular by operation of law.

The employer generally cannot extend probation beyond six months without a valid legal basis. A so-called “extension” may be invalid if it is merely used to avoid regularization.

5. The dismissal was discriminatory or retaliatory

Dismissal may be illegal if it was motivated by unlawful discrimination, union activity, pregnancy, filing of complaints, refusal to perform illegal acts, whistleblowing, or assertion of labor rights.

6. The employer failed to observe due process

Even when there is a valid reason, the employer must observe procedural due process. The required procedure depends on the type of dismissal.

For just causes, the employer must generally give the employee notice of the charge, an opportunity to explain, and a notice of decision.

For authorized causes, written notice must generally be served on both the employee and the Department of Labor and Employment at least thirty days before the effectivity of termination.

For failure to qualify as a regular employee, the employer should give written notice explaining the failure to meet the reasonable standards for regularization.

VI. Substantive Due Process and Procedural Due Process

Illegal dismissal cases usually revolve around two questions:

Was there a valid reason for dismissal?
Was the proper procedure followed?

These are called substantive due process and procedural due process.

A. Substantive due process

Substantive due process refers to the lawful ground for dismissal. The employer must prove that the termination was based on a valid cause.

In probationary employment, the employer may rely on failure to meet reasonable standards, but it must show that:

The standards were reasonable;
The standards were made known to the employee at the time of hiring;
The employee failed to meet those standards;
The evaluation was done in good faith; and
The dismissal was not arbitrary, discriminatory, or retaliatory.

B. Procedural due process

Procedural due process refers to the steps taken before termination.

The required procedure varies depending on the ground used. If the employer alleges misconduct, negligence, fraud, or similar just causes, the twin-notice rule and opportunity to be heard generally apply.

If the employer alleges failure to meet probationary standards, the employee should at least be given written notice of non-regularization or termination, stating the basis for the decision.

Failure to follow procedure does not always make the dismissal illegal if the cause is valid, but it may entitle the employee to nominal damages.

VII. Common Signs of Illegal Dismissal During Probation

A probationary employee should consider filing a case if any of the following happened:

No written contract or standards were given;
The employer gave no clear reason for termination;
The employee was dismissed verbally only;
The employer said, “Do not report anymore,” without written notice;
The employee was removed from the schedule without explanation;
The employee’s access was disabled and they were barred from work;
The employer forced the employee to resign;
The employer required the employee to sign a quitclaim before releasing final pay;
The termination was based on false accusations;
The employee was dismissed after complaining about unpaid wages or benefits;
The employee was dismissed for being pregnant, sick, injured, or for asserting rights;
The employee was dismissed shortly before becoming regular without prior evaluation;
The employer extended probation without valid agreement or legal basis;
The employee continued working beyond six months but was still treated as probationary.

VIII. Constructive Dismissal of a Probationary Employee

Illegal dismissal is not limited to express termination. A probationary employee may also be constructively dismissed.

Constructive dismissal occurs when the employer makes continued employment impossible, unreasonable, or unbearable, leaving the employee with no real choice but to resign or stop reporting.

Examples include:

Demotion without valid reason;
Significant reduction of pay;
Removal of work duties;
Hostile treatment intended to force resignation;
Transfer to an unreasonable location;
Repeated humiliation or harassment;
Threats of termination unless the employee resigns;
Forced signing of resignation letters;
Placing the employee on floating status without basis;
Excluding the employee from work tools, systems, or schedules.

A resignation is not valid if it was obtained through force, intimidation, deceit, or pressure.

IX. Forced Resignation During Probation

Some employers avoid issuing a termination notice by telling the probationary employee to resign. This may still be illegal dismissal if the resignation was not voluntary.

A resignation must be the employee’s free and voluntary act. If the employee was told that they would not receive salary, clearance, or final pay unless they signed a resignation letter, the resignation may be challenged.

