I. Why the Pandemic Made Probationary Employment Legally “Tricky”

Probationary employment is designed to give the employer a limited window to assess fitness for regularization, while giving the employee a fair chance to qualify under known standards. The COVID-19 pandemic disrupted the usual “assessment window” through lockdowns, forced closures, reduced operations, remote work, illness/quarantine, and shifting business needs—raising recurring questions:

Can a probationary period be extended because work was interrupted?
Can a probationary employee be terminated due to business losses, closures, or reduced headcount?
When does a pandemic-related termination become illegal dismissal or constructive dismissal?

This article consolidates the governing rules and practical litigation issues under Philippine labor law.

II. Probationary Employment: The Core Legal Framework

A. Definition and governing rule

Under the Labor Code (traditionally Article 281; renumbered in later compilations as Article 296), a probationary employee is one engaged on a trial basis to determine fitness for regular employment.

B. Maximum duration (general rule)

General rule: Probationary employment shall not exceed six (6) months from the date the employee started working.
Effect of exceeding the period: If the employee is allowed to work beyond the probationary period, the employee generally becomes regular by operation of law.

C. Mandatory requirement: Standards must be made known at engagement

A foundational rule in jurisprudence: the employer must communicate the reasonable standards for regularization at the time of engagement. If the employer fails to do so, the employee may be treated as regular from day one (subject to certain narrow exceptions recognized by case law, such as job categories where standards are inherent or self-evident, but employers should not rely on this).

Pandemic relevance: If performance standards were changed mid-probation due to remote work or business pivoting, the key legal question becomes whether the employee was fairly informed and given a reasonable chance to meet the updated standards.

III. Extension of Probation During the Pandemic

A. “Extension” vs “interruption/tolling”: why the distinction matters

Employers often said: “We will extend your probation because you were not fully assessed due to ECQ/lockdown.” Legally, this can be framed in two ways:

Extension (adding time beyond the 6-month cap), versus
Interruption/Tolling (arguing the probation “clock stopped” during periods with no work or no opportunity to assess).

Philippine law’s text is straightforward about the 6-month limit, but real-world disruptions created disputes about what counts toward the six months.

B. General litigation risk: courts are skeptical of extensions that defeat security of tenure

The default presumption remains: if the employee is kept working after the six-month probationary period, the employee becomes regular.

A claimed “extension” is commonly attacked as:

a circumvention of the statutory cap,
a way to keep employees insecure longer than allowed, or
an afterthought unsupported by contemporaneous documentation.

C. When pandemic-related “extension” arguments may be more defensible

A more defensible position is not “we extended probation,” but that probationary assessment was genuinely interrupted because:

the establishment was temporarily closed,
the employee was not required/allowed to work, or
the employee was on legitimate quarantine/medical leave and could not perform.

Even then, disputes turn heavily on facts and paperwork:

Was there truly no work performed (or just reduced work)?
Was the employee placed on a legally recognized temporary status (e.g., floating status/suspension of operations)?
Did the employer clearly document the arrangement and communicate how evaluation would proceed?

D. Best practice approach (risk-managed)

If operations are interrupted and the employer believes assessment cannot be completed fairly within six months:

Document the interruption
- closure notices, work suspension memos, quarantine orders, flexible work arrangement notices, etc.
Clarify evaluation mechanics in writing
- whether the probation clock is treated as running only during days actually worked or when assessment is possible, and why.
Avoid keeping the employee working “past six months” without clarity
- because continued work past the cap is a classic trigger for regularization.
Maintain fair, measurable remote-work standards
- outputs, deadlines, attendance/availability metrics, quality checks.

Practical warning: If the employee continues rendering service and the employer continues accepting it, “interruption/tolling” arguments become harder. The safer legal posture is to assume the clock is running unless there is a clear, documented period where the employment relationship was effectively suspended.

IV. Termination of Probationary Employees During the Pandemic

Probationary employees are not “at-will.” They can only be terminated on legally recognized grounds, and with due process appropriate to the ground.

A. Lawful grounds to terminate a probationary employee

A probationary employee may be terminated for:

Just causes (Labor Code Art. 282; renumbered as Art. 297) Examples: serious misconduct, willful disobedience, gross and habitual neglect, fraud/breach of trust, commission of a crime against employer/representative, and other analogous causes.
Failure to qualify as a regular employee (probationary-specific ground) This is not a “just cause” per se; it is the employer asserting the employee did not meet reasonable standards made known at engagement.
Authorized causes (Labor Code Art. 283/284; renumbered as Art. 298/299) Examples: redundancy, retrenchment to prevent losses, installation of labor-saving devices, closure/cessation of business (with distinctions), and disease (where applicable).

