Probationary Employee Termination & Due Process in the Philippines

A comprehensive legal exposition (updated as of 16 May 2025)

1. Constitutional & Statutory Foundations

Security of tenure – Art. XIII §3 of the 1987 Constitution guarantees that “no employee shall be dismissed except for a just or authorized cause and after observance of due process.”
Labor Code provisions
- Art. 296 (former Art. 281) – defines probationary employment, fixes the ordinary probationary period at “not exceeding six (6) months” from the employee’s start date unless an apprenticeship agreement or a special law (e.g., for private-school teachers) allows a longer period.
- Arts. 297-299 – enumerate just causes and authorized causes applicable to all employees, probationary or regular.
DOLE Department Order No. 147-15, Series of 2015 – the latest consolidated rules on termination. It clarifies the notice-and-hearing requirements for every recognized ground, including failure to qualify as a regular employee (a unique ground that applies only to probationary workers).
Civil Code Art. 1700 and Art. 1159 – underpin the employer-employee relationship as a contract subject to law, morals, good customs, and public policy.

2. Nature & Incidents of Probationary Employment

Aspect	Key Rules
Purpose	A trial phase to determine if the employee can meet reasonable performance standards set by the employer.
Duration	Default: ≤ 6 months. Longer only if: (a) a legitimate apprenticeship (Art. 74), (b) academic teaching (up to 3 years under the Manual of Regulations for Private Schools), or (c) mutual agreement proven by clear evidence that a longer period is necessary and not a circumvention.
Conversion to regular status	Occurs automatically if: (1) the period lapses without valid termination; (2) the employee is allowed to keep working past the 6-month mark; or (3) the employer fails to communicate the performance standards at the start (Art. 296, Abbott v. Alcaraz, G.R. 158089, 22 June 2011).
Rights during probation	Statutory minimum wages & benefits, union and collective bargaining rights, and protection against dismissal without cause and due process.

3. Permissible Grounds for Terminating a Probationer

Failure to meet reasonable standards (Art. 296, 2nd paragraph).
Just causes (Art. 297) – serious misconduct, willful disobedience, gross & habitual neglect, fraud, commission of a crime against the employer or his family, other analogous causes.
Authorized causes (Art. 298 for installation of labor-saving devices, redundancy, retrenchment, closure; Art. 299 for disease).
Other lawful causes – e.g., completion/expiry of a fixed-term mutually agreed upon and genuine (not a disguised probationary contract).

Practical note: Employers sometimes confuse nos. 1 and 2. Failure to meet standards is not a just cause; it is a statutory cause unique to probationary employees. Distinguishing the two determines the correct procedural due-process template and whether separation pay is due.

4. Procedural Due-Process Templates

Ground	First notice (charge)	Opportunity to be heard	Second notice (decision)	Extra requirement
Failure to meet standards	Inform the probationer, in writing, of (a) the specific standard(s) supposedly unmet; (b) detailed facts or scores; (c) directive to submit a written explanation.	A reasonable period (≥ 5 calendar days per D.O. 147-15) to answer & a meeting/hearing if requested.	Written notice of termination stating factual basis.	*Standards must already have been communicated at the time of engagement.*
Just cause	Standard “notice to explain” stating specific act, rule violated, and evidence.	Same 5-day rule; formal hearing required if requested, petitioned by employee, or substantial evidentiary disputes exist.	Written notice of dismissal detailing grounds & evidence relied upon; served within 30 days from 1st notice.	—
Authorized cause	Single written notice to both the employee and the DOLE ≥ 30 days before effectivity stating the ground and the facts.	No hearing needed; employer’s management prerogative subject to good faith and fair criteria.	—	Payment of statutory separation pay (½- to 1-month per year of service, depending on cause).

Failure to observe the correct template makes the dismissal procedurally infirm even if the substantive ground is valid. The dismissal then becomes legal as to cause but defective as to process, entitling the employee to nominal damages (≌ ₱30 000 in Jaka Food v. Pacot, G.R. 151378, 10 March 2005; adjusted to ₱50 000 in subsequent cases).

5. Communication of Standards — the Threshold Requirement

The doctrine: In **almost every Supreme Court case on probationary dismissal, the critical question is whether the employer proved that the employee was informed of the performance standards at the time of engagement. Key rulings

Abbott v. Alcaraz – orientation training and an employee handbook were sufficient notice; termination for failing sales targets upheld because targets were clearly explained upon hiring.
Aliling v. Feliciano (G.R. 185829, 25 April 2012) – standards disclosed mid-way through probation ≠ valid notice; employee deemed regular and dismissal void.
Robina Farms v. Villa (G.R. 170779, 6 December 2010) – “company policy” on work attitude issued months after hiring was inadequate.
Copyking Filipinas v. Trinidad (G.R. 167370, 11 May 2005) – furnishing a “Job Description” on the first day satisfied the notice requirement.

6. Substantive Proof of Poor Performance

While employers enjoy wider latitude in evaluating a probationer, the dismissal must still rest on substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate.” Acceptable proofs include:

Performance appraisal forms signed by the employee
Sales / error-rate statistics
Written counseling memoranda
Peer or client feedback sheets
E-mail directives and documented infractions The Supreme Court has struck down dismissals predicated on subjective assertions (“poor attitude,” “not a team player”) unsupported by documents or testimony (Malaya Shipping v. Reyes, G.R. 155983, 30 July 2004).