Evidence of forced resignation may include:

Messages from supervisors pressuring the employee to resign;
A resignation letter prepared by the employer;
Sudden demand to resign without prior issues;
Threats of blacklisting or withholding pay;
Witness testimony;
Timeline showing the employee immediately protested the resignation;
Filing of a complaint soon after the alleged resignation.

X. Where to File an Illegal Dismissal Case

An illegal dismissal case is generally filed with the National Labor Relations Commission, through the appropriate Regional Arbitration Branch.

Before the case reaches compulsory arbitration, it usually passes through the Single Entry Approach, or SEnA, before the Department of Labor and Employment or the NLRC, depending on the office where the request is filed.

SEnA is a mandatory conciliation-mediation process intended to encourage settlement before formal litigation.

XI. What Is SEnA?

SEnA stands for Single Entry Approach. It is a required administrative mechanism for the speedy, impartial, and inexpensive settlement of labor issues.

A probationary employee who believes they were illegally dismissed may first file a Request for Assistance, often called an RFA.

During SEnA, a desk officer will call the parties to a conference and attempt to help them settle. Possible settlement terms may include payment of separation pay, back wages, final pay, certificate of employment, release of documents, or other agreed terms.

If the parties settle, the agreement is usually reduced into writing.

If settlement fails, the employee may proceed to file a formal complaint with the NLRC.

XII. Prescriptive Period: When Should the Case Be Filed?

An illegal dismissal case must generally be filed within four years from the date of dismissal.

However, the employee should not wait. Delay can weaken the case because evidence may disappear, witnesses may become unavailable, and documents may become harder to obtain.

Money claims arising from employment, such as unpaid wages, overtime pay, holiday pay, service incentive leave pay, and 13th month pay, generally have a shorter prescriptive period of three years.

For practical purposes, the employee should file as soon as possible after dismissal.

XIII. Documents and Evidence to Prepare

The employee should gather as much evidence as possible before filing.

Important documents include:

Employment documents

Job offer;
Employment contract;
Appointment letter;
Probationary employment agreement;
Job description;
Employee handbook;
Company policies;
Training materials;
Regularization standards;
Performance evaluation forms;
Written notices or memos;
Company identification card;
Work schedules;
Attendance records;
Payslips;
Payroll records;
Certificates of employment;
Clearance documents.

Proof of dismissal

Termination letter;
Notice of non-regularization;
Email or text message saying not to report anymore;
Chat messages from supervisors;
Deactivated work account screenshots;
Removed schedule screenshots;
Incident reports;
Meeting notes;
Audio or written admissions, if legally obtained;
Witness statements.

Proof of good performance

Commendations;
Positive customer feedback;
Sales records;
Productivity records;
Awards or recognition;
Screenshots of completed tasks;
Emails praising work;
Absence of prior warnings;
Proof of passing earlier evaluations.

Proof of damages and claims

Payslips;
Bank payroll credits;
Computation of unpaid wages;
Proof of benefits;
Medical records if relevant;
Proof of job search after dismissal;
Expenses caused by dismissal.

The employee should keep original copies when possible and prepare photocopies or scanned copies for filing.

XIV. How to File the Case Step by Step

Step 1: Write down the facts

Before filing, the employee should prepare a clear timeline.

The timeline should include:

Date of hiring;
Position;
Salary;
Probationary period;
Date standards were or were not given;
Evaluations received;
Warnings or lack of warnings;
Date and manner of dismissal;
Names of persons involved;
Communications after dismissal;
Amounts unpaid.

A clear timeline helps the labor arbiter understand the case.

Step 2: File a Request for Assistance under SEnA

The employee may go to the proper DOLE or NLRC office and file a Request for Assistance. The employee should bring identification and relevant documents.

The RFA should state that the employee is complaining of illegal dismissal, non-payment of wages or benefits, forced resignation, non-regularization, or other related claims.

Step 3: Attend the mandatory conferences

The employee should attend all scheduled conferences. Failure to appear may result in dismissal or closure of the request.

