Notice and Due Process Requirements (with key rules, doctrines, and common pitfalls)

1) Why probationary termination is legally “special”

Probationary employment exists to let an employer evaluate fitness for regular employment—skills, competence, work attitude, and suitability for the role—within a limited period. But probationary status is not a free pass to dismiss at will. Even probationary employees enjoy security of tenure: they may be terminated only on legally recognized grounds and with the required level of due process.

Philippine law draws a sharp distinction between:

Substantive validity: Is there a lawful ground to terminate?
Procedural due process: Was the correct notice-and-hearing procedure followed?

A probationary termination can fail on either or both.

2) Core legal framework (Philippine context)

Primary sources

1987 Constitution, labor protection and security of tenure principles
Labor Code (renumbered provisions commonly cited today):
- Art. 296 (Probationary Employment) (formerly Art. 281)
- Art. 297 (Just Causes) (formerly Art. 282)
- Art. 298 (Authorized Causes) (formerly Art. 283)
- Art. 299 (Disease) (formerly Art. 284)
- Art. 294 (Security of Tenure; Illegal Dismissal consequences) (formerly Art. 279)
Omnibus Rules Implementing the Labor Code (Book VI, termination rules)
Supreme Court jurisprudence (especially on “reasonable standards,” and the required notices)

3) What makes employment “probationary” (and when it becomes regular)

A. The essentials of a valid probationary arrangement

A probationary employment relationship must reflect these fundamentals:

Probationary status is made known at engagement If the worker is not clearly informed that the engagement is probationary at the time of hiring, the employee may be treated as regular from day one.
Probation cannot exceed 6 months (general rule) The Labor Code sets a general maximum of six (6) months from the date the employee starts working.
Reasonable standards for regularization must be made known at engagement The employer must communicate the standards the employee must meet to become regular at the time of engagement. This requirement is central in case law (notably Abbott Laboratories v. Alcaraz and Aliling v. Feliciano).

B. When probation ends and regularization happens

If the employee is allowed to work after the probationary period without a valid termination within that period, the employee generally becomes regular by operation of law.
Probationary employment is not the same as a fixed-term contract that simply “expires.” Probation is an evaluation period that ends in regularization unless a lawful termination occurs during probation.

C. Exceptions / special categories (important in practice)

Private school teachers often have a different probationary structure (commonly tied to academic-year-based rules and education regulations), and jurisprudence treats them differently from ordinary private sector employees.
Apprentices/learners have distinct rules (not the same as probationary employment).
Government employees are generally outside the Labor Code framework and follow civil service rules.

4) Lawful grounds to terminate a probationary employee

A probationary employee may be terminated only for any of the following broad grounds:

Ground 1: Just causes (Art. 297) — misconduct/disciplinary reasons

Examples include:

serious misconduct
willful disobedience
gross and habitual neglect of duties
fraud or willful breach of trust
commission of a crime against the employer or its representatives
analogous causes

Key point: If the real reason is misconduct/discipline, the employer cannot evade the stricter due process rules by labeling it “failure to qualify.”

Ground 2: Failure to meet reasonable standards for regularization (Art. 296)

This is the “probation-specific” ground: the employee is terminated because performance or suitability does not meet the employer’s reasonable, job-related standards—provided these standards were made known at the time of engagement.

This ground is not about punishing wrongdoing; it’s about evaluation.

Ground 3: Authorized causes (Art. 298) — business/economic reasons

Examples include:

redundancy
retrenchment to prevent losses
closure or cessation of business (or part of it)
installation of labor-saving devices

These causes can apply whether the employee is probationary or regular, but the notice and pay requirements are specific and strict.

Ground 4: Disease (Art. 299)

Termination due to disease requires compliance with statutory conditions (including medical certification requirements under the rules).

5) The “reasonable standards” requirement (the most litigated issue)

A probationary termination for failure to qualify commonly turns on two questions:

A. Were the standards reasonable and job-related?

Standards should be:

connected to the role (e.g., accuracy and turnaround time for data encoding; sales targets for a sales role if properly defined; quality metrics for production)
measurable or at least capable of objective evaluation
not arbitrary, discriminatory, or impossible

B. Were the standards made known at the time of engagement?

This is a make-or-break rule. Standards are usually “made known” through:

the employment contract (probationary clause + clear criteria)
a job description signed/acknowledged by the employee
documented KPIs/scorecards
written company policies / performance manuals provided at hiring
onboarding documents acknowledged at the start

Case law strongly emphasizes that standards must be communicated at engagement; otherwise, termination for “failure to meet standards” is vulnerable to being declared illegal dismissal.