7. Authorized-Cause Separation of a Probationer

Even employees on probation may be retrenched, declared redundant, or dismissed for disease—but they enjoy the same 30-day prior notice and separation-pay guarantees given to regular employees (IBM v. NLRC, G.R. 109902, 9 September 1994). The fact of probation only removes the need for new separation pay if the dismissal is for failure to qualify; it does not remove statutory pay for authorized causes.

8. Burden of Proof

The employer always bears the onus to prove:

The assigned performance standards existed and were communicated at hiring;
Substantial evidence of the employee’s failure to meet them; and
Compliance with the appropriate procedure. Absent any one of the three, dismissal is illegal.

9. Illegal Dismissal: Consequences & Remedies

Scenario	Reliefs normally awarded
No valid ground (e.g., standards proved or communicated improperly)	Reinstatement (or separation pay in lieu) + full back-wages from dismissal to reinstatement/separation. Probationer is often declared regularized.
Valid ground but flawed procedure	Nominal damages (₱30 000–₱50 000) per Jaka and Abbott.
Both ground & procedure lacking	Reinstatement + back-wages + moral & exemplary damages + atty.’s fees if dismissal was in bad faith.

10. Special Industry Rules

Education – Private-school teachers may undergo up to three (3) years’ probation (Education Act of 1982; MECS Order 10-97). Due-process templates remain the same but the longer period demands regular evaluation reports.
Security agencies / project-based work – May stipulate project completion as the probationary yardstick, but performance standards must still be written and discussed at the outset (Philippine Global Communications v. De Vera, G.R. 171036, 17 April 2013).
Government-owned firms – If covered by the Civil Service, the 6-month cap and CSC MC No. 1 s. 1997 on performance evaluation prevail.

11. Practical Compliance Checklist for Employers

Document the standards – job description, KPI sheet, or handbook page attached to the contract.
Secure the employee’s signature on the standards upon hiring.
Conduct periodic appraisals with written results (monthly/bi-monthly).
Serve a notice to explain at least 1-2 weeks before the end of probation if results are unsatisfactory.
Hold a hearing or clarification meeting and minute the proceedings.
Issue the termination notice on or before the last day of the 6-month period.
File the Termination Report with the DOLE Regional Office within 30 days (Rule XXIII, Book III, Omnibus Rules).

12. Practical Tips for Probationary Employees

Request a written job description and KPI list on Day 1.
Keep copies of all evaluations and e-mail assignments to build a performance dossier.
Submit written explanations within the 5-day window if served a notice.
If dismissed, file a complaint with the NLRC or DOLE’s Single Entry Approach (SEnA) within four (4) years to avoid prescription.

13. Frequently Asked Questions

Question	Short Answer
Can the 6-month period be “extended”?	Only if: (a) employee voluntarily agrees and DOLE apprenticeship standards apply, or (b) a justifiable industry practice (e.g., 12-month airline pilot check-out) exists and is specifically allowed by law or CBAs. Otherwise, extension converts the employee to regular.
Is a verbal notice enough?	No. Both notices must be in writing. Verbal warnings are ignored in litigation.
Does a probationer get separation pay if dismissed for failing KPIs?	No, unless the CBA or company policy grants it.
What if the employer files the DOLE termination report late?	It does not by itself invalidate the dismissal but may evidence bad faith and invite administrative fines.
Can a probationer join a union?	Yes. The right to self-organization is guaranteed to all employees from day one.

14. Key Supreme Court Cases (chronological)

Mariwasa Mfg. v. Leogardo – G.R. 74246 (1989) – Landmark on standards notice.
Agabon v. NLRC – G.R. 158693 (2004) – Doctrine on nominal damages for procedural lapses.
Copyking (2005) – Written job description as sufficient notice.
Jaka Food (2005) – ₱30 000 nominal damages benchmark.
Abbott v. Alcaraz (2011) – Detailed orientation equals proper notice; ₱50 000 nominal damages.
Aliling v. Feliciano (2012) – Late disclosure of standards renders employee regular.
Philcomsat v. Maspil (2014) – “Self-evaluation form” not signed by the employee, insufficient.
Convergys Phils. v. Genuino (2018) – KPI sheets e-mailed on Day 1 count as notice in ICT/BPO setups.
Lourdes School of Mandaluyong v. Santos (2024) – Reiterated three-year teacher probation plus due process.

15. Take-away Principles

Notice of standards at hiring is the linchpin; without it, dismissal collapses.
Two-notice rule applies even to KPI failures; authorized causes require 30-day DOLE notice instead.
Substantial evidence, not perfect proof, suffices—but random opinion and post-hoc memoranda fall short.
Remedies escalate from nominal damages to full reinstatement and back-wages depending on the gravity of due-process breaches.
Documentation culture saves employers and vindicates diligent employees.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific concerns, consult a Philippine labor-law practitioner or the Department of Labor and Employment.