A probationary employee may be legally dismissed even without a formal performance evaluation—but the absence of an evaluation can become a serious problem for the employer. Philippine law does not require every company to use a particular appraisal form. What it does require is proof that the employee was informed of reasonable standards for regularization and genuinely failed to meet them.

An employer cannot simply say, “You did not pass probation.” It must identify the standards, show when they were communicated, and present substantial evidence of the employee’s failure. The applicable procedure also depends on whether the dismissal was for poor performance, misconduct, redundancy, or another ground.

What Philippine law says about probationary employment

Under Article 296 of the Labor Code, a probationary employee may generally be terminated for either:

A just cause, such as serious misconduct or gross and habitual neglect;
An authorized cause, such as redundancy or retrenchment; or
Failure to qualify as a regular employee under reasonable standards made known at the time of engagement.

Probationary employees do not have less basic protection simply because they are not yet regular. They already enjoy security of tenure, although their continued employment may depend on satisfying valid regularization standards.

In Jaso v. Metrobank, the Supreme Court explained that the employer must prove that the employee was properly informed of the standards and failed to meet them. The employer’s evidence must reach the level of substantial evidence, meaning relevant evidence that a reasonable person could accept as sufficient to support the conclusion. (Supreme Court E-Library)

Is a formal written evaluation legally required?

There is no Labor Code provision requiring every employer to complete a particular evaluation form before terminating a probationary employee.

An evaluation may take several forms, including:

A written probationary appraisal;
Monthly performance reports;
Key performance indicator or KPI results;
Quality-control reports;
Attendance and productivity records;
Documented coaching sessions;
Supervisor observations supported by specific incidents;
Customer complaints;
Emails identifying errors or missed targets;
Written warnings and the employee’s responses.

The Supreme Court’s decisions focus on whether the employer established the applicable standards and the employee’s actual failure—not merely on whether a standard company form was completed.

In Enchanted Kingdom, Inc. v. Verzo, the employer relied on documented performance reports and specific work deficiencies. The Court accepted such evidence even though the dispute was not resolved solely by reference to one final appraisal form. (LawPhil)

The practical rule is therefore:

The absence of a formal evaluation form does not automatically make a dismissal illegal, but the employer must still have credible evidence showing how the employee was assessed and why the employee failed.

If there was no meaningful evaluation, no documented feedback, and no objective evidence of poor performance, the employer may have difficulty proving a lawful non-regularization.

The four questions that usually determine legality

A dismissal for failure to qualify will usually depend on four issues.

1. Was the employee validly placed on probation?

The employment contract should clearly state that the employee is probationary and specify the probationary period.

As a general rule, probationary employment cannot exceed six months unless:

The work is covered by a valid apprenticeship or learnership arrangement;
A longer period is permitted by the nature of the work under applicable law or jurisprudence; or
A legally recognized and genuinely voluntary extension was agreed upon to give the employee a further opportunity to qualify.

An employer ordinarily cannot keep someone “probationary” indefinitely through repeated contracts or a unilateral extension.

The Supreme Court has also clarified that the six-month period is generally computed from the employee’s starting date to the corresponding calendar date of the sixth month. (Supreme Court E-Library)

If the employee is allowed to continue working after the valid probationary period without a lawful termination, the employee generally becomes regular by operation of law.

2. Were reasonable standards communicated?

The employer must inform the employee what is required to become regular. Standards may include:

Minimum sales or production targets;
Accuracy or quality thresholds;
Attendance requirements;
Customer-service standards;
Completion of required training;
Competency in specific systems or procedures;
Leadership, judgment, initiative, or communication expectations for managerial work;
Compliance with safety, confidentiality, or regulatory procedures.

The safest practice is to include these standards in the contract, job offer, job description, KPI sheet, onboarding documents, or employee handbook acknowledged by the employee.

If no standards were made known, Book VI, Rule I, Section 6(d) of the Labor Code’s implementing rules provides that the employee is deemed regular from the time of engagement. The employer ordinarily cannot later invent standards and use them to justify non-regularization. (Supreme Court E-Library)

However, the Supreme Court does not always apply the “at the time of engagement” requirement with extreme literalness. In appropriate cases, standards may be communicated during the early part of probation, provided the employee receives reasonable notice, enough time to understand them, and a fair opportunity to comply.