Pandemic relevance: Many terminations were framed as redundancy/retrenchment/closure rather than “failure to qualify,” especially when downsizing happened across roles.

V. Due Process Requirements (and How Pandemic Conditions Affected Them)

A. For just causes: the “twin notice” rule and opportunity to be heard

For termination based on just causes, the employer generally must observe:

First written notice (charge/grounds and directive to explain),
Opportunity to be heard (hearing/conference or meaningful chance to respond),
Second written notice (decision to terminate with reasons).

Remote work does not remove due process. Employers can conduct notice and hearing via email, videoconference, or written exchanges—so long as the employee is given a real chance to respond.

B. For failure to qualify: notice must still be meaningful and evidence-based

For probationary termination due to failure to meet standards, employers should be ready to prove:

the standards were reasonable,
the standards were communicated at engagement (or at least before performance was measured),
the employee was fairly evaluated, and
the employee was notified of the failure and the basis.

Common pandemic pitfall: Employers changing KPIs informally due to remote work disruptions, then terminating based on those new expectations without clear documentation.

C. For authorized causes: 30-day notice + separation pay (where required)

For authorized cause terminations, the employer generally must:

serve written notice to the employee and to DOLE at least 30 days before effectivity (subject to nuances in certain closure scenarios), and
pay separation pay when required by law (amount depends on ground).

Pandemic pitfall: Treating “we’re losing money because of COVID” as automatic justification without meeting the legal standards (e.g., required proof for retrenchment) and without proper notice.

VI. Pandemic-Specific Scenarios and How They Are Usually Analyzed

Scenario 1: Closure/temporary suspension of operations (the “floating status” problem)

The Labor Code recognizes bona fide suspension of operations/business (traditionally Art. 286; renumbered as Art. 301) allowing temporary layoff (“floating status”) for up to six (6) months in many contexts.

Key points:

If the suspension exceeds the legally tolerable period (often cited as 6 months), continued non-recall can be treated as constructive dismissal.
If employees are kept in limbo without pay and without a clear, lawful status, disputes arise.

Probationary angle: If a probationary employee is placed on floating status soon after hiring, the employer may later claim “we couldn’t assess you.” The employee may counter: “you hired me when there was no stable work; you can’t use that to deny security of tenure or due process.”

Scenario 2: Retrenchment/redundancy due to pandemic downturn

Employers frequently invoked:

Retrenchment to prevent losses, or
Redundancy (position is in excess of requirements)

These are legitimate authorized causes, but they are scrutinized. Typical contested issues include:

Was the selection of employees for termination fair and based on reasonable criteria?
Was there genuine redundancy, or was it disguised as performance termination?
Was retrenchment supported by credible evidence of losses/impending losses (not merely generalized claims)?
Were DOLE and employee notices properly served, and separation pay properly computed?

Probationary angle: Employers sometimes assume probationary employees are easiest to remove. However, probationary status does not eliminate the employer’s obligation to prove the authorized cause and comply with notice/separation pay rules when that is the invoked ground.

Scenario 3: “Failure to qualify” due to remote work disruption

This is a high-risk ground during pandemic conditions because the employee can argue:

standards were unclear or changed,
the employer failed to provide tools/training/resources in remote setup,
performance metrics were not adjusted for lockdown constraints,
evaluation was rushed or not supported by evidence.

Employers defend by showing:

clear written KPIs,
coaching/feedback trail,
documented performance deficits,
consistent treatment of similarly situated employees.

Scenario 4: Absences due to quarantine, illness, travel restrictions

Many disputes involved labeling pandemic-related absences as:

abandonment,
AWOL,
habitual neglect,
insubordination.

General legal principle: abandonment requires clear intent to sever the employment relationship; mere absence—especially explained by quarantine/lockdown—rarely suffices.

Scenario 5: Termination due to COVID infection or suspected illness

Termination on the ground of disease is an authorized cause with specific statutory safeguards. It is not enough that the employee is sick; legal requirements typically include:

proper medical basis/certification by competent public health authority,
that continued employment is prohibited by law or prejudicial to health and cannot be cured within a period contemplated by law,
payment of the required separation pay.

Employers must also be careful about discrimination and privacy concerns when handling health information.

