Can a probationary employee be terminated even before the expiration of the six(6)-month probationary period?

           Yes.

            A probationary employee may be terminated any time before the expiration of the six (6)-month period for just cause or 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 the employment. Nonetheless, the power of the employer to terminate an employee on probation is not without limitations. First, this power must be exercised in accordance with the specific requirements of the contract. Second, the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and third, there must be no unlawful discrimination in the dismissal. In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer.

            The Labor Code provides:

ART. 281. Probationary Employment. — 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.

            In MANILA ELECTRIC COMPANY vs. NATIONAL LABOR RELATIONS COMMISSION and MERIS[1], the Supreme Court held that the provision of Article 281 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.

            In the foregoing case, the records showed that private respondent’s superiors did exert reasonable efforts to instruct him and apprise him of “the standard of performance required and explained to him” but “he frequently did not follow what was instructed for him to accomplish.” “Notwithstanding efforts and instructions, his performance was very below what was required of him.” He was also uncooperative toward his co-employees; and disrespectful to his superiors. Under the circumstances, the High Court found  sufficient cause for terminating private respondent’s probationary employment after only four (4)months.

            In EURO-LINEA, PHILS., INC., vs. NLRC and PASCUAL[2], the Supreme Court did not dispute the Petitioner’s claims that the dismissal of the employee in this case was with cause, since Respondent during his period of employment failed to meet the performance standards set by the company; that employers should be given leeway in the application of his right to choose efficient workers and that the determination of compliance with the standards is the prerogative of the employer as long as it is not whimsical; and that it had terminated for cause the respondent before the expiration of the probationary employment. However, the dismissal in this case was not upheld given that the records reveal the contrary fact that the employee was not able to meet the standards of the company.

            A probationary employee must be terminated anytime before the expiration of the six-month probationary period of employment for just cause or for failure to meet the performance standards set by the company.  After the six(6)-month period, the employee becomes a regular employee and may then be terminated only for just or authorized causes. 

            One of the just causes for terminating a probationary employee is the failure to meet the performance standards.  The power of the employer to terminate for this cause, should, however, be exercised without abuse of discretion.  It should be clearly shown that the probationary employee was subject to an evaluation any time within six months from the time of hiring and that such evaluation confirms the incompetence of the probationary employee to continue with the employment.