1) The legal frame

Security of tenure applies to probationary employees. Under the Labor Code (now renumbered; Art. 296, formerly Art. 281), an employee on probation may be terminated only for:

a just cause (serious misconduct, willful disobedience, etc.);
an authorized cause (redundancy, retrenchment, closure, disease); or
failure to qualify as a regular employee based on reasonable standards made known to the employee at the time of engagement.

Default duration. The general rule is a maximum of six (6) months probationary employment, unless:

A longer period is expressly allowed by law/regulation for the occupation (e.g., private-school teachers under the Manual of Regulations for Private Schools/CHED/DepEd regimes), or
There is a valid apprenticeship/learnership agreement, or
A longer period is clearly agreed because of the nature of the work and is legitimate, not a device to defeat regularization. If the employer keeps the employee beyond the probationary period without a timely and valid termination, the employee becomes regular by operation of law.

2) “Standards” during probation: what the law demands

A. Must be reasonable and related to the job. Standards should genuinely measure job fitness—e.g., quality/accuracy targets, safety compliance, attendance, customer satisfaction, teamwork/behavioral metrics, and core competencies tied to the role.

B. Must be communicated at the time of hiring. This is the heart of probation law. The employer must show when and how the standards were explained (on-boarding pack, signed job description, policy manual acknowledgment, orientation slides, email). Standards given after hiring—or changed midstream without notice—are suspect.

C. Must be applied in good faith and consistently. Use the same yardsticks across similarly situated probationary employees, and avoid “moving the goalposts.”

D. Must be supported by a fair evaluation process. Courts look for an evaluation cadence (e.g., 30/60/90-day reviews), written feedback, coaching, and a chance to improve. Where a company has an appraisal process, substantial compliance matters.

Burden of proof. In a dismissal case, the employer must prove: (1) the standards existed; (2) they were communicated at engagement; (3) the employee failed to meet them; and (4) due process was observed.

3) Timing issues near the end of probation

A. Cutoff discipline. A termination for failure to qualify must take effect no later than the last day of the probationary term. If the employer acts after the period lapses—even by a day—the employee is already regular and may only be dismissed for just/authorized causes with the stricter procedures and consequences.

B. Counting the period. As a safe practice, count six months from the start date and act on or before the day before it lapses. (Many employers use 180 days as a conservative benchmark.) Avoid “artificial extensions” meant to defer regularization.

C. Extensions. Extensions are generally disfavored unless: (i) there is clear, written, voluntary consent by the employee; (ii) the extension is short and for a legitimate, job-related reason (e.g., incomplete rotations due to plant shutdown); and (iii) no statutory ceiling is breached (or a sectoral rule expressly permits a longer probation). Even then, expect close scrutiny.

4) Due process tailored to probationary failures

Type of cause matters.

Just causes (misconduct, etc.): follow the twin-notice rule (notice to explain with detailed facts + opportunity to be heard; then a final notice of termination), and document the hearing/consideration.
Authorized causes (redundancy, retrenchment, closure, disease): 30-day prior written notice to the employee and DOLE, plus separation pay if applicable.
Failure to meet probationary standards: At minimum, provide written notice stating the specific standards and deficiencies, and a meaningful opportunity to respond. Many employers still use the twin-notice format by analogy—it is the safest course and aligns with jurisprudential expectations of fair evaluation and due process.

Substantive vs procedural validity. Even if a probationary failure is substantively valid (real performance gap), procedural lapses (no notice/opportunity to be heard; ignoring the company’s own appraisal steps) can result in nominal damages and, in some cases, a finding of illegal dismissal if the record cannot establish the standards and the failure with competent evidence.

5) Evidence that wins (or loses) cases

Helpful for employers

Signed probationary contract expressly stating the probation term and that retention depends on meeting enumerated standards.
Job description and KPI sheet countersigned at hiring.
Onboarding acknowledgment of the employee handbook/policies.
30/60/90-day evaluations, coaching notes, attendance logs, quality audits, customer complaints with investigation notes, PIPs (performance improvement plans) with timelines and deliverables.
Contemporaneous emails inviting the employee to feedback sessions, and the employee’s written responses.

Helpful for employees

Proof that standards were never shown at hiring, or were delivered late.
Excellent or improving metrics contradicting the employer’s claim.
Inconsistent appraisals between similarly situated probationary staff.
Evidence of retaliation or discrimination, or moving goalposts.
Timing that shows the employer sat on performance issues and only acted after the probation lapsed.

