I. The Nature and Purpose of Probationary Employment

Probationary employment is a recognized employment status intended to give an employer a reasonable period to observe and evaluate whether a worker is fit for regularization. It is not a “trial period without rights.” A probationary employee is an employee under the law: entitled to statutory labor standards (wages, hours, benefits mandated by law), safe working conditions, and the constitutional and statutory protections of security of tenure—though the standard for ending the relationship differs from that of a regular employee.

A. Key Features

Time-bounded: As a general rule, probationary employment cannot exceed six (6) months from the date the employee started working, unless a longer period is allowed by applicable rules (e.g., certain apprenticeships/learnerships or roles governed by special standards) or by specific, valid exceptions recognized in law and jurisprudence.
Conditional regularization: The default is regularization upon completion of the probationary period if the employee meets the reasonable standards made known at engagement, or if the employer fails to properly establish and communicate such standards.
Distinct grounds for termination: A probationary employee may be terminated for:
- (a) Just causes (serious misconduct, willful disobedience, gross and habitual neglect, fraud/breach of trust, commission of a crime, analogous causes), or
- (b) Failure to qualify as a regular employee in accordance with reasonable standards made known at the time of engagement, or within a reasonable time from engagement when the nature of work makes immediate specification impracticable.

II. The Two Legal Frameworks for Terminating Probationary Employees

It is critical to classify the termination correctly, because the ground and the due process requirements differ.

Framework 1: Termination for Just Cause (Disciplinary Termination)

This is the same substantive category used for regular employees: misconduct, insubordination, neglect, fraud, etc. The employer is alleging blameworthy acts or omissions.

Substance: Employer must prove the just cause by substantial evidence. Procedure: Employer must comply with the two-notice rule and an opportunity to be heard.

Framework 2: Termination for Failure to Meet Probationary Standards (Qualification Termination)

This is unique to probationary employment. The employee is being separated because they did not meet performance/behavioral standards that define fitness for regularization.

Substance: Employer must show:

The standards were reasonable;
The standards were made known to the employee at engagement (or within a reasonable time, depending on role);
The employee failed to meet them; and
The decision was not arbitrary, discriminatory, or pretextual.

Procedure: The law requires notice to the employee; practice and jurisprudence often expect a real opportunity to respond, especially when the alleged deficiency is disputed or when the “failure to qualify” is entangled with accusations akin to misconduct.

III. Substantive Standards: What Makes Termination Valid

A. Reasonable Standards Must Be Communicated

A probationary employee can be validly terminated for failing to qualify only if the employer has pre-established, reasonable standards and these were made known at the time of hiring.

What counts as “made known”

Written employment contract clearly stating standards;
Company handbook or policy manual acknowledged in writing;
Job description with measurable expectations and evaluation metrics;
Performance scorecards/KPIs and how they will be assessed;
Training program requirements and passing criteria (where applicable).

Common problem areas

Vague standards (“must be satisfactory,” “must be efficient,” “must fit culture”) without objective anchors;
Standards introduced only at the end of probation;
Standards not provided to the employee despite being in an internal document;
Standards that are inconsistent with the job, impossible to meet, or selectively enforced.

Legal effect of failure to communicate standards If an employer cannot show the standards were made known, termination for “failure to qualify” is vulnerable to being treated as illegal dismissal, and the employee may be deemed effectively regular (or at least protected from arbitrary non-regularization).

B. The Evaluation Must Be in Good Faith and Supported by Evidence

Employers must show that the employee’s failure was real and supported by substantial evidence, such as:

Documented performance evaluations during the probationary period;
Coaching records, written feedback, performance improvement plans (PIPs);
Sales/production reports tied to the employee’s scope;
Quality audit results;
Customer complaint records, incident reports (when relevant);
Training assessments, exams, observation checklists.

Red flags indicating bad faith/pretext

No contemporaneous records, only a last-minute termination memo;
Sudden low rating contrary to prior praise without explanation;
Different yardstick applied to similarly situated probationary employees;
Termination shortly after protected activity (complaining of labor standards violations, filing a grievance, pregnancy disclosure, union activity);
“Failure to qualify” used to mask a disciplinary charge without observing disciplinary due process.

C. Timing Rules: Termination Must Occur Within the Probationary Period

To terminate based on failure to qualify as a probationary employee, the employer should act before the probation ends. If the employee continues working beyond the probation period without a valid extension recognized by law, the employee may be considered regular by operation of law, and termination thereafter must comply with standards applicable to regular employees.

D. Interaction With Fixed-Term Clauses

Probationary employment is different from fixed-term employment. Labels do not control; the law looks at the nature of work and the real arrangement. A contract that calls someone “probationary” but sets a short term does not automatically remove the probationary framework if the work is necessary or desirable to the business and the employee is actually on a path to regularization.

