Probationary Employee Notice Period in the Philippines: 30-Day Rule, Damages, and Defenses

Philippine labor law in plain English. This is general information, not legal advice.

Quick takeaways

Probationary status normally lasts up to 6 months from day one (with limited sector-specific exceptions, e.g., private school teachers).
A probationary employee can be validly terminated only for:
1. a just cause (serious misconduct, etc.), or
2. failure to meet reasonable standards that were clearly communicated at hiring.
The famous “30-day rule” means two different things:
- Employer side (authorized causes): For redundancy, retrenchment, closure, or disease, the employer must give 30 days’ written notice to both the employee and DOLE before effectivity.
- Employee side (resignation without cause): Any employee, including probationary, must give the employer at least 30 days’ written notice; skipping it can lead to liability for damages.
No 30-day notice is required when:
- The employer terminates a probationary employee for just cause or failure to meet standards (but due process notices still apply).
- The employee resigns with just cause (immediate effect allowed).
Due process matters. Even if the termination ground is valid, procedural lapses (e.g., missing notices) typically result in nominal damages (often ₱30k for just-cause cases; often ₱50k for authorized-cause cases).
Separation pay: Due only for authorized causes (e.g., redundancy). Not due for just cause or failure to meet standards (unless equity or special rules apply).

1) What “probationary employment” really means

Duration. As a default, probation lasts up to six (6) months from the start of work. Sector-specific rules can lawfully set a longer period (notably in private education, where probation is commonly longer under education regulations). If the probationary period lapses and the employee continues working, the employee generally becomes regular by operation of law.

Standards must be known at hiring. To end probation because the employee “failed to qualify,” the employer must have reasonable, job-related standards that were made known at the time of engagement. If the standards were not communicated, or are unreasonably vague, the employee is treated as regular; a “failure to qualify” termination will be illegal.

Security of tenure still applies. Probationary employees cannot be dismissed at will. The employer bears the burden of proving valid grounds and procedural compliance.

2) The “30-Day Rule,” unpacked

A) Employer-initiated termination

i) Authorized causes (redundancy, retrenchment to prevent losses, closure, installation of labor-saving devices, or disease with a public health certification):

Mandatory 30-day written notice to both the employee and DOLE before the effective date.
Separation pay is due, with statutory minimums that depend on the ground (e.g., at least 1 month pay or 1 month per year for redundancy/LSD; at least 1 month pay or ½ month per year for retrenchment/closure/disease—whichever is higher; fractions of 6 months count as a year). Effect on probationary employees: even with short tenure, the “at least one month pay” minimum typically applies for these authorized causes.

Pay in lieu vs. DOLE notice. Employers sometimes offer pay in lieu of serving out the notice period to accelerate effectivity. While parties can agree on earlier release and pay the employee accordingly, the law still requires service of the 30-day DOLE notice. Failure to observe the statutory notice is a procedural defect that usually leads to nominal damages, even if the authorized cause is proven.

ii) Just causes (serious misconduct, willful disobedience, gross and habitual neglect, fraud, etc.) and iii) Failure to meet standards (probation-specific):

No 30-day notice requirement.
But the employer must observe procedural due process (see next section).
No separation pay is legally required (courts may award financial assistance in rare equity situations).

B) Employee-initiated termination (resignation)

Without just cause: The Labor Code requires at least 30 days’ written notice to the employer to allow proper turnover. This applies to probationary employees too.
- If the employee leaves immediately without just cause or without the employer’s consent, the employee may be liable for damages (the employer must prove actual loss).
- Employers may waive the notice or allow a shorter period; they may also accept immediate effectivity.
With just cause (e.g., serious insult by the employer or representative, inhuman and unbearable treatment, commission of a crime against the employee, or analogous causes): Immediate resignation is allowed; no 30-day notice needed.

3) Procedural due process (the “notice-and-hearing” piece)

Even when the ground is valid, the employer must comply with statutory due process:

For just causes:
1. First notice (notice to explain) stating the specific charges and evidence;
2. Opportunity to be heard (written explanation and/or conference);
3. Second notice (decision) stating the reasons for termination.
For probationary “failure to meet standards”: Courts expect substantial compliance with similar due process: tell the employee which standard(s) were not met, give a chance to respond, and issue a reasoned decision. Regular performance evaluations, counseling memos, and documentation are key.
For authorized causes: Due process is the statutory 30-day written notice to the employee and to DOLE before effectivity; no “two-notice” sequence is required, but supporting business documents (e.g., redundancy study, financials for retrenchment, health certification for disease) are.

Procedural missteps usually do not invalidate a substantively valid dismissal, but they expose the employer to nominal damages (often ₱30,000 for just-cause due-process lapses; often ₱50,000 for authorized-cause notice defects). Repeated or egregious bad faith can open the door to moral and exemplary damages and attorney’s fees.

4) Damages, backwages, separation pay: who gets what?

Illegal dismissal (e.g., standards not communicated; no valid cause; sham redundancy; or probation extended beyond lawful limits and then terminated):
- Reinstatement (often as regular) or separation pay in lieu (if reinstatement is no longer feasible), plus
- Full backwages and benefits from the time pay was withheld up to actual reinstatement or finality of judgment, plus
- Damages (moral/exemplary) and attorney’s fees if bad faith is proven.
Valid dismissal but with procedural defect (e.g., missed notices):
- Nominal damages (amount depends on the type of cause, see above). No backwages or reinstatement since the ground is valid.
Authorized-cause terminations (valid):
- Separation pay as required by law (see §2A), even for probationary employees.
Resignation without the 30-day notice (and without just cause):
- The employee may be liable for damages if the employer proves actual loss proximately caused by the abrupt resignation (e.g., penalties from a client, measurable project delays). Contractual liquidated damages that are fair and reasonable may be enforced; unconscionable penalties can be struck down.
Final pay and clearance: As a matter of DOLE policy, final pay (e.g., last salary, earned but unused convertible leave, 13th-month proportion) is generally released within 30 days from separation, absent justifiable delays; Certificate of Employment must be issued upon request within a short period. Company property and clearance processes can be required, but they cannot be used to illegally withhold wages.

