Below is one of the FAQs we are receiving:
“Can probationary period be longer than 6 months?” or “Can we extend the probationary period before the 6th month expires?”
To answer the Q, we will refer to G.R. No 74246, 26 January 1989, also known as Mariwasa Manufacturing, Inc. vs. Leogardo. In this ruling, SC maintained that probi period of more than 6 months can be allowed by law, provided:
(1) It is covered by an apprenticeship agreement stipulating a longer period (Art 282); Buiser vs. Leogardo, Jr. G.R. No. L-63316 July 31, 1984
(2) Probationary period may be extended as an act of liberality to give an employee another chance if the latter failed to meet performance expectations.
The extension of Dequila’s probation (employee) was ex gratia, an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employer’s account to compel it to keep on its payroll one who could not perform according to its work standards. The law, surely, was never meant to produce such an inequitable result.
By voluntarily agreeing to an extension of the probationary period, Dequila (employee) in effect waived any benefit attaching to the completion of said period if he still failed to make the grade during the period of extension. The Court finds nothing in the law which by any fair interpretation prohibits such a waiver. And no public policy protecting the employee and the security of his tenure is served by prescribing voluntary agreements which, by reasonably extending the period of probation, actually improve and further a probationary employee’s prospects of demonstrating his fitness for regular employment.
Extension of probationary period is not the general rule, lest it becomes a ploy to take advantage of the employee.
Extension can be considered, if factors beyond employees’ control affect his performance. An example is prolonged but valid absences, like miscarriage or forced leave due to operational exigencies. Another example is a sudden negative business or market climate brought about by man-made or natural calamity. This can have adverse effect on sales.
Likewise, since the context of the extended probationary period is “ex gratia” or consideration extended by management– the extension should be mutually agreed by both management and employee, time bound and properly documented (preferably a written request for extension coming from the employee, to be approved by management).
When is extension invalid
In a case involving Dusit Hotel (Hotel Nikko vs. Gatbonton G.R. No. 161654, 5 May 2006), the Supreme Court invalidates the extension effected by the employer.
The SC found that the employer failed to present proof that the employee was evaluated or that his probationary employment was validly extended.
In this case, the employee was hired for a 3-month probationary period, but was extended for 2 more months.
*though the period provided by law is six months, this may be shortened or extended in certain situations by agreement between the employer and the employee.
The employer claimed that the 3-month probationary employment was extended for another 2 months because the employee was not yet ready for regular employment. The employer presented, as proof, a Personnel Action Form containing the recommendation.
But SC noted that the Personnel Action Form (PAF): (1) was prepared only after the proby contract expires, and (2) the PAF was for termination and not extension of probationary employment; (3) the PAF did not contain the results of performance evaluation; (4) the PAF spoke of an attached memo explaining the terms for extension, but the memo was not presented; and (5) the PAF was not signed by the employee.