In Reyes v. Samsung Electronic Philippines Corporation, the Court recognized that some standards may also be apparent from clearly defined duties, particularly in managerial or highly discretionary positions where judgment, initiative, and leadership are integral to the job. (Supreme Court E-Library)

There are also limited exceptions for basic or self-descriptive jobs. A cook, driver, messenger, household worker, or similar employee may be expected to understand basic duties inherent in the position. Still, an employer should not rely on this exception for special targets, unusual procedures, or company-specific expectations that were never explained.

3. Did the employee actually fail the standards?

The employer must prove more than general dissatisfaction. Statements such as these are usually too vague by themselves:

“Not a good fit”;
“Did not meet expectations”;
“Management lost confidence”;
“Poor attitude”;
“Performance was unsatisfactory.”

The employer should connect the stated reason to specific standards and supporting evidence.

For example:

Weak justification	Stronger supporting evidence
“Low productivity”	Weekly output records compared with the communicated minimum target
“Frequent errors”	Quality reports identifying dates, transactions, and error rates
“Poor attendance”	Time records, attendance policy, and documented unauthorized absences
“Bad customer service”	Verified complaints, call reviews, coaching records, and service standards
“Weak leadership”	Documented missed deliverables, team-management incidents, and previously explained managerial criteria

The employer carries the burden of proving that the dismissal was valid. A bare termination letter repeating “failed probation” is not automatically substantial evidence.

4. Did the employer act honestly and follow its own rules?

Even when management has discretion to assess a probationary employee, that discretion is not unlimited. The assessment must be:

Made in good faith;
Based on actual job-related standards;
Supported by evidence;
Consistent with the employment contract and company policy;
Free from discrimination, retaliation, or bad faith.

This becomes especially important when the company’s own documents promise a formal evaluation.

In C.P. Reyes Hospital v. Barbosa, the employer’s contract used a specific numerical evaluation system. The employee obtained passing scores, yet the employer relied on other reasons and evaluations prepared after the termination. The Supreme Court found the dismissal factually baseless and treated the later evaluations as an apparent afterthought. (Supreme Court E-Library)

An employer that voluntarily adopts a scoring system, evaluation schedule, or approval procedure should follow it. Skipping the promised process may show that the stated reason was not the real basis for dismissal.

Different grounds require different procedures

Not every termination of a probationary employee is a simple “failure to qualify” case.

Employer’s stated ground	Basic legal requirements
Failure to meet regularization standards	Communicated reasonable standards, substantial evidence of failure, good-faith assessment, and written notice
Just cause under Article 297	Valid just cause, first notice specifying the charge, opportunity to explain or be heard, and second notice communicating the decision
Authorized cause under Articles 298 or 299	Genuine statutory ground, written notice to the employee and DOLE generally at least 30 days before effectivity, and separation pay when required
Expiration of a valid fixed-term arrangement	Genuine fixed term freely agreed upon, not designed to defeat security of tenure

Failure to qualify

When the dismissal is genuinely based on failure to meet regularization standards, the employer generally does not need to use the full two-notice disciplinary procedure.

The employer must nevertheless give the employee a written notice of termination within a reasonable time in relation to the effective date. The notice should identify the failure to meet the applicable standards rather than merely state that management decided not to regularize the employee. (Supreme Court E-Library)

Just cause or misconduct

The situation changes when the real accusation is misconduct.

Examples include:

Dishonesty;
Insubordination;
Serious misconduct;
Falsification;
Theft;
Willful breach of trust;
Gross and habitual neglect;
Repeated unauthorized absences treated as a disciplinary offense.

For a just-cause dismissal, the employer must generally observe the two-notice rule:

A first written notice describes the charge and gives the employee a reasonable opportunity to explain.
The employer considers the explanation and may conduct a conference when necessary.
A second written notice states the decision and the grounds for dismissal.

