Is it possible to lengthen the probationary period? Can it be more than 6 months?
Read: 6 Months Lapsed But Still No Regularization Contract
To address this issue, we will cite G.R. No 74246, 26 January 1989, also known as Mariwasa Manufacturing, Inc. vs. Leogardo. In this decision, SC upheld that probi period of over 6 months can be permitted by law, if:
(1) It is part of an apprenticeship agreement that specifies a longer duration (Art 282); Buiser vs. Leogardo, Jr. G.R. No. L-63316 July 31, 1984
(2) The probationary period is extended as a gesture of generosity to offer an employee another opportunity if the former did not meet performance standards.
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 may be an option, if external factors hinder the employee’s performance. For instance, long but valid leaves, due to miscarriage or mandatory leave due to health issues. Another instance is a sudden downturn in the business or market situation caused by human-made or natural disaster. This can negatively affect sales.
Also, since the extended probationary period is “ex gratia” or a favor granted by management– the extension must be consensual between management and employee, time-limited and well-documented (ideally a written application for extension from the employee, to be authorized by management).
Extension of the probationary period is not common, otherwise it becomes a scheme to exploit the employee, due diligence must be exercised. The following is the best practice for extending proby employment.
- The employee applies for an extension in writing
- There are at least two documented performance feedbacks where the employee is notified of his or her failure and potential termination.
- The length of extension is proportional to the work hours missed that impacted the employee performance.
- The extension is not given on the last day of the probationary period.
When is extension invalid
In a case involving Dusit Hotel (Hotel Nikko vs. Gatbonton G.R. No. 161654, 5 May 2006), the Supreme Court nullified the extension done by the employer. The SC determined that the employer lacked evidence that the employee was assessed or that his probationary employment was legitimately extended. In this case, the employee was employed for a 3-month probationary period, but was prolonged 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 argued that the 3-month probationary employment was lengthened for another 2 months because the employee was not yet qualified for regular employment. The employer showed, as evidence, a Personnel Action Form with the recommendation.
But SC observed that the Personnel Action Form (PAF): (1) was made only after the proby contract ends, and (2) the PAF was for termination and not prolongation of probationary employment; (3) the PAF did not include the outcomes of performance assessment; (4) the PAF mentioned an attached memo clarifying the conditions for extension, but the memo was not submitted; and (5) the PAF was not endorsed by the employee.