The general rule is that the maximum period that an employee may be placed on probationary status is SIX (6) MONTHS or ONE HUNDRED EIGHTY (180) DAYS. Necessarily, it's allowable to place an employee on Probationary status on a shorter period. Nothing in the law states that it must be 6 months or 180 days.
Here comes the next problem, all too often, both employees and employers alike fail to understand that the 6 month period / or 180 day period is not based on working days (i.e. Monday to Saturday), or the number of days in a month (i.e. 30 or 31 days). A legal month is 30 days without regard whether there are unworked days, holidays, or restdays. The beauty of the law is the interplay of provisions. Case in point, where do we get the concept of this 6 month probationary period?
Labor Code of the Philippines, amended:
Art. 296 (formerly 281) Probationary Employment - Probationary employment shall not exceed six (6) months from the date the employee started working xxx xxx xxx
The law does not state that the 6 month period excludes holidays, non-work days such as restdays, Sunday, Saturday, or Holidays. In such as case, we read it as is, 6 months includes the days that are unworked.
The next problem is, what is a month under the law, considering that there are months that have 30 or 31 days?
The New Civil Code of the Philippines, provides:
ARTICLE 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise.
So, in counting the 6 month probationary period, based on the aforementioned laws, a month has 30 days, hence, 6 months shall be 180 days without regard to days that are unworked.
I'll give an example, say you started working on August 15, 2020, when would your last day on your Probationary Employment status be? If you give me an answer that your last day as a Probationary Employee is February 23, 2021 since you excluded Saturdays and Sundays, then you are wrong.
We always include Saturdays, Sundays, holidays, and days unworked in counting the period. Hence, the proper end date of your Probationary Employment Status shall be February 11, 2021 - a full 180 days.
If you are an employer, given the above example, you had just illegally dismissed your employee on February 23, 2021 since he has automatically attained Permanent Employee Status on February 12, 2021 or on the 181st day.
It's a very common mistake, and a very costly common mistake too, especially if the ground used in dismissing the employee would be "failure to comply with the standards of regularization", since by then, by operation of law, that employee has attained permanent status. No matter how much you argue that the employee failed in complying with the standards, that's only applicable if you terminated him before within the 6month/180 day period and not after.
Speaking of qualifying for regularization, the two most important things would be that the Standards for qualifying as a permanent employee have been made known to the employee at the time of engagement and the period in which he is placed on probationary employment status (i.e. 6 months max/180 days) This simply means that the standards may be embodied in the employment agreement or in a separate sheet attached to the employment agreement, and communicated and made known to the employee and the period in which he shall be probationary employee, otherwise, from day one, he is a permanent/regular employee.
The Supreme Court has time and again emphasized this very important matter, that: (1) the employer must communicate the regularization standards to the probationary employee; and (2) the employer must make such communication at the time of the probationary employee's engagement. If the employer fails to abide by any of the aforementioned obligations, the employee is deemed as a regular, and not a probationary employee. An employer is deemed to have made known the regularization standards when it has exerted reasonable efforts to apprise the employee of what he or she is expected to do or accomplish during the trial period of probation. The exception to the foregoing is when the job is self-descriptive in nature, such as in the case of maids, cooks, drivers, and messengers.
To be sure, the following things are to remembered in dealing with Probationary Employees:
- Always keep in mind that the Probationary Period ends on the 180th day from the time the employee started working; the day after, if you allow or suffer him to work, he has attained Permanent and Regular Status;
- The 6month/180 day period includes days unworked, holidays, restdays, Saturdays and Sundays. Include those days in counting the period.
- Communicate the Standards for qualifying as a Regular Employee either in the employment contract or on a separate sheet made known to him;
If you fail to communicate #3 to the employee, he is deemed a Permanent/Regular Employee from day 1; If you do not include days unworked, holidays, rest days, Saturdays and Sundays in computing the period, the time you terminate the employee, he may have attained regular status.
But during this pandemic, how do we treat Probationary Employees and what is the significance of Community Quarantine on the probationary period? That will be the subject of another blogpost. Likewise, how do we properly terminate a Probationary Employee? That will also be the subject of another blogpost.
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