Probationary Employee Rights Under Philippine Labor Law

(Philippine context • practitioner-oriented guide)

This article distills the settled rules from the Labor Code (as renumbered), major statutes, and leading Supreme Court doctrines. It’s general information—not legal advice.

1) What “probationary” means

Probationary employment is a lawful trial period to test fitness for regular employment.
Default maximum length: 6 months from the date the employee actually starts working, unless a lawful, sector-specific rule or a valid training/apprenticeship/academic scheme provides a different maximum.
Status: Probationary employees already enjoy security of tenure—they can only be terminated for just causes, authorized causes, or failure to meet written, reasonable standards communicated at the time of engagement.

When can the maximum exceed six months?

Private school/academic faculty: education regulations and jurisprudence allow a longer probationary period (often up to three years) tied to semesters/academic years.
Apprentices/learners: governed by specific TESDA/DOLE rules and approved agreements (with their own maximum periods).
Where the nature of the work genuinely requires a longer trial and this is lawfully set out and agreed up front (rare outside special sectors).

Practice tip (employers): If you need longer than six months, rely on a clear legal basis (e.g., sectoral regulation) and put it in the job offer/contract with the standards annexed.

2) Core rights of probationary employees (day one)

Probationary employees are entitled to all statutory minimum standards, including:

Minimum wage and non-diminution of pay protections
Overtime pay, night shift differential, rest days, holiday pay (subject to the usual rules)
13th month pay (pro-rated)
Service charges sharing (if applicable)
SSS, PhilHealth, and Pag-IBIG coverage from day one (with proper remittances)
OSH Law protections (R.A. 11058), safe workplace, and personal protective equipment as required
Freedom to self-organize and join a union (subject to bargaining unit rules)
Freedom from discrimination and harassment, including under the Anti-Age Discrimination Law (R.A. 10911), Safe Spaces Act (R.A. 11313), and Anti-Sexual Harassment Act (R.A. 7877)
Maternity leave (R.A. 11210) and paternity leave—eligibility depends on statutory conditions, not on being “regular.”
Solo Parent Leave and other special leaves, when statutory eligibility criteria (e.g., service requirements) are met.

3) Employer’s obligations that make—or break—probation

To lawfully keep a worker on probation and end it if needed, an employer must:

Communicate the reasonable standards for regularization at the time of hiring (ideally attached to the offer/contract).
Ensure the standards are related to the job, measurable, and not arbitrary.
Evaluate the employee against those standards during the period and document coaching and feedback.
If terminating for failure to meet standards, serve written notice stating the specific failures on or before the last day of probation.
If terminating for just cause, follow twin-notice and hearing due process.
If terminating for an authorized cause (redundancy, retrenchment, closure, disease), give 30-day prior written notice to the employee and DOLE and pay statutory separation pay.

Key doctrine: If the employer fails to communicate standards at hiring, the employee is deemed regular from day one (and can then only be dismissed for just/authorized causes with full due process).

4) The three lawful grounds to end probation

A. Just causes (serious misconduct, willful disobedience, gross & habitual neglect, fraud/breach of trust, crimes against employer, analogous causes)

Procedure:
- 1st notice (charge and detailed facts), reasonable time to answer, hearing/clarificatory opportunity.
- 2nd notice (decision with factual and legal basis).
Separation pay: Not required for just cause (unless provided by CBA/company policy).

B. Authorized causes (redundancy, retrenchment, closure/cessation not due to serious losses, disease not curable within six months)

Procedure: 30-day prior notice to employee and DOLE; pay separation pay at statutory rates (varies by cause).
Performance is irrelevant—these are business/health grounds.

C. Failure to meet probationary standards

Prerequisites:
- Standards were reasonable, job-related, and clearly made known at hiring; and
- There is good-faith evaluation documented by the employer.
Procedure: At minimum, written notice to the employee within the probationary period specifying which standards were not met. (Best practice: give the employee a chance to comment.)

5) Conversion to regular employment

A probationary employee becomes regular when any of the following occurs:

They meet the communicated standards within the probationary period.
They are allowed to work beyond the maximum probationary period (e.g., beyond six months in ordinary cases) without a valid extension.
The employer failed to communicate standards at hiring.
The work performed is usually necessary or desirable to the employer’s business and the conditions above are met.

Counting the period: In ordinary cases, count up to 180 calendar days from start of actual work. Avoid “floating” extensions unless legally grounded and mutually agreed in advance.

6) What happens at the end of probation?

If regularized: Issue a regularization notice, update the payroll/benefits classification, and keep evaluation records.
If not regularized for standards: Serve timely written notice identifying unmet standards. Final pay must include pro-rated 13th month, unused leaves convertible to cash (if company policy), and other accrued benefits, plus release of COE upon request.
If the employee keeps working past the last day without action, they are regular by operation of law.