During the conference, the employee may explain the complaint and present a settlement proposal.

Settlement is optional. The employee should not sign anything unless they understand its consequences.

Step 4: If no settlement is reached, file a formal complaint

If SEnA fails, the employee may file a formal complaint before the NLRC Regional Arbitration Branch.

The complaint form usually requires:

Name and address of employee;
Name and address of employer;
Position;
Date hired;
Date dismissed;
Salary rate;
Claims;
Reliefs sought.

The employee may include claims for illegal dismissal, reinstatement, back wages, separation pay in lieu of reinstatement, unpaid wages, holiday pay, service incentive leave pay, 13th month pay, damages, attorney’s fees, and other benefits.

Step 5: Attend mandatory conciliation and mediation before the Labor Arbiter

After filing, the case is raffled to a Labor Arbiter. The parties are usually summoned to mandatory conferences.

The purpose is to clarify issues, explore settlement, and require submission of position papers if no settlement is reached.

Step 6: Submit a position paper

The position paper is very important. Labor cases are often decided based on position papers, affidavits, and documentary evidence rather than a full trial.

The employee’s position paper should explain:

The facts;
The legal basis for illegal dismissal;
Why the employer’s reason is invalid;
How due process was violated;
The reliefs sought;
The computation of monetary claims;
The evidence supporting each allegation.

Supporting documents should be attached and marked as annexes.

Step 7: Submit reply or rejoinder if required

The employer will submit its own position paper. The employee may be required or allowed to submit a reply.

The reply should directly address the employer’s defenses.

Step 8: Wait for the Labor Arbiter’s decision

The Labor Arbiter will issue a decision based on the pleadings and evidence.

If the employee wins, the decision may order reinstatement, back wages, separation pay, monetary benefits, damages, attorney’s fees, or other reliefs.

If either party disagrees, they may appeal to the NLRC within the required period.

XV. What to Put in the Complaint

The complaint should clearly identify the causes of action and monetary claims. Depending on the facts, the employee may include:

Illegal dismissal;
Constructive dismissal;
Forced resignation;
Non-payment of salary;
Underpayment of wages;
Non-payment of overtime pay;
Non-payment of holiday pay;
Non-payment of rest day premium;
Non-payment of night shift differential;
Non-payment of service incentive leave pay;
Non-payment of 13th month pay;
Non-release of final pay;
Non-issuance of certificate of employment;
Damages;
Attorney’s fees.

The employee should not exaggerate claims. Unsupported claims may weaken credibility.

XVI. Burden of Proof in Illegal Dismissal Cases

In illegal dismissal cases, the employee must first establish the fact of dismissal.

Once dismissal is shown, the employer bears the burden of proving that the dismissal was valid.

For probationary employees, the employer must prove that:

The employee was truly probationary;
The probationary period was valid;
The standards for regularization were communicated at the time of hiring;
The employee failed to meet those standards or committed a valid ground for dismissal;
The decision was supported by evidence;
The procedure required by law was followed.

If the employer cannot prove these, the dismissal may be declared illegal.

XVII. Remedies Available to a Probationary Employee

The remedies depend on the facts and the findings of the Labor Arbiter.

1. Reinstatement

If the dismissal is illegal, the employee may be entitled to reinstatement.

However, in probationary employment, reinstatement may depend on the circumstances, especially whether the employee should be treated as regular, whether the probationary period has lapsed, and whether reinstatement remains practical.

If the employee was dismissed because no standards were communicated, the employee may argue that they were regular from the start and should be reinstated as a regular employee.

2. Back wages

Back wages compensate the employee for income lost due to illegal dismissal.

The computation may depend on whether the employee is deemed regular or remains probationary. If the employee is considered regular, back wages may be computed from the time of dismissal until actual reinstatement or finality of decision, depending on the applicable ruling.