5) Typical employer defenses (probationary terminations)

Standards were reasonable and disclosed at hiring (offer letter/probation agreement/handbook signed; job description attached).
Documentation of performance: KPIs, evaluation forms, memos, coaching records showing failure to meet standards.
Procedural due process complied with:
- For “failure to qualify”: written notice specifying unmet standards, employee’s written explanation or meeting minutes, and a reasoned decision letter.
- For authorized cause: 30-day notice to employee and DOLE plus supporting studies/certifications.
Timing within probation: dismissal occurs before the probationary period lapses (or within a valid sector-specific period).
Good faith actions: offers of retraining, reassignment attempts, or extended evaluation (when lawful) to show absence of malice.

6) Typical employee defenses (against employer claims)

Standards not made known at hiring (no proof of disclosure)—therefore employee is regular; dismissal is illegal.
Probation exceeded (employee kept working past 6 months where no valid exception applies)—employee became regular; “failure to qualify” no longer applies.
Standards unreasonable or moving targets (non-job-related, inconsistent, or imposed mid-stream without proper notice).
Procedural due process violations (no meaningful notice/opportunity to explain; vague or conclusory decision letters).
Authorized cause is a pretext (e.g., “redundancy” with no study; replacement hired immediately for the same role).
Constructive dismissal (conditions made unbearable to force resignation).
Resignation with just cause (when employer sues for damages over short notice).

7) Practical timelines and checklists

A) Terminating a probationary employee for failure to meet standards

Before hiring: Put specific standards in the offer/probation agreement and job description; have the employee acknowledge them.
During probation: Conduct scheduled evaluations; keep written feedback.
If failing: Issue a notice to explain identifying specific unmet standards and attach records. Provide time to respond and, if needed, a conference.
Decision letter: State the facts, standards, and reasons. No 30-day wait required; pay all earned wages and release final pay/COE per policy.

B) Redundancy/retrenchment/closure/disease (authorized causes)

Prepare business justification (redundancy study, financials, or health certification).
Serve 30-day written notices to employee and DOLE.
Compute and pay separation pay and accrued benefits.
Execute a clear turnover plan during the 30-day period.

C) Employee resignation (probationary)

Without just cause: Give 30-day written notice; cooperate on turnover.
With just cause: State the ground(s) and effectivity is immediate.
Request COE; clear accountabilities; expect final pay within the usual 30 days from separation (absent valid reasons for delay).

8) Frequently asked scenarios

“Can we extend the 6-month probation?” Generally no, unless a valid legal or sector-specific rule allows it (e.g., private school settings). Some limited extensions tied to employee-caused delays (e.g., long absences) appear in case law, but these are fact-sensitive—get advice before relying on them.
“We forgot to disclose standards at hiring. Can we disclose them mid-probation?” You can clarify and document expectations, but if the employee was not told at engagement, you risk regularization and a higher bar for termination.
“We gave the 30-day notice to the employee but not to DOLE.” The substantive ground may still stand, but expect nominal damages for the procedural lapse.
“Employee quit immediately and won’t turn over.” If there is no just cause and no employer waiver, you may claim damages—but you must prove actual loss. Often, a practical solution is a mutual release with a negotiated notice period or handover.

9) Document essentials (what good paperwork looks like)

Probationary agreement/offer letter: role, probation length, specific standards/KPIs, evaluation schedule, and acknowledgment that standards were discussed.
Performance records: coaching notes, KPI dashboards, evaluation forms with employee countersignature or documented receipt.
Notices:
- To explain (facts, standards breached, evidence, reasonable reply period).
- Decision (findings, reasons, effectivity, pay/clearance details).
- Authorized causes: 30-day employee notice + 30-day DOLE notice with attachments.
Resignation letters: employee-signed, with intended effectivity; note acceptance/waiver of the 30 days if applicable.
Pay computations: final wages, 13th-month pro-rata, convertible leave, separation pay (if authorized cause), tax treatment.

10) Strategy tips

For employers

Front-load clarity: disclose standards in writing at hiring.
Treat “failure to qualify” like a performance-based just cause in terms of due process.
If it’s truly business-driven (redundancy/retrenchment), use the authorized-cause track and serve the 30-day DOLE and employee notices.
Avoid last-day surprises; calendar probation end dates.

For employees

At hiring, ask for written standards and evaluation cadence.
Keep copies of all communications and evaluations.
If facing termination, request specifics and due process.
If you cannot render 30 days’ notice, explain just cause (if any) or negotiate a waiver; offer a concrete turnover plan.

Final word

The 30-day rule around probationary employment is often misunderstood because it refers to two separate contexts: employer authorized-cause terminations (30-day notice to employee and DOLE) and employee resignations (30-day notice to employer). For performance-based probationary terminations, the key is due process, not a waiting period. Get the paperwork and timing right, and most disputes become manageable.

If you want, I can turn this into a one-page checklist or draft sample notices you can adapt.