1) What “probationary employment” means (and why it matters in termination)

Probationary employment is a trial period where an employer tests whether an employee is fit to become a regular employee, based on reasonable standards for the job. In the Philippines, a probationary employee is not “at-will.” Even during probation, termination is lawful only if it is based on:

a just cause (employee fault),
an authorized cause (business/health reasons), or
failure to meet the reasonable regularization standards that were made known at the time of engagement.

This framework is anchored on security of tenure (Constitution) and implemented through the Labor Code and the Omnibus Rules Implementing the Labor Code (Book VI on termination, among others).

2) The legal foundation: Article 296 (Probationary Employment)

Under Article 296 of the Labor Code (formerly Article 281), probationary employment has core rules that directly affect termination:

A. Maximum probationary period (general rule)

The general maximum is six (6) months from the employee’s date of engagement (typically, the first day the employee starts work).

B. The “standards must be made known” requirement

The employer must make the reasonable standards for regularization known to the employee at the time of engagement.
If the employer fails to do this, jurisprudence commonly treats the employee as regular from day one, meaning the employer loses the special “probationary failure” ground and must justify termination under just/authorized causes.

C. Automatic regularization

If the employee is allowed to work after the probationary period without a valid termination within the period, the employee generally becomes regular by operation of law.

Why this matters: Many disputes are not about whether the employee performed well, but whether the employer properly set and communicated the standards and timely documented a fair assessment.

3) The three lawful grounds to terminate a probationary employee

Ground 1: Failure to meet reasonable regularization standards (probationary-specific ground)

This is the most common probationary termination ground: the employee did not qualify as a regular employee under reasonable standards.

A. What must the employer prove?

To validly terminate on this ground, an employer typically must show all of the following:

The standards exist and are reasonable
- Standards should relate to the job and business needs (e.g., accuracy, output quality, customer handling, compliance with procedures, sales targets that are not absurdly unattainable, passing required training/probation evaluations).
The standards were made known at the time of engagement
- Best practice: written employment contract/job offer + job description + KPI/scorecard + handbook/training plan acknowledged by the employee.
- While certain “obvious” job expectations may be inherent, relying on that is risky; written proof is usually decisive.
The employee actually failed those standards
- Usually requires evaluation records, coaching notes, incident reports tied to performance metrics, training results, audit findings, or supervisor assessments that are consistent and job-related.
The employer acted in good faith, not arbitrarily
- Courts and labor tribunals look for fairness and consistency (e.g., not using probationary termination as a pretext for discrimination, retaliation, union activity, whistleblowing, or refusal to do illegal acts).

B. “Reasonable standards” — what counts (examples)

Often acceptable (if properly documented and realistic):

Performance metrics appropriate to role (accuracy, timeliness, quality scores)
Successful completion of training or certification genuinely required for the job
Meeting productivity targets that reflect normal business conditions
Professional conduct standards tied to customer-facing roles

Often attacked as unreasonable or defective (depending on facts):

Moving targets or undisclosed KPIs
Standards introduced only near the end of probation
Quotas that are impossible or not comparable to similarly situated employees
Vague criteria (“attitude,” “fit”) with no concrete behavioral anchors or documentation
Evaluations unsupported by records or inconsistent with prior feedback

C. Timing problems that often invalidate probationary termination

Termination after the probationary period has lapsed (employee already regular)
Notice served within probation but termination made effective after probation in a way that effectively treats a now-regular employee as probationary
“Resetting” probation by re-hiring or re-issuing probationary contracts for essentially the same role to avoid regularization

D. Procedural requirement (notice) for this ground

For termination due to failure to meet standards, the implementing rules generally require a written notice of termination served to the employee within a reasonable time from the effective date (and, as a matter of sound due process and risk control, before the effectivity and with a brief explanation of the deficiencies).

