The law of PROBATIONARY employment

Generally, the probationary period of employment is limited to six (6) months. The exception to this general rule is when the parties to an employment contract may agree otherwise, such as when the same is established by company policy or when the same is required by the nature of work to be performed by the employee. In the latter case, there is recognition of the exercise of managerial prerogatives in requiring a longer period of probationary employment, such as in the present case where the probationary period was set for eighteen (18) months, i.e. from May, 1980 to October, 1981 inclusive, especially where the employee must learn a particular kind of work such as selling, or when the job requires certain qualifications, skills, experience or training. (G.R. No. L-63316)

The provision of Art. 280 that "probationary employment shall not exceed six (6) months" means that the probationary employee may be dismissed for cause at any time before the expiration of six (6) months after hiring. If after working for less than six (6) months, he is found to be unfit for the job, he can be dismissed. But if he continues to be employed longer than six (6) months, he ceases to be a probationary employee and becomes a regular or permanent employee. (G.R. No. 83751)

Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee." (G.R. Nos. 86214-15)

Articles 280 and 281 of our Labor Code, supra, put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum. Thus, Article 281, supra, placed a ceiling on probationary employment, i.e., not to exceed six (6) months from the date the employee started working. On the other hand, Article 280, supra, defined when an employment shall be regular notwithstanding any written agreement to the contrary. In other words, the graduation of an employee from casual or probationary to regular does not depend on the arbitrary will of his employer.(G.R. No. 106246)

While it is true that the decision to dismiss or lay off an employee is management's prerogative, it must be made without abuse of discretion, for what is at stake is not only the employee's position but also his means of livelihood. Therefore, he should be protected against any arbitrary deprivation of his job. At any rate, where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the law's concern for the workingmen. There is, in addition, his family to consider. Unemployment brings about hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant to the loss of jobs then could be avoided if there be acceptance of the view that under all circumstances of a case the workers should not be deprived of their means of livelihood. (G.R. No. 111934)

Reinstatement means restoration to a state or condition from which one had been removed or separated. In case of probationary employment, Article 281 of the Labor Code requires the employer to make known to his employee at the time of the latter's engagement of the reasonable standards under which he may qualify as a regular employee. (G.R. No. 108405)

It is settled that a probationary employee enjoys a temporary employment status, not a permanent status. In general terms, he is terminable anytime as long as such termination is made before the expiration of the six-month probationary period. The employment of a probationary employee may only be terminated either (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of his employment. (G.R. No. 148931)

There are two kinds of regular employees, namely: (1) those who are engaged to perform activities which are necessary or desirable in the usual business or trade of the employer, and (2) those casual employees who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed.
Article 280 also recognizes project employees, those whose "employment has been fixed for a specific project or undertaking."

Project employment is distinct from casual employment referred to in the second paragraph of Article 280 for. . . the proviso that "any employee who has rendered at least one year of service . . . shall be considered a regular employee" does not apply to project employees, but only to casual employees.

Although Article 280 does not expressly recognize employment for a fixed period, which is distinct from employment which has been fixed for a specific project or undertaking, . . . employment for a fixed period is not in itself illegal. . . (G.R. No. 122653; G.R. No. 150658)

Article 280 of the Labor Code, as amended does not proscribe or prohibit an employment contract with a fixed period. It does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is nothing essentially contradictory between a definite period of employment and the nature of the employee's duties.

What Article 280 of the Labor Code, as amended, seeks to prevent is the practice of some unscrupulous and covetous employers who wish to circumvent the law that protects lowly workers from capricious dismissal from their employment. The aforesaid provision, however, should not be interpreted in such a way as to deprive employers of the right and prerogative to choose their own workers if they have sufficient basis to refuse an employee a regular status. Management has rights which should also be protected. (G.R. No. 167714; G.R. No. 106654)

It is settled that questions respecting a private school teacher's entitlement to security of tenure are governed by the Manual of Regulations for Private Schools and not the Labor Code. (G.R. No. 152949)

The provision which states that "the probationary period shall not exceed six months" means that the probationary employee may be dismissed for cause at any time before the expiration of six months after hiring. If, after working for less than six months, he or she is found unfit for the job, he or she can be dismissed. On the other hand, if such worker continues to be employed longer than six months, he or she is considered as a regular employee and ceases to be a probationary employee. (G.R. No. 168421)