Sans the factors that can lead to a failure of probationary employment, regularization process is fairly easy, right? Well, on a problematic situation, an erroneous counting of probationary period can spell trouble for the company.
ART. 281 of PH labor code says Probationary employment 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.
From above, it’s quite clear when proby period starts, but as to when this period ends, this is where the confusion and controversy lies.
- One interpretation believed the 6th month employment anniversary as the last day of probationary employment.
- Another interpretation is 180 days.
Read: Can We Extend The Probationary Period Beyond 6 Months? Read: Ending Probationary Period w/o Termination Notice Read: 6 Months Lapsed But Still No Regularization Contract
So what should be the right interpretation?
Let’s look at the Civil Code, Executive Order 292 and GR # 148738 to find answers.
Article 13 of the Civil Code and EO 292 (Revised Administrative Code of 1987) Sec. 31
Art. 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. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included.
But this was repealed by Sec. 31 of EO 292. The “year” is now defined as 12 months, rather than 365 days.
“Year” shall be understood to be twelve calendar months;”month” of thirty days, unless it refers to a specific calendar month in which case it shall be computed according to the number of days the specific month contains; “day,” to a day of twenty-four hours; and “night,” from sunset to sunrise
Mitsubishi Motors Phils. Corp. vs. Chrysler Phil. Labor Union et. al., G.R. No. 148738, June 29, 2004.
Employee was under proby employment w/c started on May 27, 1996. He was terminated on Nov. 26, 1996. Employee claimed he was illegally dismissed bec. it was served on his 183rd day of employment, or three days after the end of his probationary period of six months.SC ruled that the probationary period of months is equal to 180 days. In computing a period, the first day shall be excluded and the last day included. With that, the SC concluded that the 180 days started on May 27, 1996 and ended on Nov. 23, 1996. And employee was already a regular employee at the time of his dismissal.
Since this appears to be the latest jurisprudence, this can serve as guide.
In consideration of the above bases, it’s wise for HR to use the 180 day interpretation of probationary period