Probationary Period Extension?

Is it possible to lengthen the probationary period? Can it be more than six months in the Philippines? Many HR leaders still grapple with this today as workplaces evolve and labor expectations shift.

Probationary Period Extension in the Philippines, Legal?

Short answer: As a general rule, probationary employment in the Philippines cannot exceed six (6) months. However, Supreme Court rulings recognize narrow, fact-specific situations where a longer or extended probationary period is legally defensible—provided it is clearly agreed upon, well-documented, supported by valid reasons, and not used to circumvent regularization. For HR leaders, treat “beyond six months” as the exception, never the default.

Read: 6 Months Lapsed But Still No Regularization Contract

The General Rule on Probationary Employment

Article 296 of the Labor Code (formerly Article 281) limits probationary employment to six months from the start of work, unless a longer period is required under a specific law—such as valid apprenticeship programs with statutory durations. DOLE issuances, including Department Order 147-15, expect employers to make a clear decision within this period: regularize or lawfully terminate.

Additionally, the employer must communicate reasonable standards for regularization at the time of engagement. Failure to do so generally results in the employee being deemed regular from day one. For a deeper practitioner explanation, see NDV Law’s analysis.

When Is a Probationary Period Extension Possible?

First and foremost, extension of proby period should commenced on the 180th day of probationary employment

A leading case is Mariwasa Manufacturing, Inc. v. Leogardo, Jr., G.R. No. 74246 (26 January 1989), where the Supreme Court upheld a probationary period longer than six months under specific circumstances. See digest at Jur.ph or the full text via LawPhil.

Based on Mariwasa and related jurisprudence, extensions may be justified in two major scenarios:

1. Probation is tied to a longer apprenticeship period.
   When the employee is covered by a valid apprenticeship agreement that legally runs for more than six months, a longer probationary period is permissible. See Buiser v. Leogardo, Jr., G.R. No. L-63316 (31 July 1984), available at LawPhil.
2. Extension is an “ex gratia” second chance, voluntarily accepted by the employee.
   In Mariwasa, the Court viewed the extension as an act of liberality—an employer offering the worker another chance to meet performance standards. Because the extension was clear, consensual, documented, time-bound, and based on performance, the Court upheld it.

Philippine labor practitioners, such as Respicio & Co. Law Firm, emphasize that such exceptions are rare and must be supported by strong documentation—not used to delay or avoid regularization.

Practical HR Scenarios Where Probationary Period Extension May Be Considered

Extension may be appropriate when factors beyond the employee’s control prevent them from meeting the reasonable standards within the original probationary period, such as:

• Long yet legitimate leaves due to miscarriage, health issues, or required medical procedures
• Extended business disruptions (e.g., natural disasters, market downturns) that materially affect KPIs such as sales
• Sudden changes in job scope or territory outside the employee’s fault

In such cases, the extended period should be proportionate to the disruption. Open-ended or rolling extensions are more likely to be viewed as schemes to evade regularization.

Because extension is “ex gratia,” the following elements are critical:

• Clear explanation by management—not a last-minute imposition
• Written consent from the employee
• Time-bound and reasonable duration
• Proper documentation (signed request, approval memo, coaching logs)

Mini-Scenario for HR Guidance

A probationary sales employee went on a medically certified six-week leave due to miscarriage, causing her to miss mid-cycle coaching and scheduled KPI reviews. Instead of terminating or regularizing without sufficient evaluation, HR and the employee mutually agreed to a 45-day extension aligned with the missed evaluation window. The extension was documented, signed, and communicated ahead of the sixth month—making it defensible and fair.

Best Practice Before Extending Probation

Before deciding to extend probation, HR must ensure the process is fair, transparent, and legally defensible. Use this checklist:

1. The employee requests or clearly agrees in writing to the extension.
2. There are at least two documented coaching or performance feedback sessions before the original probation ends.
3. The extension is proportionate to the circumstances (e.g., length of leave, operational disruptions).
4. The decision is communicated before the last day of the original probation.
5. Regularization standards were shared at hiring and consistently applied. See our guide: six months lapsed without regularization.

Handled well, an extension can be fair and supportive—especially for high-potential hires facing unforeseen challenges. Mishandled, extensions expose companies to complaints, financial liability, and reputational risks in today’s tight labor market, where—as shown in Jobstreet’s Southeast Asia report—the Philippines continues to see high churn in both hiring and layoffs.

When Is Extension Invalid?

A cautionary example is Dusit Hotel Nikko v. Gatbonton, G.R. No. 161654 (5 May 2006). See digest via Jur.ph or LawPhil.

The Supreme Court invalidated the extension because:

• The document was created after the original probation had already lapsed
• The form suggested termination, not a genuine extension
• No valid performance assessment existed
• The referenced memo was never produced
• The employee never acknowledged the extension

In short: an extension that is not clear, consensual, timely, and documented is invalid—regularization occurs by operation of law.

Evergreen Reminder for HR and Business Leaders

Probationary employment remains one of the most litigated HR issues in the Philippines. Court interpretations evolve, and new rulings refine how doctrines like Mariwasa and Dusit apply in modern, hybrid workplaces. For case-specific situations, consult Philippine labor counsel and regularly check updated sources such as LawPhil, the Official Gazette, or Jur.ph.

Disclaimer: This article is for general information only and does not constitute legal advice. Court rulings or regulatory changes may render portions of this article inaccurate or outdated.

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