VII. What Counts as Illegal Dismissal in Pandemic-Related Probation Cases

A dismissal (or constructive dismissal) is commonly found illegal when any of these occur:

A. Lack of a valid ground

Examples:

Termination “because business is slow due to COVID” without meeting authorized cause standards.
Termination for “failure to qualify” when standards were not clearly communicated at engagement.
Using “pandemic” as a blanket justification for termination of only certain employees without objective criteria.

B. Due process violations

Even if a ground exists, failure to observe due process can result in liability (often damages or procedural indemnity in jurisprudence, depending on circumstances), and can strengthen the employee’s case overall.

C. Constructive dismissal (especially via prolonged limbo or coercive pay/role changes)

Constructive dismissal may be argued when:

the employee is forced into indefinite unpaid status,
demoted or assigned humiliating tasks,
pressured to resign because “pandemic” or “probation,”
made to sign quitclaims under duress.

Pandemic hardship does not legalize coercion.

VIII. Burden of Proof and Evidence: What Usually Wins Cases

A. Employer’s burden

In dismissal disputes, the employer must generally prove:

the fact of dismissal (often undisputed), and
that dismissal was for a valid cause and with due process.

B. Evidence that matters most in probationary cases

1) The probationary employment contract

start date, position, probation length,
explicit regularization standards or reference to handbook/KPIs.

2) Proof standards were made known

signed acknowledgment of KPIs/handbook,
onboarding materials, emails, orientation records.

3) Performance documentation

evaluations, scorecards,
coaching memos, improvement plans,
output logs in remote work, QA findings.

4) Pandemic disruption documents

closure/suspension notices,
flexible work arrangement notices,
quarantine/leave documentation.

5) Authorized cause compliance

DOLE notice proof,
selection criteria matrix,
separation pay computation and proof of payment,
board resolutions/management approvals (where relevant),
financial documents (especially in retrenchment disputes).

IX. Remedies When a Probationary Employee Is Illegally Dismissed

A probationary employee who is illegally dismissed can generally be entitled to remedies similar to a regular employee, depending on circumstances:

Reinstatement (without loss of seniority rights), and
Full backwages from dismissal until actual reinstatement (or finality of decision, depending on doctrine), or if reinstatement is no longer feasible:
Separation pay in lieu of reinstatement, plus backwages.

The fact that the employee was probationary does not automatically reduce remedies—especially where the employer’s act violated security of tenure or due process rules.

X. Practical Guidance for Employers (Legally Safer Pandemic-Era Practices)

A. If you must hire during unstable operations

Avoid using probation to “test whether business returns.” Probation is about employee fitness, not market recovery.
Ensure job expectations are realistic in remote/hybrid settings.

B. If operations are interrupted mid-probation

Document the interruption and clarify the employee’s status.
Keep evaluation fair and tied to opportunities actually given.
Be careful about letting an employee work beyond six months without clear legal footing.

C. If downsizing is necessary

Use the correct authorized cause category (redundancy vs retrenchment vs closure).
Apply objective selection criteria (seniority, efficiency ratings, skills relevance, etc.) consistently.
Serve timely notices and pay correct separation pay.

D. If terminating for failure to qualify

Anchor the termination on standards actually communicated.
Ensure the standards are reasonable and job-related.
Keep a defensible record of evaluation and feedback.

XI. Practical Guidance for Employees (How to Assess if Your Dismissal Was Likely Illegal)

You may have a stronger case if:

you were never told clear standards for regularization at hiring,
you were terminated vaguely for “not meeting expectations” without metrics,
you were singled out while others similarly situated were retained,
your employer invoked “pandemic” but did not follow authorized cause procedures (notice to DOLE, 30-day notice, separation pay where required),
you were placed on indefinite floating status or pressured to resign,
your absence was due to quarantine/lockdown and you communicated, but were labeled AWOL/abandonment.

Helpful documents:

employment contract, job offer, handbook acknowledgments,
performance reviews and emails,
notices sent/received, payslips, proof of work outputs,
screenshots of directives and timelines (remote work context).

XII. Key Takeaways

Probation is not at-will employment. Termination still requires a valid ground and proper process.
Six months is the general cap. Letting an employee work beyond it commonly results in regularization.
Pandemic disruption does not automatically justify extension or termination. The employer must still comply with security of tenure rules.
Authorized causes (redundancy/retrenchment/closure) remain available during the pandemic, but require strict procedural compliance and, in many cases, separation pay.
Most pandemic probation disputes are evidence wars: standards communication, evaluation fairness, and documentation of business measures decide outcomes.

If you want, I can also provide (1) a probationary contract clause set tailored for remote work and pandemic interruptions, and (2) a checklist for lawful probationary termination vs authorized-cause termination, both in Philippine drafting style.