7) Due process details (what “fair” looks like)

For just causes: “Twin-notice and hearing” is mandatory. Evidence can include attendance logs, customer complaints, system trails, and signed policy acknowledgments.
For standards-based non-regularization: While not the full twin-notice model, the employer should—within the period—give written, specific reasons linked to the published standards and, ideally, a chance to comment.
Burden of proof: In illegal dismissal cases, the employer bears the burden to prove lawful cause and compliance with procedure.

8) Pay & benefits during probation (quick guide)

Wages: At least the prevailing minimum for the region/industry; otherwise as agreed (no unlawful deductions).
13th month: Pro-rated based on basic salary actually earned within the calendar year.
Service Incentive Leave (SIL): 5 days after a year of service; most probationary employees won’t qualify yet, but company-granted leaves may apply.
Holidays/OT/rest day: Governed by general rules (probationary status doesn’t remove entitlement).
Government contributions: Employer must register and remit SSS/PhilHealth/Pag-IBIG from day one.
Final pay: Must be released within a reasonable period; best practice aligns with DOLE advisories (e.g., 30 days from separation, unless faster by policy).

9) Special sectors & atypical arrangements

Education sector (private schools/HEIs): Probation typically tracks academic years/semesters up to an allowed maximum (commonly three years) under education regulations; meeting rank/credential requirements affects regularization.
Apprentices/learners/trainees: Must have DOLE/TESDA-compliant agreements with wage and hour rules distinct from regular hires; using “trainee” labels to evade probation rules is unlawful.
Project/seasonal/fixed-term: If genuinely project-based or seasonal, probation rules interact with project completion/seasonality; repeated fixed-term renewals to avoid regularization may be struck down.

10) Common illegal practices (and how they’re fixed)

No written standards at hiring, then “failed probation” at month six → employee is regular from day one; dismissal is illegal.
Moving the goalposts (changing KPIs mid-period without notice) → invalid; use the standards disclosed at hiring or properly amend with consent and time to comply.
Silence at day 180, but the employee keeps working → employee automatically regular.
Calling it “casual/trainee” but assigning core work without lawful trainee program → deemed regular/probationary depending on facts.
Ending probation for union activity/pregnancy/age → unlawful discrimination; void dismissal.
No due process for a just-cause dismissal (e.g., theft) → even if the act happened, procedural defects can lead to damages and sometimes reinstatement/backwages.

11) Remedies if a probationary employee is illegally dismissed

Reinstatement without loss of seniority rights or separation pay in lieu (if reinstatement is no longer feasible).
Full backwages from dismissal until reinstatement (or finality of judgment if separation pay is awarded instead).
Possible moral/exemplary damages and attorney’s fees when bad faith or oppressive conduct is proven.

12) Practical playbooks

For employees

Keep your job offer, contract, and standards/KPIs; ask HR in writing if not provided.
Acknowledge receipt of policies but note objections to unclear, new, or retroactive KPIs.
Keep a log of coaching, outputs, and feedback; save performance dashboards.
If served a notice, reply factually, attach evidence, and ask for a meeting.
Upon exit, request your Certificate of Employment (COE) and final pay breakdown.

For employers/HR

Attach a Standards Annex to the offer letter.
Onboard with signed policy receipts; give mid-probation reviews (e.g., day 60/120 check-ins).
If performance is lacking, issue coaching memos and Performance Improvement Plans with dates and metrics.
If ending probation for standards, notify in writing before the last day, citing the unmet items.
Keep clean paper trails—they win or lose cases.

13) Quick FAQs

Q: Can we end probation “without cause” on day 179? A: Not lawfully. You must show just cause or failure to meet pre-communicated standards (or an authorized cause with 30-day notice and separation pay).

Q: Can we extend probation by another month to observe more? A: No, unless a lawful basis exists (sector rule/training scheme) and it was agreed at hiring. Otherwise, the employee becomes regular if allowed to work past the cap.

Q: Does maternity/paternity leave affect the count? A: Authorized leaves and work suspensions don’t “punish” the worker; handle fairly. If the nature of work justifies, you may adjust evaluation timing—but be careful not to circumvent the cap unlawfully.

Q: Are probationary employees part of the bargaining unit? A: They can be, subject to the union’s scope/CBA terms. Being probationary doesn’t bar union membership.

14) One-page compliance checklist (ordinary, non-sectoral)

Probationary maximum: ≤ 6 months from start of work
Standards (job-related, measurable) attached to offer/contract
Employee acknowledges receipt of standards and policies
Mid-probation review(s) documented
If ending for standards: written notice served on/before last day, specific to unmet items
If just cause: twin-notice & hearing completed
If authorized cause: 30-day DOLE + employee notice and separation pay computed
Final pay (with pro-rated 13th month) processed; COE ready on request
SSS/PhilHealth/Pag-IBIG remittances current; payroll records complete

Final note

The probationary regime is simple in principle (six months; standards disclosed at hiring) but unforgiving in paperwork. Employers win by clarity and documentation; employees win by asking for the standards in writing and keeping records. Sectoral rules (education, apprenticeships) can lawfully vary the default—check those early.