While the full “twin-notice + hearing” model is most strictly associated with just causes, employers still need to show that the employee was informed of the standards at engagement and was notified in writing of the decision to terminate for non-qualification.

Ground 2: Just causes (employee fault) — Article 297

A probationary employee may be terminated for the same just causes that apply to regular employees. Under Article 297 (formerly Article 282), these include:

Serious misconduct
- Misconduct that is grave and connected to work (e.g., theft, fighting at workplace, harassment, serious insubordination, falsification).
Willful disobedience / insubordination
- Must be willful and relate to a lawful and reasonable order known to the employee.
Gross and habitual neglect of duties
- Not mere mistakes; typically repeated negligence or a severe omission.
Fraud or willful breach of trust (loss of trust and confidence)
- Especially for positions of trust (cash handling, sensitive data, managerial roles). Requires substantial basis; not mere suspicion.
Commission of a crime or offense against the employer or employer’s family/representatives
- Must be connected with the employment relationship.
Analogous causes
- Causes similar in nature/seriousness to the above, recognized in jurisprudence (e.g., certain forms of gross inefficiency may qualify depending on circumstances—though for probationary employees, poor performance is more commonly framed as failure to meet standards).

Procedural due process for just cause: the “twin notice” rule

For just cause termination (even during probation), due process typically requires:

First written notice (Notice to Explain): States the specific acts/omissions complained of, the rule violated, and gives the employee a reasonable opportunity to submit an explanation (commonly observed as at least 5 calendar days in practice following DOLE guidance).
Opportunity to be heard: A hearing/conference when requested or when needed due to factual disputes, or as part of fair process.
Second written notice (Notice of Decision/Termination): States that after considering the explanation and evidence, grounds exist to terminate, and specifies the effectivity date.

Key point: Probationary status does not reduce the employer’s obligation to follow due process for just cause.

Ground 3: Authorized causes (business/health reasons) — Articles 298–299

A probationary employee can also be terminated for authorized causes, meaning reasons not primarily attributable to the employee’s fault, such as business restructuring or medical incapacity.

A. Business authorized causes (Article 298)

Common authorized causes include:

Installation of labor-saving devices
Redundancy
Retrenchment to prevent losses
Closure or cessation of business (with distinctions depending on whether due to serious losses)

Procedural requirement: Generally requires a written notice to:

the affected employee(s), and
the DOLE, typically at least 30 days before the effectivity date.

Separation pay: Often required depending on the authorized cause (with different formulas), except in certain closures due to serious business losses (subject to proof).

B. Health authorized cause (Article 299: Disease)

Termination may be valid if the employee is found to be suffering from a disease such that continued employment is prohibited or prejudicial, and the legal requirements are met (commonly including medical certification and the required notices).

4) Distinguishing “failure to meet standards” from “just cause” (why framing matters)

Employers sometimes label termination as “non-regularization” when the real issue is misconduct. Or they label it “misconduct” when the evidence is really performance-related. This can be outcome-determinative because:

Misconduct/insubordination (just cause) needs the twin-notice framework and proof of a willful, wrongful act.
Poor performance (probationary non-qualification) hinges on standards made known at engagement and documented failure to meet them, plus written termination notice.

Misclassification risk: If an employer alleges “failure to meet standards” but cannot prove the standards were properly made known at engagement, the termination may be illegal unless it independently satisfies a just/authorized cause.

5) The “standards made known at engagement” rule: practical meaning

What “made known” typically looks like (best evidence)

Job offer/employment contract explicitly stating probationary status and standards
KPI scorecard acknowledged on Day 1
Training plan + performance rubrics
Employee handbook + code of conduct acknowledgment
Written performance feedback during probation aligned with the stated criteria

Common failure points

Standards are provided only after several weeks/months
Standards are buried in documents not actually given to the employee
Standards are inconsistent with how performance is actually judged
Employer relies purely on verbal briefings without any acknowledgment trail

6) Special cases and common exceptions to the “six-month” probation rule

The six-month maximum is the general rule for ordinary private-sector employment, but some categories have distinct frameworks, often recognized by special laws/regulations/jurisprudence:

A. Private school teachers

Probationary periods for private school teachers are commonly governed by education regulations and jurisprudence (often involving a multi-year probationary track before regular/permanent status), with additional rules on standards like teaching performance, student outcomes, peer evaluations, and institutional requirements.