If the employee is treated only as probationary, some cases may limit monetary relief based on the unexpired portion of the probationary period, depending on the facts and legal theory.

3. Separation pay in lieu of reinstatement

Separation pay may be awarded instead of reinstatement when reinstatement is no longer feasible, such as when there is strained relations, closure of business, abolition of position, or other circumstances making return impractical.

4. Unpaid wages and benefits

The employee may recover unpaid salary and statutory benefits, including where applicable:

Unpaid basic wages;
Overtime pay;
Holiday pay;
Rest day premium;
Night shift differential;
Service incentive leave pay;
13th month pay;
Final pay;
Other contractual or company benefits.

5. Nominal damages

If the dismissal had a valid cause but the employer failed to follow procedural due process, the employee may be awarded nominal damages.

6. Moral and exemplary damages

Moral damages may be awarded when the dismissal was attended by bad faith, fraud, oppression, or acts contrary to morals, good customs, or public policy.

Exemplary damages may be awarded when the employer’s conduct was wanton, oppressive, or malevolent, and the award is meant to serve as a deterrent.

7. Attorney’s fees

Attorney’s fees may be awarded in proper cases, especially when the employee was forced to litigate to recover wages or benefits.

XVIII. How to Compute Claims

A basic computation may include:

Back wages

Monthly salary multiplied by the number of months from dismissal until reinstatement or finality, depending on the applicable remedy.

Example:

Monthly salary: ₱25,000 Period from dismissal to decision: 10 months Basic back wages: ₱250,000

Additional benefits may be included if legally or contractually due.

Unpaid salary

Daily rate multiplied by unpaid workdays.

Example:

Daily rate: ₱1,000 Unpaid days: 8 Unpaid salary: ₱8,000

13th month pay

Total basic salary earned during the calendar year divided by 12.

Example:

Basic salary earned: ₱120,000 13th month pay: ₱10,000

Service incentive leave

If applicable, five days per year for covered employees who have rendered at least one year of service, unless the employer already provides equivalent or better leave benefits.

A probationary employee who worked less than one year may not yet be entitled to full service incentive leave pay, unless company policy or contract provides otherwise.

Separation pay

The computation depends on the basis of the award. It may be one month pay per year of service, or another rate depending on the legal basis and circumstances.

In probationary employment, the amount may vary depending on whether the employee is deemed regular, whether reinstatement is viable, and what the Labor Arbiter finds proper.

XIX. Employer Defenses in Probationary Dismissal Cases

Employers commonly raise the following defenses:

1. The employee failed to meet standards

The employer may argue that the employee failed performance metrics, attendance requirements, quality standards, behavioral expectations, or training benchmarks.

The employee should respond by asking:

Were these standards communicated at hiring?
Were they reasonable?
Were they applied consistently?
Is there proof of failure?
Were other employees treated differently?
Was the evaluation made in good faith?

2. The employee was still probationary

The employer may argue that because the employee was probationary, the employer could terminate the employee anytime.

This is incorrect. Probationary status does not remove the employee’s right to security of tenure.

3. The employee voluntarily resigned

The employee may rebut this by showing lack of voluntariness, immediate protest, coercion, pressure, or circumstances inconsistent with resignation.

4. The employee abandoned work

Abandonment requires failure to report for work and a clear intention to sever employment. Mere absence is not enough.

Filing an illegal dismissal case is generally inconsistent with abandonment because it shows that the employee wants to preserve or recover employment.

5. The employee committed misconduct

If misconduct is alleged, the employer must prove the act and comply with due process. The employee should examine whether there was a notice to explain, opportunity to be heard, and notice of decision.

6. The case was settled through quitclaim

Quitclaims are not automatically invalid, but they may be set aside if the consideration was unconscionably low, the employee did not understand the waiver, there was coercion, or the waiver was contrary to law.

XX. The Role of Quitclaims, Waivers, and Releases

Many employees are asked to sign quitclaims before receiving final pay. A quitclaim is a document where the employee acknowledges receipt of payment and waives further claims.

