Legal grounds and due process for early termination

Probationary employment is a lawful arrangement that lets an employer assess whether a newly hired worker is fit for regular employment, while still affording the worker constitutional and statutory protection to security of tenure and due process. In Philippine labor law, a probationary employee is not “at-will.” They may be terminated only on grounds and through procedures allowed by law.

1) Governing legal framework

Core rules (Labor Code structure)

Philippine law recognizes probationary employment and sets the conditions for its validity and the allowable bases for termination. In substance, the controlling principles are:

Security of tenure applies to all employees, including probationary employees.
Probationary employment is time-bound (general rule: not more than 6 months), and is meant to test qualification for regularization.
A probationary employee may be terminated before the end of the probationary period only if:
1. for a just cause (employee fault/misconduct-type grounds); or
2. for failure to meet reasonable regularization standards that were made known at the time of engagement; or
3. for authorized causes (business/health reasons), when applicable.

2) What makes probationary employment valid

A. Probation must be for a legitimate purpose

Probation must truly be for evaluation—i.e., the role has criteria for regularization and the employer actually assesses performance/fitness.

B. Probationary period: general maximum is 6 months

General rule: probationary status cannot exceed 6 months from the employee’s start date.
If the employee continues working beyond the probationary period without a valid extension recognized by law, the employee becomes regular by operation of law.
“Six months” is typically treated as 180 days in many workplace computations, but employers should be consistent and careful with start/end counting (and align with how the company defines the end date in the contract).

C. The “standards made known” requirement (most litigated)

For termination based on failure to qualify, the employer must show that the reasonable standards for regularization were communicated to the employee at the time of engagement.

Practical meaning: At hiring/onboarding (not halfway through), the employee must be informed of what they must meet to pass probation, such as:

performance metrics (quality, accuracy, quota/targets),
behavioral expectations (attendance, punctuality, teamwork),
competency requirements (skills tests, certifications),
compliance expectations (policy adherence, code of conduct).

If the employer fails to communicate standards at engagement: the employee may be treated as regular from day 1 for purposes of security of tenure, making “failed probation” terminations highly vulnerable.

D. Contract labels do not control

Calling someone “probationary” does not automatically make it lawful. Courts look at the substance: length of service, nature of work, whether standards were communicated, and whether the arrangement was used to evade regularization.

3) Early termination during probation: the only lawful grounds

There are three major legal lanes. The lane chosen dictates what must be proven and what due process applies.

Lane 1: Termination for JUST CAUSES (employee fault)

These are grounds based on the employee’s wrongful act or culpable behavior, such as:

serious misconduct,
willful disobedience of lawful orders,
gross and habitual neglect of duties,
fraud or willful breach of trust,
commission of a crime against the employer/persons in authority,
other analogous causes.

Key point: Probationary employees can be dismissed for just causes the same way regular employees can—but the employer must prove the cause and comply with procedural due process.

Lane 2: Termination for FAILURE TO MEET PROBATIONARY STANDARDS

This is the distinctive feature of probationary employment.

To validly terminate on this basis, the employer generally must prove:

Standards existed and were reasonable for the job;
Standards were made known at the time of engagement;
The employee failed to meet them; and
The employee was given procedural due process appropriate to the ground (at minimum, written notice; and in best practice, a documented evaluation process).

Typical examples:

consistently missing agreed sales targets despite coaching and time to improve,
repeated quality errors falling below stated accuracy requirements,
failing a required competency assessment communicated at hiring,
chronic attendance problems when attendance is part of communicated standards (note: if framed as misconduct/attendance violations, this may also fall under just cause—choose the correct lane and process).

Common mistakes that lead to illegal dismissal findings:

standards introduced only after hiring,
vague standards (“must be good,” “must be competent”) without measurable expectations,
no contemporaneous documentation of performance gaps,
termination reason is really a concealed just-cause allegation without using the just-cause due process.