B. Apprentices/learners

Apprenticeship and learnership programs have their own statutory rules and agreements that may affect duration and termination standards.

C. Fixed-term/project arrangements (not probation)

Some employees are not probationary at all but are:

Project employees (employment ends upon project completion), or
Fixed-term employees (employment ends upon term expiration, if validly fixed and not used to defeat security of tenure).

Mislabeling these as “probationary” (or vice versa) is a frequent litigation issue. The real relationship is determined by the contract terms, the nature of work, and how the engagement operates in practice.

7) Consequences of an invalid termination (illegal dismissal)

When a probationary employee is dismissed without a valid ground or without meeting the required legal standards, the dismissal may be declared illegal, with typical consequences such as:

Reinstatement (to the former position or equivalent) without loss of seniority, and
Full backwages computed from dismissal until reinstatement (subject to case specifics),
Or separation pay in lieu of reinstatement in certain situations (e.g., strained relations), depending on the forum’s findings.

Procedural defects can still cost the employer

Even if a valid cause exists, failure to observe required due process can expose the employer to monetary liabilities (often framed as nominal damages in jurisprudence), depending on the nature of the defect and the ground invoked.

8) Burden of proof and evidence: who must prove what

In termination disputes, the employer generally bears the burden to prove that termination was for a valid cause and that it complied with procedural requirements.

For failure-to-meet-standards cases, employers typically need:

Proof of communicated standards at engagement (acknowledged documents)
Performance evaluations, coaching records, quality audits, KPI tracking
Consistency across evaluators and time
Written notice of termination tied to the specific standards not met

For just causes, employers typically need:

Incident reports, affidavits, CCTV logs, system logs, audit trails
Policies/rules violated and proof the employee knew them
The two notices and evidence of an opportunity to explain/hearing

9) Common unlawful practices (frequent triggers for successful claims)

No clear probationary contract / no clear standards
Standards introduced late or changed without notice
Vague “fit” reasoning unsupported by job-related documentation
Repeated probationary hiring for the same ongoing role to avoid regularization
Termination after the probationary period but justified as “non-regularization”
Retaliatory non-regularization (e.g., after a complaint, injury report, union activity)
Authorized cause used as cover without real redundancy/retrenchment/closure basis or without DOLE notice
Disease termination without the required medical certification and process

10) Compliance checklist (Philippine best-practice aligned to legal requirements)

For employers (risk-control essentials)

Written job offer/contract stating:
- probationary status
- probation duration
- clear regularization standards
Written job description + KPI rubric acknowledged at Day 1
Documented coaching/feedback and periodic evaluations
Correct legal framing: standards vs just cause vs authorized cause
Correct notices:
- Just cause: two notices + opportunity to be heard
- Authorized cause: 30-day notice to employee + DOLE, plus separation pay when required
- Failure to meet standards: written notice of termination (and strong documentation of standards + failure)

For employees (what to secure early)

Copy of job offer/contract and any KPI/scorecard/training plan
Any handbook/policy acknowledgments signed
Written feedback/evaluations received during probation
Documentation of metrics, outputs, commendations, and coaching discussions

Key takeaways

A probationary employee may be terminated only for just causes, authorized causes, or failure to meet reasonable standards made known at engagement.
The most litigated issues are: (a) whether standards were properly disclosed at hiring, (b) whether failure was proven with records, (c) whether the correct procedure and timing were followed.
Probationary status is a limited testing period—not a license to dismiss without lawful grounds and minimum due process.