A quitclaim may be valid if:

It was voluntarily signed;
The employee understood it;
The consideration was reasonable;
There was no fraud, force, intimidation, or undue pressure;
It does not waive rights contrary to law.

A quitclaim may be challenged if the employee was forced to sign it or if the amount paid was grossly inadequate.

An employee should be careful before signing any waiver. Once signed, it may be used as a defense by the employer.

XXI. Final Pay Is Different From Illegal Dismissal Claims

Final pay usually includes unpaid salary, proportionate 13th month pay, unused leave conversion if applicable, and other amounts due under policy or contract.

Receiving final pay does not automatically mean the employee waived the right to file an illegal dismissal case, unless a valid quitclaim or settlement agreement was signed.

An employer cannot lawfully withhold earned wages simply because the employee refuses to waive claims.

XXII. Certificate of Employment

An employee may request a certificate of employment. A certificate of employment generally states the employee’s position, dates of employment, and sometimes duties.

The employer should not use the certificate as leverage to force the employee to sign a waiver.

A request for a certificate of employment may be included in the labor complaint if the employer refuses to issue it.

XXIII. Practical Strategy Before Filing

Before filing, the employee should:

Preserve all evidence.
Take screenshots of messages and emails.
Save payslips and contracts.
Write a detailed timeline.
Identify witnesses.
Avoid emotional or threatening messages.
Avoid signing quitclaims without understanding them.
Prepare a reasonable settlement proposal.
Compute claims conservatively.
File promptly.

The employee should communicate in writing whenever possible. Written communications are easier to prove than verbal conversations.

XXIV. Sample Timeline for a Probationary Illegal Dismissal Case

A useful timeline may look like this:

January 10, 2026: Employee hired as probationary sales associate.
January 10, 2026: No written standards for regularization were given.
February 15, 2026: Employee received positive feedback from supervisor.
March 20, 2026: Employee asked HR about unpaid overtime.
March 25, 2026: Supervisor became hostile and reduced employee’s shifts.
April 1, 2026: Employee was told verbally not to report anymore.
April 2, 2026: Employee requested written explanation.
April 5, 2026: HR stated employee “did not pass probation” but gave no evaluation.
April 8, 2026: Employee filed Request for Assistance.

This kind of chronology helps show motive, lack of standards, lack of due process, and the fact of dismissal.

XXV. Sample Allegations in a Complaint

A probationary employee may allege the following, depending on the facts:

“Complainant was hired as a probationary employee on [date] as [position] with a monthly salary of [amount]. At the time of hiring, respondent did not inform complainant of any reasonable standards for regularization. Complainant performed assigned duties and was not given any written warning or valid evaluation. On [date], complainant was verbally informed not to report for work anymore. No notice to explain, hearing, evaluation, or written notice of termination was given. Respondent’s act constitutes illegal dismissal. Complainant prays for reinstatement, full back wages, unpaid salaries and benefits, damages, attorney’s fees, and other reliefs just and equitable under the premises.”

This should be customized to the actual facts.

XXVI. Settlement: Should the Employee Settle?

Settlement can be practical, especially when the employee prefers a faster resolution. However, the employee should evaluate whether the amount is fair.

A settlement may include:

Payment of unpaid salary;
Proportionate 13th month pay;
Final pay;
Separation amount;
Certificate of employment;
Neutral reference;
Non-disparagement clause;
Waiver and release.

Before agreeing, the employee should check:

Whether the amount is reasonable;
Whether statutory benefits are included;
Whether taxes or deductions are clear;
Whether payment date is specific;
Whether the agreement waives all claims;
Whether the employer will issue documents;
Whether the settlement is enforceable.

A settlement should be written clearly and signed voluntarily.

XXVII. What Happens If the Employee Wins?

If the employee wins before the Labor Arbiter, the employer may be ordered to pay monetary awards and/or reinstate the employee.