Lane 3: Termination for AUTHORIZED CAUSES (business/health reasons)

These are grounds not based on employee fault, such as:

redundancy,
retrenchment to prevent losses,
installation of labor-saving devices,
closure/cessation of business,
disease not curable within the period allowed by law and prejudicial to health.

Important: Probationary status does not bar authorized-cause termination, but the employer must comply with:

substantive requirements (the authorized cause must be real, supported by evidence, and done in good faith), and
procedural requirements (notably, notice rules).

4) Due process requirements: what procedure applies

Philippine labor dismissal disputes analyze two dimensions:

Substantive due process (there is a valid ground); and
Procedural due process (correct process/notice was followed).

A. Due process for JUST CAUSE dismissal (the “twin notice” rule)

For dismissals based on employee fault:

First written notice (Notice to Explain / Charge Sheet):
- states specific acts/omissions complained of,
- cites relevant rule/policy if applicable,
- gives the employee reasonable opportunity to submit a written explanation.
Opportunity to be heard:
- can be a hearing or conference when requested or when substantial factual disputes exist,
- employee may present evidence, explain, and respond.
Second written notice (Notice of Decision):
- informs employee of the decision to terminate,
- states the grounds and the basis for the conclusion.

Applies to probationary employees too when the ground is just cause.

B. Due process for “failure to meet standards” termination

This ground is not exactly “misconduct,” but the employee still has a right to be informed and treated fairly.

At minimum, employers should provide:

Written notice of termination stating that the employee failed to meet the probationary standards and summarizing the evaluation basis.

Best practice (strongly recommended to withstand legal scrutiny):

written probation standards acknowledged at hiring,
documented performance evaluations,
coaching/counseling records (where feasible),
measurable examples of failure (reports, QA results, target attainment summaries),
a short chance to respond when practicable (even if not as formal as just-cause hearings), especially if the employee disputes accuracy of evaluations.

Do not disguise a misconduct case as “failed probation.” If the real issue is a rule violation (e.g., dishonesty, insubordination), it is safer to proceed under just cause with twin notices.

C. Due process for AUTHORIZED CAUSE termination (30-day notice)

For authorized causes, the typical procedural requirement is:

Written notice to the employee at least 30 days before effectivity; and
Written notice to DOLE at least 30 days before effectivity.

Additionally, authorized-cause termination usually requires separation pay depending on the ground (e.g., redundancy/retrenchment/closure rules vary).

Note: If a company is implementing redundancy/retrenchment affecting probationary employees, it must still meet the authorized-cause standards (fair criteria, good faith, evidence).

5) Burden of proof and evidence: who must prove what?

In illegal dismissal cases, the employer bears the burden to prove the legality of the dismissal.

For just cause:

Employer must prove:

the employee committed the act,
the act fits a just cause,
dismissal is a proportionate penalty, and
twin-notice due process was followed.

For failure to meet standards:

Employer must prove:

standards were communicated at engagement,
standards are reasonable and job-related,
evaluation shows failure, supported by records,
proper notice was given.

For authorized cause:

Employer must prove:

the authorized cause is real and in good faith,
selection criteria are fair (where applicable),
proper notices were served, and
separation pay compliance (where required).

6) When a probationary employee becomes regular (and why it matters)

A probationary employee may become regular by operation of law when:

They are allowed to work beyond the probationary period without valid termination; or
The job is usually necessary/desirable to business and the probation arrangement is used improperly; or
The employer failed to make probationary standards known at hiring, undermining the legal basis to terminate for “failure to qualify.”

Once regular, dismissal becomes restricted to just/authorized causes only—and “failed probation” is no longer available.

7) Special situations and exceptions

A. Teachers in private schools

Private school teachers are commonly governed by special education regulations and jurisprudence recognizing a longer probationary period (commonly three consecutive years of satisfactory service, subject to applicable rules). Termination or non-renewal within that probation framework must still meet the applicable standards and due process.

