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DECISION
GARCIA, J.:
By this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioner Philippine Daily Inquirer, Inc. (PDI) seeks the reversal and setting aside
of the decision[1] dated May 25, 2004 of the Court of Appeals (CA) in CA G.R. SP
No. 78963, affirming the resolution dated September 23, 2002 of the National
Labor Relations Commission (NLRC) in NLRC Case No. 00-03-01945-96. The
affirmed NLRC resolution reversed an earlier decision dated July 29, 1996 of the
Labor Arbiter in NLRC Case No. 011800-96, which dismissed the complaint for
illegal dismissal filed by the herein respondent Leon Magtibay, Jr. against the
petitioner.
The factual antecedents are undisputed:
basis for his dismissal. Finally, he described his dismissal as tainted with bad faith
and effected without due process.
PDI, for its part, denied all the factual allegations of Magtibay, adding that his
previous contractual employment was validly terminated upon the expiration of the
period stated therein. Pressing the point, PDI alleged that the period covered by the
contractual employment cannot be counted with or tacked to the period for
probation, inasmuch as there is no basis to consider Magtibay a regular employee.
PDI additionally claimed that Magtibay was dismissed for violation of company
rules and policies, such as allowing his lover to enter and linger inside the
telephone operators booth and for failure to meet prescribed company standards
which were allegedly made known to him at the start through an orientation
seminar conducted by the company.
After due proceedings, the Labor Arbiter found for PDI and accordingly dismissed
Magtibays complaint for illegal dismissal. The Labor Arbiter premised his holding
on the validity of the previous contractual employment of Magtibay as an
independent contract. He also declared as binding the stipulation in the contract
specifying a fixed period of employment. According to the Labor Arbiter, upon
termination of the period stated therein, the contractual employment was also
effectively terminated, implying that Magtibay was merely on a probationary status
when his services were terminated inasmuch as the reckoning period for probation
should be from September 21, 1995 up to March 31, 1996as expressly provided in
their probationary employment contract. In fine, it was the Labor Arbiters position
that Magtibays previous contractual employment, as later extended by 15 days,
cannot be considered as part of his subsequent probationary employment.
Apart from the foregoing consideration, the Labor Arbiter further ruled that
Magtibays dismissal from his probationary employment was for a valid reason.
Albeit the basis for termination was couched in the abstract, i.e., you did not meet
the standards of the company, there were three specific reasons for Magtibays
termination, to wit: (1) he repeatedly violated the company rule prohibiting
Management and labor, or the employer and the employee are more often
not situated on the same level playing field, so to speak. Recognizing this reality,
the State has seen fit to adopt measures envisaged to give those who have less in
life more in law. Article 279 of the Labor Code which gives employees the security
of tenure is one playing field leveling measure:
Art. 279. Security of Tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for a just cause
or when authorized by this Title. x x x.
But hand in hand with the restraining effect of Section 279, the same Labor
Code also gives the employer a period within which to determine whether a
particular employee is fit to work for him or not. This employers prerogative is
spelled out in the following provision:
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.
sought to be attained by both the employer and the employee during said period.
The length of time is immaterial in determining the correlative rights of
both in dealing with each other during said period. While the employer, as stated
earlier, observes the fitness, propriety and efficiency of a probationer to ascertain
whether he is qualified for permanent employment, the probationer, on the other,
seeks to prove to the employer, that he has the qualifications to meet the
reasonable standards for permanent employment.
It is well settled that the employer has the right or is at liberty to choose
who will be hired and who will be denied employment. In that sense, it is within
the exercise of the right to select his employees that the employer may set or fix a
probationary period within which the latter may test and observe the conduct of
the former before hiring him permanently. x x x.
convincing evidence that there were reasonable standards made known by PDI to
Magtibay during his probationary employment. It is on record that Magtibay
committed obstinate infractions of company rules and regulations, which in turn
constitute sufficient manifestations of his inadequacy to meet reasonable
employment norms. The suggestion that Magtibay ought to have been made to
understand during his briefing and orientation that he is expected to obey and
comply with company rules and regulations strains credulity for acceptance. The
CAs observation that nowhere can it be found in the list of Basic Responsibility
and Specific Duties and Responsibilities of respondent Magtibay that he has to
abide by the duties, rules and regulations that he has allegedly violated is a strained
rationalization of an unacceptable conduct of an employee. Common industry
practice and ordinary human experience do not support the CAs posture.
All employees, be they regular or probationary, are expected to comply with
company-imposed rules and regulations, else why establish them in the first place.
Probationary employees unwilling to abide by such rules have no right to expect,
much less demand, permanent employment. We, therefore find sufficient factual
and legal basis, duly established by substantial evidence, for PDI to legally
terminate Magtibays probationary employment effective upon the end of the 6month probationary period.
It is undisputed that PDI apprised Magtibay of the ground of his
termination, i.e., he failed to qualify as a regular employee in accordance with
reasonable standards made known to him at the time of engagement, only a week
before the expiration of the six-month probationary period. Given this perspective,
does this make his termination unlawful for being violative of his right to due
process of law?