6) Consequences of unlawful termination

If dismissal is declared illegal:

Reinstatement (often as a regular employee, if the probation had lapsed or the standards were not validly invoked) without loss of seniority, or separation pay in lieu if reinstatement is no longer viable;
Backwages from dismissal until actual reinstatement or finality of judgment;
Nominal damages for due-process violations where cause exists but procedure was defective (amounts vary by doctrine and cause category);
Attorney’s fees in certain cases.

If dismissal is valid for failure to qualify and procedure was proper, no separation pay is due (unless a company policy/CBA provides one, or equity considerations apply).

7) Special topics and tricky edges

A. Using “just cause” instead of “failure to qualify.” Employers sometimes rely on “misconduct” late in probation. They must then meet the stricter just-cause standard: substantial evidence of specific acts, proportional penalty, and twin-notice. If the facts sound like performance insufficiency, it is generally cleaner to use failure to qualify—but only with properly communicated standards.

B. Authorized causes near the end of probation. If the real reason is redundancy or closure, the employer cannot avoid separation pay or 30-day notice by labeling the termination as a failure to qualify.

C. Fixed-term + probationary overlays. A fixed term ending before six months can coexist with probation. But if the fixed term is used to evade regularization (e.g., stringing short terms), courts may treat the employment as regular.

D. Attendance and minor infractions. Absenteeism/tardiness may be evaluated either as just cause (if egregious and willful) or as failure to meet standards (if the KPI/attendance policy was part of the probationary standards and duly communicated).

E. Leaves and benefits. Probationers are covered by statutory benefits (minimum wage, OT/rest-day/holiday pay, 13th month, SSS/PhilHealth/Pag-IBIG). Service incentive leave generally accrues after one (1) year of service, but company policy may grant leave earlier.

F. Non-disclosure and restrictive covenants. These are permissible if reasonable; they do not substitute for performance standards and cannot be used post hoc to justify a probationary termination unless the breach is the real cause and is properly charged and proved.

G. Resignations in lieu of termination. A resignation obtained under pressure to avoid illegal dismissal liability may be deemed involuntary. Employers should avoid “resign or be terminated” ultimatums; employees should document any coercion and protest promptly.

8) Practical playbooks

For employers (to withstand scrutiny)

Before Day 1: Prepare a probationary contract; enumerate role-specific standards; attach job description; set a calendar of 30/60/90-day reviews.
Day 1: Explain standards; secure acknowledgments; issue an evaluation plan with dates, rater, tools.
During probation: Document coaching; issue PIP if needed (clear metrics, support, timeline).
By Day 150–170 (conservative): Conduct a final evaluation. If failing, issue notice to explain (if using twin-notice) or a specific notice of non-qualification and hear the employee’s side.
Before lapse: Serve a final notice stating the standards, results, and decision; effectivity on or before the last day of probation. Pay all final wages and release clearances promptly.

Suggested clause (offer letter)

“You are engaged as a probationary [Job Title] for six (6) months starting on [Start Date]. Regularization is contingent upon meeting the following standards made known at engagement: [enumerate measurable KPIs/behavioral competencies]. You will be evaluated at approximately 30/60/90/150 days. Failure to meet these standards or commission of any just cause may result in termination.”

Suggested language (notice of non-qualification)

“After evaluation dated [dates] against the standards communicated to you on [date/attachments], you did not meet the following: [specific metrics/instances]. You are given the opportunity to submit your written explanation by [date/time] and to be heard on [hearing date]. If the findings stand, your probationary employment will end effective [date], which is within your probationary period.”

For employees (to protect security of tenure)

Keep copies of the offer letter, job description, and policy acknowledgments.
Ask in writing for the standards if they were not provided at hiring.
Respond to appraisals; propose a PIP; keep your own metrics.
If termination comes after the probation lapses—or standards were never shown at hiring—seek advice; you may already be regular or the dismissal may be illegal.

9) Litigation checkpoints (what decision-makers ask)

Were the standards clearly enumerated and shown at hiring?
Is there substantial evidence of failure against those standards (not vague impressions)?
Did the employer comply with its own evaluation process and due process?
Was the timing within the probation period?
Is the cited ground a pretext for an authorized cause or other illicit motive?
If procedure was imperfect but cause existed, what nominal damages are warranted?

10) Key takeaways

Probation tests suitability, it is not a license to dismiss at will.
The closer you are to the end date, the stricter the scrutiny on timing and documentation.
The employer must carry the evidentiary load; the employee should insist on clear standards and fair appraisals.
When in doubt, follow the twin-notice model and decide before the probation lapses.

This article is for general guidance on Philippine labor law as it relates to probationary termination near the end of the probation period. It does not constitute legal advice for a specific case. For a live dispute or nuanced sectoral rules (e.g., schools, BPO metrics, healthcare), consult counsel with your documents and timelines.