• Probationary period shall not exceed six months

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I got a job offer from a company. I already discussed the terms and conditions of the contract with their hiring officer and am inclined to accept their offer, but there is one provision in the contract that bothers me. It states that the probationary period is eight months. This is not the usual six-month period. May I know your legal opinion concerning this longer period of probation?
    Laarnie

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    Dear Laarnie,
    The Labor Code states that “probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period” (Art. 281, Labor Code). Further, an employee who is allowed to work after the probationary period shall be considered a regular employee. Hence, the general rule is probationary employment is limited to six months. After the said period and the concerned employee is allowed to continue working for the company, he or she becomes a regular employee of the company.

    But there are exceptions to this rule. One exception, which is specifically provided by the Labor Code, is when the probationary employment is covered by an apprenticeship agreement stipulating a longer period. This refers to situations where the work for which an employee has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the Department of Labor (Book VI, Sec. 6, Omnibus Rules Implementing the Labor Code).

    Another exception to the six-month probationary period may be deduced from the decision of the Supreme Court in the case of Buiser vs. Leogardo, J., where the High Court upheld the validity of an employment contract executed by the employer and the employee which provides for an 18-month probationary period. In said case, the Supreme Court categorically declared that the employer and employee may agree on a longer probationary period, such as when the same is established by company policy or when the same is required by the nature of work to be performed by the employee. In the latter case, there is recognition of the exercise of managerial prerogatives especially where the employee must learn a particular kind of work or when the job requires certain qualifications, skills, experience or training (131 SCRA 151).

    From the foregoing, it is clear that probationary period of employment may extend beyond the legally mandated six-month period by agreement of the employer and the employee. Yet, it must be proved that it is established by company policy or required by the nature of the work. In the Buiser case, for example, the Supreme Court justified the 18-month probationary period by the fact that the company can only evaluate the efficiency, conduct, and selling ability of its sales representatives upon publication of the solicited ads which will occur only a year after the sale has been made, and that such period is provided in the collective bargaining agreement of the company and the employee’s union.

    We hope we were able to sufficiently address your concern. Bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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    2 Comments

    1. A probationary employee allowed to work beyond the probationary period set forth by law which is not longer than 6 months becomes a regular employee. Thus, an employer is bound to recognize said probationary employee as regular employee.

    2. This is in connection with Employee Probationary Period, what are the sanctions against employers if they prolong probationary period beyond 6 months of one employee. What case or complaint should be filed and where will it be filed?

      Thanks