“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) The 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 the probationary period is not the general rule, lest it becomes a ploy to take advantage of the employee.
Read: Ending Probationary Employment w/o Termination Notice
Read: 6 Months Lapsed But Still No Regularization Contract
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.
Hello po Sir! I hope you could help me clear this out po. I was hired originally as a project-based worker. Eventually, I signed a new contract for me to be a probationary employee. Nov 4, 2021 to May 4, 2022 po ang 6-month probationary period ko. Now, I submitted a resignation letter on April 5, 2022 and since 45-day render ang nasa contract ko, ang effective end date ko is May 20, 2022. I asked politely if I could instead render 30-days rather than the originial 45-day render. My supervisor notified me that I was about to be evaluated… Read more »
Go check the exit clause in your contract. If there is no provision for the ending of the probationary contract from your end, then I would suppose you need to honor the 45 days rendering period.
Hi Sir. I hope you could shed some light on my queries regarding probationary period. I started with my bpo company on Feb 22, 2021. After 3 weeks of product training, I was supposed to do my responsibility as an agent and that’s to take calls however my logins and tools are not working. Since it isn’t my fault that I can’t perform my duties, they still put me in training till they get fixed my tools and logins. So I was still reporting to work and still get paid. However in July, I found out that I have health… Read more »
If your work performance is something that they will miss, extending your proby commensurate to the days you were absent is not only the most logical thing to do, but fair as well.
Automatic regularization is unlikely to happen but non-regularization albeit can be questioned, but still possible
Hi Sir Sonnie, is it normal po ba to extend my probi period without a written agreement? I’m a company nurse in a BPO company. I started on April 12, 2021, I have absences due to 14 days quarantine and got accident last July that took me 30 days absence to work. During my absences, I have a reliever. They were informed because I submitted my med cert and filed SSS sickness. Now, my 180 days have lapsed on Oct 9, 2021, but no advice of regularization. I was advised thru verbal by the HR officer that my probationary period… Read more »
they are in a position to extend your proby to cover for your 30-day absences, but it should be documented.