IV. Procedural Due Process: What Must Be Done Before Termination

A. For Just Cause: Two-Notice Rule + Opportunity to Be Heard

First notice (Notice to Explain/Charge Sheet)
- States the acts/omissions complained of;
- Specifies the company rule violated (if applicable);
- Gives the employee reasonable time to submit a written explanation.
Opportunity to be heard
- May be a hearing or conference, especially when factual issues are contested;
- The employee can clarify, present evidence, and respond to management’s claims.
Second notice (Notice of Decision/Termination)
- States that, after considering the explanation and evidence, the employer finds just cause;
- Specifies the grounds and effective date.

Notes

Employers sometimes skip hearings, claiming they are optional. While not every case demands a formal trial-type hearing, the employee must be given a genuine chance to respond, especially when the allegations are disputed.
If the employer frames deficiencies as “misconduct” but uses “failure to qualify” procedures (or vice versa), the mismatch can be fatal.

B. For Failure to Meet Standards: Notice + Fair Opportunity to Respond (Best Practice and Risk Control)

At minimum, there should be:

Notice of evaluation results and deficiencies (ideally before the final day), and
Notice of termination stating failure to meet communicated standards.

In practice, because disputes often involve facts and the credibility of evaluations, a prudent process includes:

Periodic performance feedback and written documentation;
A meeting or conference allowing the employee to comment on evaluations;
A final written notice explaining the standards, how the employee was assessed, and what results showed failure.

Why this matters Even if the termination is substantively justified, poor process increases litigation risk and can result in liability (e.g., nominal damages in some cases involving procedural violations, depending on how the case is characterized).

V. Special Topics and Edge Cases

A. Extensions of Probation

As a general rule, probation is capped at six months. Extensions are risky unless grounded on legally recognized bases. Parties cannot simply “agree” to indefinite or repeated extensions to defeat regularization. When probation is extended due to legitimate reasons (e.g., employee’s request for additional time to qualify, or disruption that prevents evaluation), the extension must be:

Clearly documented,
Reasonable,
Not used as a tool to circumvent security of tenure.

B. Probationary Employees and “Authorized Causes”

Authorized causes (redundancy, retrenchment, closure, disease, installation of labor-saving devices) are grounds that do not depend on employee fault. These can apply even to probationary employees if the factual and procedural requirements for the authorized cause are met (notably, required notices and, where applicable, separation pay). Employers should not mislabel an authorized cause as “failure to qualify.”

C. Discrimination and Retaliation

Termination—even within probation—cannot be:

Discriminatory (e.g., based on sex, pregnancy, marital status, religion, disability, etc.),
Retaliatory (e.g., because the employee asserted rights),
A subterfuge for union-busting.

Probationary status does not legalize prohibited motives.

D. Managerial/Confidential Positions

For roles requiring trust and confidence, employers often cite suitability concerns. Still, standards must be reasonable and made known, and evidence must support the assessment. “Loss of confidence” is typically a just-cause framework and must be supported by clearly established facts; using it loosely for probationary termination can invite scrutiny.

E. “Company Fit,” Attitude, and Behavioral Standards

Behavioral expectations can be legitimate standards if:

Defined in concrete, job-related terms (e.g., punctuality, compliance with reporting protocols, teamwork behaviors tied to operations),
Consistently applied,
Documented with incidents and coaching records rather than conclusory labels.

F. Training, Exams, and Certification Requirements

If passing a training module or certification exam is a condition for regularization, it should be:

Clearly stated at hiring,
Administered fairly,
Supported by records (scores, rubrics, retake rules).

VI. Burden of Proof and Evidence in Disputes

In termination disputes, employers generally carry the burden to prove that dismissal was for a valid cause and that due process was observed.

A. Typical Employee Claims

No communicated standards; termination arbitrary;
Evaluations fabricated or biased;
Real reason was retaliation/discrimination;
Due process violated (no notice, no chance to respond);
Probation already lapsed; employee became regular.

B. Typical Employer Defenses

Standards were in contract/handbook, acknowledged by employee;
Performance metrics and reviews show failure to qualify;
Termination occurred within probation;
If just cause, notices and hearing were provided.

C. What Decision-Makers Look For

Paper trail created during employment (not after);
Consistency: same standards, same scoring, same expectations for comparators;
Proportionality: if framed as misconduct, sanctions align with rules;
Credibility: contemporaneous records outweigh afterthought affidavits.

VII. Remedies When Termination Is Illegal

When a probationary employee is illegally dismissed, remedies depend on the finding and the posture of the case, but the major remedies in Philippine labor law typically include:

A. Reinstatement and Backwages

If dismissal is illegal, reinstatement to the former position without loss of seniority rights and payment of full backwages are the default remedies in many cases. In practice:

Reinstatement may be actual or payroll reinstatement depending on adjudicative orders and circumstances.
Backwages generally cover the period from dismissal until actual reinstatement or finality of decision (depending on the specific order and case developments).

