The probationary period in the Philippines is often misunderstood—even among HR practitioners. While the Labor Code says “six months,” some employers count by calendar months while others strictly apply 180 days. This difference can lead to illegal dismissal risks, wrongful regularization, or disputes that could have been avoided with proper interpretation.
Counting the Probationary Period: 6 Months or 180 Days?
In most cases, regularization should be straightforward: the employee completes the probationary period, meets standards, and transitions to regular status. But when HR miscalculates the probationary period, the company may unintentionally expose itself to legal risk.
What the Labor Code Says
Article 296 (formerly Article 281) of the Labor Code states that probationary employment “shall not exceed six (6) months from the date the employee started working,” unless it is covered by an apprenticeship agreement.
The law is clear on when probation starts—the employee’s first working day. But determining when it ends is where differing interpretations arise.
- Some treat the sixth-month employment anniversary as the start of regular employment.
- Others interpret “six months” strictly as 180 days.
Which Interpretation Is Correct?
To determine the correct computation, we look at the Civil Code, the Revised Administrative Code (EO 292), and Supreme Court jurisprudence.
Article 13 of the Civil Code
When laws speak of months, they shall be understood as thirty (30) days unless they refer to specific calendar months. In computing a period, the first day is excluded and the last day included.
Executive Order 292 (Administrative Code of 1987)
“Year” shall be understood to be twelve calendar months; “month” of thirty days, unless referring to a specific calendar month; “day” as a period of 24 hours; and “night” from sunset to sunrise.
This reinforces the interpretation that unless a law specifies calendar months by name, a “month” is counted as 30 days.
Thus:
6 months = 180 days.
Supreme Court Ruling: Mitsubishi Motors vs. Chrysler Union (G.R. 148738)
In this 2004 case, the employee began probation on May 27, 1996 and was dismissed on November 26, 1996. The employee argued he had already served 183 days, exceeding the six-month period.
The Supreme Court held:
- Six months = 180 days
- The first day is excluded; the last day included
- The 180th day fell on November 23, 1996
The Court ruled the employee was already regular at the time of termination. This remains the most defensible legal basis today.
Implications for Employers
- State the exact probationary period and regularization date in the contract.
- Use the 180-day count—not calendar months—for consistency and compliance.
- Document coaching and evaluations throughout the probationary period.
- Issue regularization or non-regularization decisions before the 180th day.
Final Thoughts
To avoid disputes and legal exposure, the safest and most compliant approach is to use the 180-day interpretation. Clear, precise probationary terms protect both the organization and the employee.
ASK Framework Application
Align: Clarify probationary terms in the employment contract and employee onboarding materials to avoid misinterpretation.
Strengthen: Build a consistent evaluation and coaching system across all departments to ensure fair assessment during the 180-day period.
Kickstart: Empower managers with simple tools and templates to document performance checkpoints and communicate decisions before probation ends.
Frequently Asked Questions
Is the 180-day interpretation mandatory?
No law explicitly says “180 days,” but jurisprudence and EO 292 establish 30-day months unless the law specifies calendar months. The 180-day interpretation is the safest and most defensible.
Can probationary employment exceed six months?
Only if covered by a valid apprenticeship program that legally allows a longer period.
What happens if the employer fails to notify the employee before day 180?
The employee may be deemed a regular employee by operation of law.
Should the contract state the exact regularization date?
Yes. This avoids ambiguity and strengthens HR compliance.
ASK Takeaway — Applying the ASK Framework to Probationary Employment Compliance:
- Align HR policies, contracts, and onboarding materials so probationary terms are clear, consistent, and legally compliant.
- Strengthen evaluation systems, manager capabilities, and documentation practices to ensure fair and timely assessments within the 180-day window.
- Kickstart a culture of accountability by empowering leaders to communicate expectations early and make decisions before the probation period lapses.
Explore more leadership and governance insights at our cornerstone page:
ASK Framework: Align • Strengthen • Kickstart
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