The employer cannot avoid this process by relabeling alleged misconduct as “poor performance.” In C.P. Reyes Hospital v. Barbosa, the Supreme Court emphasized the distinction between dismissal for failure to qualify and dismissal for a just cause. (Supreme Court E-Library)

When dismissal without an evaluation is likely questionable

The dismissal may be vulnerable to an illegal-dismissal claim when:

The contract did not identify any regularization standards;
The employee never received a job description, KPI sheet, handbook, or performance criteria;
The employer cannot produce contemporaneous performance records;
The employee received no feedback until the day of termination;
The company promised an evaluation but never conducted one;
The employee passed the company’s stated scoring requirement;
Management used new criteria that were introduced only after the dismissal;
The supposed evaluation was prepared or backdated after termination;
The stated reason is vague, subjective, or unrelated to the job;
Other employees with the same results were regularized without a legitimate explanation;
The employee was dismissed after reporting harassment, wage violations, safety concerns, or unlawful conduct;
The employee continued working after the probationary period had expired;
The termination was communicated only verbally and no written notice followed.

No single factor automatically decides the case. Labor tribunals examine the entire record, including the contract, company policies, communications, witness accounts, and the timing of the employer’s documents.

When dismissal may still be valid without a final appraisal form

A dismissal may still be lawful when:

The standards were clearly explained at hiring or early in probation;
The employee acknowledged the standards;
Supervisors regularly monitored performance;
Reports show repeated failure to meet objective targets;
The employee received coaching or feedback;
The evidence was created during employment rather than after termination;
The employer consistently applied the same standards to comparable employees;
The dismissal occurred within the probationary period;
The employee received a written termination notice;
The reason was genuinely failure to qualify rather than disguised discipline.

An employer does not necessarily have to wait until the final day of probation. If the employee’s failure is already established, termination may occur before the six-month period expires.

Probation is a trial period, not a guaranteed six-month term of employment.

What to do after being terminated without an evaluation

1. Obtain the exact stated reason

Read the termination letter carefully.

Determine whether the company claims:

Failure to meet performance standards;
Attendance problems;
Misconduct;
Redundancy;
Business closure;
End of contract; or
Another reason.

The label matters because different grounds require different evidence and procedures.

If the dismissal was verbal, send a calm written message confirming what was said. For example, state the date, the person who communicated the decision, the given reason, and the effective date. This creates a contemporaneous record.

2. Calculate the probationary period

Record:

Hiring date;
Actual first day of work;
Contractual probation end date;
Date the termination was communicated;
Effective date of termination;
Whether work continued after the expected probation end date.

Do not assume the date printed in an internal HR form is necessarily controlling if it differs from the actual employment documents and start date.

3. Identify every standard communicated to you

Collect any document describing what you had to achieve:

Employment contract;
Job offer;
Job description;
KPI or scorecard;
Training materials;
Employee handbook;
Probationary guidelines;
Emails or chat messages;
Coaching notes;
Performance-improvement plan;
Evaluation schedule.

Note when each standard was first communicated. A standard introduced near the end of probation may be questionable if the employee had no reasonable chance to satisfy it.

4. Check whether the employer followed its own policy

Look for provisions stating:

Who conducts the evaluation;
When evaluations must occur;
What passing score is required;
Whether the employee signs the appraisal;
Whether coaching or a performance plan must come first;
Who approves regularization or termination;
Whether an appeal or review procedure exists.

Failure to follow internal policy does not always make a dismissal illegal by itself. It can, however, seriously weaken the employer’s claim that its assessment was genuine and fair.

5. Request relevant records in writing

A focused written request may ask for:

The performance standards used;
Copies of completed evaluations;
KPI results;
Attendance records;
Coaching or disciplinary records;
The specific incidents supporting termination;
The company policy on probationary assessment;
Final-pay computation and certificate of employment.

Keep the request factual. Avoid deleting messages, altering files, secretly accessing restricted systems, or taking confidential customer or company data that you were not authorized to retain.

6. Preserve your evidence

Useful evidence often includes:

Document or record	Why it matters
Contract and job offer	Shows employment status, probation period, and agreed standards
Job description and KPIs	Identifies the criteria for regularization
Emails and work chats	Shows instructions, feedback, praise, targets, and timing
Performance reports	Establishes actual results
Payslips and payroll records	Helps prove employment dates and monetary claims
Time and attendance records	Confirms or disputes attendance allegations
Notices and written explanations	Shows whether disciplinary due process was followed
Termination letter	Identifies the employer’s official reason
Certificates, awards, or client feedback	May contradict claims of poor performance
Witness affidavits	Supports facts personally observed by coworkers or supervisors
Personal timeline	Helps organize dates, meetings, incidents, and documents

Prepare a chronological summary while events are still fresh. Include dates, names, exact statements, and the location or platform where each communication occurred.