Practical consequence: A generic clause like “must meet company standards” without identifying what those standards are is risky—especially for metric-based roles (e.g., quotas, output targets, error rates). Courts have struck down dismissals where the supposed standard was unclear or not shown to have been disclosed at hiring (e.g., Aliling v. Feliciano).

6) Procedural due process: the notice rules depend on the ground

A. If terminating for a just cause (disciplinary)

The two-notice rule applies (and the “opportunity to be heard” requirement). The leading due process framework is often traced to cases like King of Kings Transport v. Mamac.

1) First written notice (Notice to Explain / Charge Sheet)

Must:

specify the acts/omissions complained of
cite the rule/policy violated (if applicable)
give the employee a reasonable opportunity to explain (jurisprudence commonly recognizes at least 5 calendar days as the benchmark)
invite the employee to a conference/hearing when appropriate

2) Opportunity to be heard (hearing/conference)

A full trial-type hearing is not always required, but there must be:

a real chance to respond
consideration of the employee’s explanation and evidence
a hearing or conference when requested or when factual issues need clarification

3) Second written notice (Notice of Decision)

Must:

inform the employee of the decision to terminate
state the grounds and reasons
show that the employer considered the employee’s side

Probationary status does not reduce these requirements when the ground is just cause.

B. If terminating for failure to meet reasonable standards (evaluation-based)

This is where probationary termination differs most from disciplinary dismissal.

The typical legal minimum: written notice stating reasons

Under the implementing rules, termination of a probationary employee for failure to qualify requires that the employer notify the employee in writing of the termination and the reasons for it within a reasonable time from the effective date of termination.

While the strict two-notice structure is most closely associated with just cause dismissals, employers must still observe fundamental fairness:

the termination notice should identify the specific standards and how the employee failed to meet them
it should not be a bare conclusion (“did not meet expectations”)
it should be supported by evaluation records, metrics, or documented assessments
the employer should be prepared to prove the standards were disclosed at hiring and that the evaluation is not arbitrary

Timing realities that matter

Termination for failure to qualify must occur during the probationary period.
Waiting until after the probationary period lapses is legally dangerous because the employee may already be regular by operation of law.

Best-practice fairness (often decisive in disputes)

Even if not always framed as a strict “two-notice rule,” employers who:

provide documented feedback during probation,
identify deficiencies early,
provide coaching or performance improvement steps (role-dependent),
maintain signed evaluations, tend to withstand challenges better—because the process looks like a genuine evaluation rather than a pretext.

C. If terminating for an authorized cause (business/economic)

This is the strictest notice regime in terms of timing.

30-day dual notice requirement

For redundancy, retrenchment, closure, labor-saving devices, etc., employers must generally give:

written notice to the employee, and
written notice to DOLE, at least 30 days before the intended date of termination.

Separation pay

Authorized causes typically require separation pay (amount varies by cause). Failure to pay what is required can expose the employer to monetary liability.

For disease (Art. 299)

Termination due to disease requires compliance with specific conditions under the Code and rules, including medical certification standards (and separation pay rules tied to the law and implementing regulations).

7) Burden of proof and what evidence wins/loses cases

In illegal dismissal disputes, the employer generally bears the burden to show that dismissal was lawful.

For probationary terminations, the most important evidence usually includes:

signed probationary employment contract (showing the employee was informed at engagement)
documented regularization standards acknowledged at hiring
evaluation tools (scorecards, rating sheets, KPIs, training checklists)
performance data (quality, output, targets)
emails/coaching memos/warnings (if relevant)
termination notice(s) and proof of service

Common employer failures that lead to illegal dismissal findings:

standards were not disclosed at hiring
standards are vague, shifting, or unsupported by records
the employee is terminated after probation lapsed
the stated reason is “failure to qualify” but the facts show misconduct, without the two-notice procedure
inconsistent treatment suggesting arbitrariness or bad faith

8) Consequences of non-compliance (what happens if the termination is defective)

A. No valid ground (substantive defect) → illegal dismissal

Typical consequences under the Labor Code and jurisprudence include:

reinstatement (if viable) without loss of seniority rights, and
full backwages from dismissal until reinstatement (or finality/actual reinstatement depending on the case posture), plus other monetary benefits proven due

If reinstatement is not feasible, separation pay in lieu of reinstatement may be awarded in appropriate cases, depending on circumstances and jurisprudence.

Probationary employees can be awarded these remedies; and where the employee should have become regular but for an unlawful termination, tribunals may treat the employee as having attained regular status by operation of law.