It does not.
Unlike under the first ground for the valid termination of probationary
employment which is for just cause, the second ground does not require notice and
hearing. Due process of law for this second ground consists of making the
the part of the appellate court not to annul and set aside such void judgment of the
NLRC.
WHEREFORE, the assailed decision dated May 25, 2004 of the CA in CA
G.R. SP No. 78963 is hereby REVERSED and SET ASIDE, and the earlier
resolution dated September 23, 2002 of the NLRC in NLRC Case No. 00-0301945-96 is declared NULL and VOID. The earlier decision dated July 29,
1996 of the Labor Arbiter in NLRC Case No. 011800-96, dismissing respondent
Leon Magtibay, Jr.s complaint for alleged illegal dismissal, is REINSTATED.
No pronouncement as to costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
RENATO C. CORONA
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
[1]
Penned by Associate Justice Mariano C. del Castillo with Associate Justices Marina L. Buzon and Magdangal M.
de Leon, concurring; rollo, pp. 58-69.
[2]
[3]
[4]
PROBATIONARY EMPLOYMENT
By: Atty.Fred | September 4, 2006 in HR and Labor
52 Replies | Related posts at the bottom of article
Who is a probationary employee?
A probationary employee is one who, for a given period of time, is being observed and
evaluated to determine whether or not he is qualified for permanent employment. A
probationary appointment affords the employer an opportunity to observe the skill,
competence and attitude of a probationer. The word probationary, as used to describe the
period of employment, implies the purpose of the term or period. While the employer
observes the fitness, propriety and efficiency of a probationer to ascertain whether he is
qualified for permanent employment, the probationer at the same time, seeks to prove to the
employer that he has the qualifications to meet the reasonable standards for permanent
employment. (Escorpizo vs. University of Baguio Faculty Education Workers Union, G.R.
No. 121962 [1999])
What is the governing law?
Probationary employment is governed by Article 281 of the Labor Code, which reads:
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.
What are the grounds for terminating a probationary employee?
Article 281 states that a probationary employee can be legally terminated: (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 the
employment. The limitations in dismissing a probationary employee are:
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;
Third, there must be no unlawful discrimination in the dismissal.
New Case
In the recent case of Dusit Hotel Nikko vs. Gatbonton (G.R. No. 161654, 5 May 2006), the
Supreme Court found that the employer failed to present proof that the employee was
evaluated or that his probationary employment was validly extended.
In this case, the employee was hired for a 3-month probationary period (the period provided
by law is six months, but this may be shortened or, in appropriate cases, extended by
agreement between the employer and the employee). For its defense, the employer claimed
that the 3-month probationary employment was extended for another 2 months because the
employee was not yet ready for regular employment. The employer presented, as proof, a
Personnel Action Form containing the recommendation.
However, the Supreme Court noted that the Personnel Action Form: (1) was prepared on
only in the fourth month, well after the 3-month period provided under the contract of
employment; (2) the recommended action was actually termination of probationary
employment, and not extension of probation period; (3) the action form did not contain the
results of the respondents evaluation; (4) the action form spoke of an attached memo that
allegedly contains the recommendation for extension, but the memo was not presented; (5)
the action form did not bear the respondents signature.
Therefore, in the absence of any evaluation or valid extension, there is no basis to show if
the employee indeed failed to meet the standards of performance previously set.
Effect of validly terminating a probationary employment
At the expiration of the probationary period, the status of the employee becomes regular.
Since the employee in the Dusit Hotel Nikko case was not dismissed for a just or authorized
cause, his dismissal was illegal, and he is entitled to reinstatement without loss of seniority
rights, and other privileges as well as to full backwages, inclusive of allowances, and to
other benefits or their monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement.
May a probationary employment be extended?
In Mariwasa Manufacturing, Inc. vs. Leogardo (G.R. No 74246, 26 January 1989), the
Supreme Court stated that the extension of the probationary period was ex gratia, an act of
liberality on the part of the employer affording the employee a second chance to make good
after having initially failed to prove his worth as an employee. Such an act cannot unjustly
be turned against said employers account to compel it to keep on its payroll one who could
not perform according to its work standards. By voluntarily agreeing to an extension of the
probationary period, the 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 Issue
The sole issue for resolution is whether respondent was
illegally terminated from employment by petitioners.
The Ruling of the Court
We rule in the affirmative.
There is probationary employment when the employee
upon his engagement is made to undergo a trial period during
which the employer determines his fitness to qualify for regular
employment based on reasonable standards made known to him
at the time of engagement.[21]
A probationary employee, like a regular employee, enjoys
security of tenure.[22] However, in cases of probationary
employment, aside from just or authorized causes of termination,
an additional ground is provided under Article 281 of the Labor
Code, i.e., the probationary employee may also be terminated for
failure to qualify as a regular employee in accordance with
reasonable standards made known by the employer to the
employee at the time of the engagement. Thus, the services of
an employee who has been engaged on probationary basis may
be terminated for any of the following: (1) a just or (2) an
authorized cause; and (3) when he fails to qualify as a regular