I. Overview
In the Philippines, the transition of an employee from probationary to regular (or permanent) status is governed by the Labor Code of the Philippines, relevant Department of Labor and Employment (DOLE) issuances, and extensive jurisprudence. The law provides a delicate balance between the employer’s right to select and evaluate workers and the employee’s right to security of tenure.
A probationary period serves as a testing ground to determine an employee’s fitness for regular employment. However, employers must comply strictly with the conditions prescribed by law to avoid illegal dismissal and automatic regularization.
II. Legal Basis
1. Article 296 [formerly Article 281] of the Labor Code
“The probationary employment of an employee shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period.”
This provision sets the maximum probationary period at six months, unless a longer period is justified under special arrangements such as apprenticeship.
2. Security of Tenure
The Constitution (Article XIII, Section 3) guarantees that:
“The State shall afford full protection to labor… and shall assure the rights of workers to security of tenure.”
Hence, even during probation, employees enjoy protection from arbitrary dismissal.
III. Essential Requirements for Valid Probationary Employment
For a probationary contract to be valid and enforceable, three requisites must concur:
Reasonable period – The probationary period must not exceed six months from the start of employment, except when a longer period is allowed by law (e.g., apprenticeship or project-based employment requiring extensive training).
Communication of standards – At the start of employment, the employer must inform the employee of the reasonable standards for regularization. Failure to do so results in automatic regularization from day one.
- Case Example: In Abbott Laboratories vs. Alcaraz (G.R. No. 192571, July 23, 2013), the Supreme Court held that an employee becomes regular if the employer fails to communicate the evaluation standards at the beginning of probation.
Fair and lawful termination – The dismissal of a probationary employee before the end of the period must be based on just cause or failure to meet the reasonable standards made known at the time of hiring, with due process observed.
IV. When Does a Probationary Employee Become Regular?
A probationary employee becomes regular in any of the following circumstances:
1. Upon Completion of Six Months of Continuous Service
If the employee continues to work beyond the six-month probationary period without being formally terminated or reclassified, the law deems the employment regular by operation of law. This principle was upheld in numerous cases, such as Regular vs. NLRC and Caramol vs. NLRC.
2. When the Employee Meets the Reasonable Standards
If the employee satisfactorily meets the employer’s performance standards within the probationary period, they become regular even before the six-month period ends, especially if the employer expressly confirms it.
3. When Standards Were Not Communicated
If the employer fails to inform the probationary employee of the standards for evaluation at the time of engagement, the employee is deemed regular from the start of employment. This is one of the most common bases for disputes in labor cases.
4. When Continued Employment is Allowed Beyond the Probationary Period
Even without explicit confirmation, if the employer allows the employee to continue working beyond the probationary period, this implies automatic regularization. Silence or inaction by the employer is treated as consent to regular status.
V. Exceptions: When the Probationary Period May Exceed Six Months
While six months is the general rule, the law recognizes exceptions in cases where the nature of the work requires a longer evaluation period:
- Apprenticeship programs approved by DOLE.
- Project-based or seasonal employment, where duration depends on project completion.
- Positions subject to evaluation under collective bargaining agreements (CBA), provided the period is reasonable.
However, mere designation or job complexity cannot justify an extension without proper legal basis.
VI. Termination During Probation
An employer may terminate a probationary employee for either of the following causes:
- Just causes under Article 297 of the Labor Code (e.g., serious misconduct, willful disobedience, fraud, etc.).
- Authorized causes under Article 298 (e.g., redundancy, retrenchment, closure).
- Failure to meet reasonable standards previously communicated at the time of hiring.
Nevertheless, due process must be observed—typically a notice and opportunity to be heard—even for probationary employees.
VII. Jurisprudence Highlights
Alcaraz v. Abbott Laboratories (G.R. No. 192571, 2013) – Failure to communicate standards at the start of employment results in automatic regularization.
Tamson’s Enterprises v. Court of Appeals (G.R. No. 192881, 2013) – The six-month probationary limit applies regardless of the employer’s internal policies; any extension beyond that without legal basis is void.
Mariwasa Manufacturing, Inc. v. Leogardo (G.R. No. L-39861, 1984) – Continuance in service after the probationary period without notice of non-regularization converts employment to regular status.
VIII. Rights of a Regularized Employee
Upon becoming regular, an employee is entitled to the full protection of security of tenure, meaning they can only be dismissed for just or authorized causes and with due process. Other rights include:
- Full benefits under company policies and the Labor Code.
- Inclusion in social protection programs (SSS, PhilHealth, Pag-IBIG).
- Entitlement to due notice and separation pay, if applicable.
IX. Summary Table
| Condition | Result |
|---|---|
| Standards communicated, six months completed, employee meets standards | Becomes regular |
| Standards not communicated at hiring | Regular from day one |
| Employment continues beyond six months | Regular by operation of law |
| Terminated before six months for just cause or failure to meet standards | Valid termination if due process observed |
X. Conclusion
In the Philippine labor system, probationary employment is designed not to weaken security of tenure but to allow fair evaluation. Employers must clearly define and communicate expectations, while employees must demonstrate competence within the evaluation period. Once the six-month threshold passes without lawful termination or failure to meet valid standards, the employee automatically attains regular status by operation of law.
The overarching principle remains clear: the law favors the worker’s right to security of tenure and strictly construes any ambiguity against the employer.