B. Separation Pay in Lieu of Reinstatement

When reinstatement is no longer feasible due to strained relations, closure, or other reasons recognized by adjudicators, separation pay may be awarded instead of reinstatement, alongside backwages as applicable.

C. Damages and Attorney’s Fees

Moral and exemplary damages may be awarded in cases involving bad faith, oppressive conduct, or where the manner of dismissal is harsh and injurious beyond mere illegality.
Attorney’s fees may be awarded when the employee was compelled to litigate to protect rights.

D. Procedural Due Process Violations (When Cause Exists but Procedure Is Defective)

Where a valid cause exists but due process requirements were not followed (most often relevant in just-cause terminations), adjudicators may award monetary consequences tied to the procedural lapse. The exact treatment depends on the classification and the controlling doctrines applied in the case.

VIII. Practical Compliance Blueprint (Employer-Side) Without Sacrificing Fairness

A. At Hiring (Day 1)

Employment contract explicitly stating probationary status and length;
Attach/identify the reasonable standards for regularization:
- KPIs/metrics,
- behavioral expectations,
- training and assessment criteria,
- attendance and punctuality rules.
Secure written acknowledgment of receipt of handbook/policies.

B. During Probation (Weeks 1–24)

Provide onboarding and job-specific training;
Set documented performance check-ins (e.g., 30/60/90 days);
Keep objective records: outputs, errors, coaching sessions;
Address issues early with written feedback.

C. Before Termination for Failure to Qualify

Ensure the decision is within the probationary period;
Prepare a performance summary mapping standards to evidence;
Conduct a feedback conference and allow written comments when feasible;
Issue written notice citing specific standards and results.

D. If Misconduct Is Involved

Decide honestly whether it is a just cause case (disciplinary) or a qualification case (fitness for regularization).
If disciplinary, follow the two-notice rule strictly.

IX. Practical Guidance for Employees Assessing Their Situation

A. Ask: What Is the Employer’s Stated Ground?

“Failed to meet standards” suggests a qualification termination.
“Misconduct/insubordination/neglect” suggests a just-cause termination requiring two notices and an opportunity to be heard.

B. Check if Standards Were Communicated

Contract terms, job description, handbook acknowledgments;
Emails/messages explaining KPIs and evaluation rubrics;
Training materials and assessment criteria.

C. Look for Contemporaneous Feedback

Were deficiencies raised early and documented?
Did the employer provide measurable bases for poor performance?
Were standards applied consistently among probationary peers?

D. Confirm Timing

What is the start date?
When did the employer issue the termination notice?
Were you allowed to work beyond six months (or beyond the agreed valid probation period)?

X. Common Litigation Scenarios and How Outcomes Often Turn

No communicated standards + generic “unsatisfactory” termination Often vulnerable; employer struggles to prove valid probationary ground.
Communicated KPIs + periodic evaluations + documented coaching Stronger employer position if termination is within probation and evaluation is credible.
Employer uses “failure to qualify” but the real allegation is misconduct (theft, fraud, insubordination) High risk if disciplinary due process was skipped.
Probation lapsed, employee continued working, then terminated as “probationary” Strong employee argument for regular status and stricter protections.
Termination shortly after complaint/union activity/pregnancy disclosure Elevated scrutiny; motive becomes central.

XI. Drafting and Documentation Essentials

A. Standards Clause (Illustrative Components)

Role-specific success metrics (quantitative where feasible);
Quality standards and error thresholds;
Behavioral standards tied to job functions;
Attendance/punctuality expectations;
Training and certification requirements;
Evaluation schedule and tools.

B. Termination Notice for Failure to Qualify (Core Contents)

Statement of probationary status and start date;
Specific standards previously communicated (cite document and acknowledgment);
Specific evaluation period(s) and results;
Concrete examples of deficiencies supported by records;
Effective date of termination within probationary period.

C. Termination Notice for Just Cause

Acts/omissions with dates and particulars;
Rule/policy violated;
Summary of employee explanation and why it was not accepted;
Finding of just cause and effectivity.

XII. Bottom Line Principles

Probationary employees are protected employees; probation is an evaluation period, not a waiver of rights.
Termination must be anchored on either just cause (with disciplinary due process) or failure to meet reasonable, communicated standards (with fair notice and evidence-based evaluation).
Communication of standards and contemporaneous documentation are the center of gravity in probationary termination disputes.
When termination is illegal, remedies can include reinstatement, backwages, separation pay in lieu of reinstatement, and damages/attorney’s fees depending on the findings and circumstances.