B. Fixed-term, project, seasonal, and casual arrangements

These are different employment categories with different tests. Misclassifying a worker as “probationary” when the arrangement is actually project/fixed-term (or vice versa) creates legal risk. Courts look at:

the nature of work,
how hiring was structured,
whether the term/project was genuine,
and whether security of tenure was undermined.

C. Extensions of probation

As a general principle, probation should not exceed the maximum period allowed by law. Extensions are legally risky unless anchored on recognized exceptions (e.g., legally regulated professions, teachers under education rules). Employers should avoid informal “extensions” that can be construed as regularization.

8) Consequences of illegal dismissal of a probationary employee

If a probationary employee is illegally dismissed, typical remedies include:

Reinstatement without loss of seniority rights and
Full backwages from time of dismissal until actual reinstatement (or until finality of decision, depending on the case posture and remedy),

or, when reinstatement is no longer feasible (e.g., strained relations, position abolished):

Separation pay in lieu of reinstatement, plus backwages (case-dependent).

Additionally:

money claims (unpaid wages, 13th month, etc.) may be awarded,
procedural defects can lead to liability even if a substantive ground existed (e.g., nominal damages in certain just-cause due process violations).

9) Practical compliance checklist (employer-side)

At hiring (day 1 readiness)

Written employment contract clearly stating:
- probationary status,
- probation length and end date,
- position/title and duties,
- regularization standards (attached KPI sheet, competency matrix, code of conduct acknowledgment).
Onboarding acknowledgment signed by employee:
- handbook/policies,
- attendance rules,
- performance metrics and evaluation schedule.

During probation

Regular documented check-ins (e.g., 30/60/90 days).
Written performance feedback with concrete examples.
Coaching/training records (especially if performance-based).
Consistent application of standards across probationary employees in similar roles.

Before termination decision

Identify correct lane:
- misconduct? → just cause twin notices,
- poor performance vs standards? → failure to qualify process with evaluation proof,
- business reason? → authorized cause 30-day notices and separation pay rules.
Prepare complete paper trail:
- standards proof (signed acknowledgment),
- evaluation results,
- notices with proper dates and service proof.

10) Employee-side protections and practical steps

A probationary employee may contest dismissal when:

the stated ground is untrue or unsupported,
standards were not communicated at hiring,
evaluation is arbitrary/discriminatory,
due process was not observed,
dismissal was retaliation (e.g., for exercising labor rights),
authorized cause is used as a pretext.

Evidence an employee can preserve:

contract and job offer documents,
copies/photos of standards/KPIs (or proof none were given),
performance appraisals and emails,
memos/notices,
attendance records and payslips,
chat messages showing coaching, targets, or shifting expectations.

11) Illustrative templates (content-level guidance)

A. Probationary standards clause (illustrative)

“You will be assessed based on the following regularization standards: (1) attendance and punctuality: no more than __ instances of tardiness/absence per month without valid justification; (2) productivity: average output of __ per week by the 8th week; (3) quality: error rate not exceeding __%; (4) conduct: compliance with company code of conduct and policies. These standards are discussed and acknowledged upon engagement.”

B. Termination notice for failure to qualify (illustrative structure)

Heading: Notice of Termination (Probationary Employment)
Basis: Failure to meet communicated probationary standards
Facts: specific metrics/results and evaluation periods
Reference: signed standards acknowledgment and evaluations
Effectivity date
Final pay and clearance instructions

(If there is any factual dispute or the issue overlaps with misconduct, the safer approach is to allow a written response and document the consideration of that response.)

12) Key takeaways

Probationary employees are protected by security of tenure; they are not terminable “anytime for any reason.”
Early termination is legal only for:
1. just causes, or
2. failure to meet reasonable standards made known at engagement, or
3. authorized causes (with their own notice and pay rules).
The most common legal failure is lack of proof that standards were communicated at hiring, followed by weak documentation and wrong due process lane.
When in doubt, align the ground with the correct procedure and document each step.