7. File a Request for Assistance under SEnA

The Single Entry Approach, or SEnA, is the Department of Labor and Employment’s mandatory conciliation process under Republic Act No. 10396 of 2013 and current DOLE implementing rules.

A Request for Assistance may be filed through the DOLE Assistance Request Management System or at an appropriate Single Entry Assistance Desk. The process generally provides up to 30 calendar days for conciliation-mediation. (arms.dole.gov.ph)

Possible settlement issues include:

Reinstatement;
Separation pay in lieu of reinstatement;
Backwages;
Unpaid salary;
Pro-rated 13th-month pay;
Unused leave benefits when convertible under policy;
Final pay and certificate of employment;
Correction of employment records.

A settlement should clearly state the amounts, payment dates, tax treatment, release terms, and consequences of nonpayment.

8. File an illegal-dismissal complaint with the NLRC if unresolved

Labor Arbiters of the National Labor Relations Commission have original and exclusive jurisdiction over termination disputes.

After mandatory conciliation and the Labor Arbiter’s conferences, the parties may be directed to submit verified position papers with supporting documents and affidavits. Under the 2025 NLRC Rules of Procedure, position papers are generally due within 10 calendar days from the termination of the mandatory conference unless the rules or tribunal provide otherwise.

The rules direct the Labor Arbiter to decide the case within 30 calendar days after submission for decision. This is not the total expected duration from initial filing because service, conciliation, conferences, evidence submission, and possible appeals occur separately.

An appeal from a Labor Arbiter’s decision generally must be perfected within 10 calendar days from receipt.

Current forms are available through the NLRC downloadable forms page.

Important filing deadlines

An illegal-dismissal action generally prescribes in four years from the date of dismissal.

Claims for unpaid wages and other monetary benefits generally prescribe in three years from the time the claim accrued.

Filing a Request for Assistance under SEnA may interrupt or suspend the running of the applicable prescriptive period under current rules. Still, delaying makes evidence harder to obtain, memories less reliable, and witnesses more difficult to locate. (National Labor Relations Commission)

What remedies may be awarded for illegal dismissal?

When a probationary employee is illegally dismissed, the usual statutory remedies may include:

Reinstatement without loss of seniority rights;
Full backwages, including regular allowances and benefits;
Separation pay in lieu of reinstatement when reinstatement is no longer feasible;
Unpaid salaries and statutory benefits;
Damages when bad faith, oppression, or another legal basis is proven;
Attorney’s fees when the legal requirements are met;
Legal interest on monetary awards as directed in the final judgment.

In C.P. Reyes Hospital v. Barbosa, the Supreme Court clarified that an illegally dismissed probationary employee is not limited to salary for the remaining portion of the probationary period. Backwages may continue until actual reinstatement or, when reinstatement is no longer viable, until the finality of the decision awarding separation pay.

A probationary employee who was validly dismissed merely for failure to qualify is not automatically entitled to separation pay. Separation pay may still be due if it is required by the contract, collective bargaining agreement, company policy, established practice, or an applicable authorized-cause provision.

Common real-life scenarios

The employee was dismissed on the fifth month with no prior feedback

The timing alone does not make the dismissal illegal. The employer may terminate before six months.

However, the employer must still show the standards, the employee’s failure, and the evidence supporting its assessment. The complete absence of feedback or records can make that burden difficult to satisfy.

The employee never signed a KPI sheet

Lack of a signature is important but not always decisive. The employer may prove communication through orientation records, emails, meetings, training materials, or testimony.

The key question is whether the employee actually received understandable standards with enough time to meet them.

The employee passed the numerical evaluation

If the contract or policy states that a particular score qualifies the employee for regularization, the employer cannot ordinarily disregard a passing result and use unrelated criteria that were never disclosed.

The employer must explain any other applicable standard and show that it formed part of the original agreement or was inherent in the position.

HR prepared an evaluation after termination

A document created after dismissal is not automatically inadmissible, but its timing affects credibility.

A post-termination evaluation that is unsupported by earlier records may appear to be an afterthought, especially when it contradicts contemporaneous reports or passing scores.

The employer cited absences as “poor performance”

The tribunal will examine the real nature of the accusation.