B. Valid ground but defective procedure → monetary consequences (nominal damages doctrine)

Philippine jurisprudence recognizes that even when a dismissal is substantively valid, failure to observe the required procedure can result in nominal damages:

Agabon v. NLRC (just cause + procedural defect → nominal damages)
Jaka Food Processing v. Pacot (authorized cause + defective notice → nominal damages)

While commonly referenced benchmark amounts appear in these rulings (often discussed as ₱30,000 for just-cause procedural defects and ₱50,000 for authorized-cause notice defects), later decisions may adjust awards depending on circumstances. The key point is the doctrine: procedure matters, even if the cause is valid.

For probationary “failure to qualify” terminations, tribunals closely scrutinize whether the statutory notice requirement and fairness were observed; failure can result in monetary liability even if performance issues are real—especially when documentation is weak.

9) How tribunals determine the “real cause” (and why labels don’t control)

A recurring pattern in disputes is the employer calling a termination “failure to meet standards” when the facts look like a disciplinary case (e.g., tardiness, insubordination, rule violations).

Philippine labor adjudication looks beyond labels to the substance:

If the termination is effectively for misconduct, the employer is expected to follow just-cause due process (two notices + opportunity to be heard).
If the termination is truly evaluative, the employer must prove reasonable standards made known at hiring and a non-arbitrary evaluation.

Mislabeling can convert what might have been defensible into an illegal dismissal or at least expose the employer to damages.

10) Drafting and content guidance for notices (what they should say)

A. Notice to Explain (just cause) should include:

specific factual narration (who/what/when/where)
policy/rule violated
directive to submit a written explanation within a specified period
notice of a conference/hearing (or that one may be requested)
warning that a decision may be made based on available records

B. Notice of Decision (just cause) should include:

summary of charge(s) and evidence considered
summary of employee’s explanation and why it was accepted/rejected
the penalty imposed (termination) and effective date

C. Probationary failure-to-qualify termination notice should include:

the probationary status and probation period dates
the specific standards for regularization (attach or cite the acknowledged document)
the evaluation results (attach scorecards/ratings/metrics)
a clear statement that employment is terminated for failure to meet those standards
effective date and final pay/clearance processing details (administrative, not as a substitute for due process)

D. Authorized cause notice should include:

the authorized ground (redundancy/retrenchment/closure, etc.)
explanation of business reason
effectivity date (at least 30 days after notice)
separation pay computation basis
proof of DOLE notice submission

11) High-frequency problem areas (what “breaks” probationary terminations)

No clear probationary clause at hiring → employee treated as regular
No evidence standards were disclosed at hiring → failure-to-qualify ground collapses
“Moving target” standards → arbitrariness
Termination after probation lapsed → regularization by operation of law
Using failure-to-qualify to avoid two-notice rule → due process violation
Weak documentation → employer fails burden of proof
Discrimination/retaliation indicators (e.g., union activity, pregnancy, protected complaints) → heightened scrutiny, potential illegality

12) Key doctrines to remember (condensed)

Probationary employees have security of tenure; termination requires a lawful ground.
For “failure to qualify,” standards must be reasonable and made known at engagement (Abbott, Aliling).
For just causes, the two-notice rule and opportunity to be heard apply (King of Kings framework).
For authorized causes, 30-day notice to employee and DOLE is required, plus separation pay where mandated.
Procedural defects can result in nominal damages even when a valid cause exists (Agabon, Jaka).
The law looks at the true reason, not the employer’s label.

13) One-page compliance map (quick reference)

1) Identify the real ground

Misconduct/discipline → Just cause (Art. 297)
Poor performance/unsuitability vs disclosed standards → Failure to qualify (Art. 296)
Business reason → Authorized cause (Art. 298)
Illness → Disease (Art. 299)

2) Apply the correct procedure

Just cause → Notice to Explain + chance to respond/hearing + Notice of Decision
Failure to qualify → Written termination notice with reasons, anchored on standards disclosed at hiring, supported by evaluations, served within a reasonable time
Authorized cause → 30-day notice to employee + DOLE, separation pay as required
Disease → comply with medical certification and statutory requirements

3) Act within the probationary period

Terminate (if justified) before probation ends; otherwise regularization risks attach.

14) Conclusion

Probationary termination in the Philippines is legally sustainable only when the employer can prove: (1) a lawful ground, (2) standards properly disclosed at hiring when invoking failure-to-qualify, and (3) the correct notice-and-due-process pathway based on the true ground. Most disputes are decided not by the existence of performance issues in the abstract, but by the employer’s ability to show clear standards, timely action, non-arbitrary evaluation, and procedurally correct notices.