Service contracts of probationary employees

Dear PAO,
I worked for an IT firm. During the time I was interviewed, I was told by the Human Resources (HR) Representative that I will be hired as a probationary employee and they will hire me as a regular employee after the probationary period. So, I signed the contract and worked with this firm. But two weeks before my sixth month in the firm, I was given a memorandum stating that the firm will not hire me as a regular employee. I was really shocked but because I had no other option, I left the company after my probation. I just want to know if what they did was correct. Do I have any recourse under our law? I hope you can enlighten me.
Travis

Dear Travis,

Parties to an employment contract are not only bound by the provisions of their agreement but are also governed by the provisions of pertinent laws. In your case, you had a contract of probationary employment with the firm you used to work with.

Since you did not mention the exact period for which your probationary employment lasted, we will assume that it has complied with the provisions of the Labor Code, that is, your period of probationary employment did not exceed six months from the date when you were hired. As a rule, the company cannot terminate your services within the six-month period because you have a security of tenure during that period.

Nevertheless, a probationary employee like yourself may be terminated during said period or not be regularized. As provided for under Article 281 of the Labor Code of the Philippines, “x x x The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. x x x”
Hence, the validity of the termination or nonregularization of a probationary employee rests on the reason or basis thereof and as to the procedure it was made.

In your letter, you only mentioned that you were given a memorandum two weeks before your probationary employment expired, which stated that you will not be hired as a regular employee, but you did not mention the basis for your nonregularization.

If the company did not hire you as a regular employee despite the fact that you qualified as such based on their standards, then it is erroneous on their part to dismiss you and not hire you for regular employment.

Consequently, you can file a complaint before the National Labor Relations Commission (NLRC). However, it is necessary for you to prove with certainty that you had an excellent work performance during the probationary period or at least that your performance is well within the firm’s standards.

On the other hand if based on the company’s records, you failed to qualify with their standards, the company may not be forced to hire you as a regular employee. But we would like to stress that the following principles must be followed: (1) your termination must be in accord with the requirements of your contract; (2) the dissatisfaction of the company is real and in good faith, not feigned to circumvent the law or contract; and (3) there is no unlawful discrimination. (Sameer Overseas Placement Agency, 317 SCRA 120)

Accordingly, the firm will not be bound to hire you for regular employment if you fall short with their standards. We also need to recognize the right of companies to maintain an adequate degree of work ethics and employee performance so that they can also provide good quality products and services.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated. –Persida Acosta, Manila Times

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