The employer may appeal to the NLRC, but usually must comply with appeal requirements. Monetary awards may require a bond from the employer for appeal.

If the decision becomes final and executory, the employee may move for execution. The NLRC sheriff may enforce the award through lawful means.

XXVIII. What Happens If the Employee Loses?

If the employee loses before the Labor Arbiter, the employee may appeal to the NLRC within the required period.

If the NLRC denies the appeal, further remedies may be available, such as a motion for reconsideration and, in proper cases, a petition before higher courts.

Strict deadlines apply. Missing an appeal period can cause the decision to become final.

XXIX. Important Deadlines and Periods

The employee should remember these general periods:

Illegal dismissal: generally file within four years.
Money claims: generally within three years.
Appeal from Labor Arbiter decision: usually a short, strict period.
Employer notice for authorized causes: generally at least thirty days before effectivity.
Probationary period: generally not more than six months, unless valid exception applies.

Because labor deadlines are strict, employees should act quickly.

XXX. Probationary Employment vs. Project, Seasonal, Casual, and Fixed-Term Employment

Some employers misclassify employees to avoid regularization.

A probationary employee is different from:

Project employee

A project employee is hired for a specific project or undertaking, the completion of which is determined at the time of engagement.

Seasonal employee

A seasonal employee works during a particular season or period.

Casual employee

A casual employee performs work not usually necessary or desirable to the employer’s business, unless they become regular by law.

Fixed-term employee

A fixed-term employee works for a definite period agreed upon knowingly and voluntarily, subject to legal limitations.

If the employee performs work necessary or desirable to the employer’s business and the probationary requirements are not validly observed, the employee may argue regular employment.

XXXI. Regularization by Operation of Law

A probationary employee may become regular by operation of law if:

They are allowed to work beyond the probationary period;
No valid standards for regularization were communicated at hiring;
The employer uses probationary status to avoid regular employment;
The employee performs work necessary or desirable to the business and the arrangement violates labor law.

Once regular, the employee may only be dismissed for just or authorized cause and with due process.

XXXII. Management Prerogative Has Limits

Employers often invoke management prerogative. It is true that employers have the right to hire, assign, evaluate, discipline, and dismiss employees.

However, management prerogative must be exercised:

In good faith;
Without discrimination;
Without bad faith;
Without abuse of rights;
In accordance with law;
With due process;
Based on substantial evidence.

Management prerogative is not a license to dismiss a probationary employee arbitrarily.

XXXIII. Evidence Standard: Substantial Evidence

Labor cases are generally decided based on substantial evidence.

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

The employer does not need proof beyond reasonable doubt, but it must present more than bare allegations.

The employee should also present documents and sworn statements where available.

XXXIV. Common Mistakes Employees Should Avoid

A probationary employee should avoid the following mistakes:

Waiting too long to file;
Relying only on verbal claims;
Losing copies of messages and documents;
Signing a quitclaim without understanding it;
Posting defamatory statements online;
Threatening the employer;
Inflating monetary claims;
Missing conferences or deadlines;
Ignoring notices from the NLRC;
Failing to organize evidence.

Professional and factual presentation strengthens the case.

XXXV. Common Mistakes Employers Make

Employers often lose probationary dismissal cases because they:

Fail to issue written standards at hiring;
Use vague standards;
Fail to evaluate the employee properly;
Terminate verbally;
Give no written notice;
Dismiss shortly before regularization without documentation;
Use probationary status as a shield;
Force employees to resign;
Fail to keep records;
Apply standards inconsistently;
Retaliate against employees who complain.

XXXVI. Sample Evidence Checklist

Before filing, the employee should prepare:

Valid ID;
Employment contract;
Job offer;
Payslips;
Proof of salary;
Attendance records;
Termination notice, if any;
Messages showing dismissal;
Proof that no standards were given;
Evaluations, if any;
Proof of good performance;
Witness names and contact information;
Computation of claims;
SEnA documents, if any;
Quitclaim or final pay documents, if signed;
Certificate of employment, if available.