If the employer is disciplining the employee for unauthorized absences, dishonesty about attendance, or willful violation of policy, the just-cause notice-and-hearing procedure may apply. Calling the offense “failure to qualify” does not erase due-process requirements.

The employee was told not to report for work but received no letter

A verbal dismissal may still constitute an actual termination, but it creates disputes about the date and reason.

Written notice is required for termination based on failure to meet probationary standards. The employee should preserve messages, access deactivation notices, scheduling changes, payroll records, and written confirmation of the conversation.

The company says the employee lacked “culture fit”

Culture fit is not a free-standing legal ground for dismissal.

The employer should connect the concern to legitimate, job-related standards such as teamwork, professionalism, communication, leadership, or compliance. Those standards must have been reasonably communicated or clearly inherent in the position, and the assessment must be supported by good-faith evidence.

Frequently Asked Questions

Can a probationary employee be terminated before six months?

Yes. Six months is generally the maximum probationary period, not a guaranteed term. An employer may terminate earlier for a valid cause or a proven failure to meet communicated standards.

Does the employer have to wait for a final evaluation?

Not necessarily. If performance is monitored throughout probation and substantial evidence already shows failure to qualify, the employer may act before a final appraisal date. It must still comply with the contract, company policy, and written-notice requirement.

Is verbal notice of non-regularization enough?

Generally, no. Termination for failure to meet probationary standards should be communicated through written notice within a reasonable time in relation to its effective date. Verbal notice also leaves the employer with a serious evidentiary problem.

Am I automatically regular if no standards were explained?

As a general rule, a probationary employee who was not informed of reasonable regularization standards is deemed regular from engagement. Limited exceptions apply to basic duties that are self-evident or clearly inherent in the position.

Can the employer rely only on a supervisor’s opinion?

A supervisor’s testimony may be evidence, but unsupported conclusions are weak. Specific incidents, dates, reports, targets, and contemporaneous records make the assessment more credible.

Must I receive warnings before non-regularization?

The Labor Code does not universally require a set number of warnings for failure to qualify. Warnings or coaching may nevertheless be required by the contract or company policy and can help establish that the assessment was fair.

For misconduct or another just cause, the employer must follow the applicable notice-and-opportunity-to-be-heard procedure.

What happens if the evaluation was scheduled after the probation period?

If the employee continued working beyond the valid probationary period without lawful termination, regular status may already have attached. An employer generally cannot avoid regularization by conducting a late evaluation after the period expired.

Can I file a complaint even if I signed a quitclaim?

Yes, depending on the circumstances. Quitclaims are closely examined. A release may be invalid if it was involuntary, obtained through fraud or pressure, or supported by an unconscionably low amount. A fair, voluntary, and fully understood settlement is more likely to be enforced.

Can a foreign employee file an illegal-dismissal case in the Philippines?

A foreign employee working under an employment relationship governed by Philippine labor law may generally invoke Labor Code protections and use the SEnA and NLRC processes. Relevant records may include the employment contract, passport, Alien Certificate of Registration, work authorization, payroll documents, and evidence showing where and for whom the work was performed.

Do I need a lawyer to file at DOLE or the NLRC?

Representation is not always mandatory, particularly during SEnA. However, an NLRC case becomes evidence-intensive because the parties submit verified position papers, affidavits, and legal arguments. Missing a ground, document, or filing deadline can materially affect the result.

How long do I have to file?

Illegal-dismissal claims generally have a four-year prescriptive period. Monetary claims such as unpaid wages generally have a three-year period. Filing promptly is safer because employment records can disappear and witnesses may become unavailable.

Key Takeaways

A missing formal evaluation does not automatically make a probationary employee’s dismissal illegal.
The employer must prove that reasonable regularization standards were communicated and that the employee actually failed them.
If no standards were made known, the employee may be deemed regular from the beginning.
An employer that promised a specific evaluation or passing score should follow its own rules.
Vague statements such as “not a good fit” are not enough without job-related standards and substantial evidence.
Failure to qualify generally requires written notice, while dismissal for misconduct requires the just-cause notice-and-hearing procedure.
Evaluations created only after termination may be treated as unreliable afterthoughts.
An illegally dismissed probationary employee may recover reinstatement, full backwages, or separation pay when reinstatement is no longer feasible.
A SEnA Request for Assistance is normally the first formal step, followed by an NLRC complaint if conciliation does not resolve the dispute.