XXXVII. Suggested Structure of the Position Paper

A good position paper may follow this structure:

Parties Identify the employee and employer.
Facts Present a clear chronological story.
Issues Example: whether complainant was illegally dismissed.
Arguments Discuss lack of standards, lack of valid cause, lack of due process, forced resignation, or other issues.
Reliefs State the remedies sought.
Computation Attach a clear computation of claims.
Evidence Refer to annexes and explain what each document proves.
Prayer Ask for reinstatement, back wages, benefits, damages, attorney’s fees, and other proper reliefs.

XXXVIII. Frequently Asked Questions

Can a probationary employee be dismissed anytime?

No. A probationary employee may be dismissed only for a valid cause, including failure to meet reasonable standards made known at the time of hiring, and with proper procedure.

Does the employer need to wait six months before dismissing a probationary employee?

No. The employer may dismiss before six months if there is a valid reason and due process is observed.

What if there was no employment contract?

The absence of a written contract does not mean there is no employment relationship. Employment may be proven by payslips, ID, attendance records, work schedules, messages, payroll deposits, and witness testimony.

What if the employee signed a probationary contract?

A probationary contract is not automatically valid. The employer must still show that reasonable standards were made known at the time of hiring.

What if the employee failed the evaluation?

The employer must prove that the evaluation was based on known, reasonable standards and was conducted in good faith.

What if the employee was told verbally not to report anymore?

Verbal dismissal may still be dismissal. The employee should document the incident immediately and ask for a written explanation.

Can the employee file even after receiving final pay?

Yes, unless the employee validly waived claims through a lawful settlement or quitclaim. Even then, a quitclaim may be challenged if it was involuntary or unconscionable.

Can a probationary employee ask for reinstatement?

Yes, especially if the dismissal was illegal and the employee is deemed regular or entitled to continued employment.

Can the employer extend probation?

Generally, probation cannot exceed six months unless a valid exception applies. An extension used to avoid regularization may be invalid.

Is a lawyer required?

A lawyer is not strictly required at the initial stages, but legal assistance is helpful, especially in preparing a position paper, computing claims, evaluating settlement, and handling appeals.

XXXIX. Practical Example

Suppose Ana was hired as a probationary marketing assistant on January 1. Her contract merely stated that she would be on probation for six months. It did not contain performance standards. She received no written evaluation. On May 25, she was told by HR that she “did not pass” and should no longer report to work. No details were given.

Ana may argue that the dismissal was illegal because:

No standards for regularization were made known at hiring;
The reason for dismissal was vague;
There was no substantial evidence of poor performance;
There was no proper notice;
The employer acted arbitrarily.

If the labor tribunal agrees, Ana may be entitled to appropriate reliefs such as reinstatement, back wages, unpaid benefits, damages, or separation pay depending on the circumstances.

XL. Conclusion

A probationary employee in the Philippines has security of tenure. The employer may evaluate the employee, but it must do so based on reasonable standards communicated at the time of hiring. The employer cannot dismiss a probationary employee arbitrarily, secretly, verbally, discriminatorily, or in bad faith.

To file an illegal dismissal case, the employee should first gather evidence, prepare a clear timeline, file a Request for Assistance under SEnA, attend conferences, and if no settlement is reached, file a formal complaint before the NLRC. The employee should be ready to prove the fact of dismissal, while the employer bears the burden of proving that the dismissal was valid.

The strongest cases are usually those supported by documents: contracts, messages, payslips, notices, evaluations, and proof that the employer either failed to communicate standards or failed to apply them fairly.

For probationary employees, the central question is often simple:

Were the standards for regularization made known at the time of hiring, and was the dismissal based on a valid, proven, and fair ground?

If the answer is no, the employee may have a strong case for illegal dismissal.