Atty. Ensign M. Icamen

Category: Client Education

Simplifies complex legal concepts for everyday readers. Includes FAQs, how-to articles, and legal definitions.

  • Non-Regularization of Probationary Employee

    Non-Regularization of Probationary Employee

    July 22, 2022

    HR reviewing employment contracts related to non-regularization of probationary employee.

    Probationary employee enjoys security of tenure. Their employment cannot be terminated on employer’s bare claim that the employee failed to qualify. There are some procedures and parameters that must be considered.

    Employers often have mistaken assumption that when they hire an employee on a probationary status such employee may be terminated at will at the end of the probationary period. It must be noted that probationary employees also enjoy security of tenure. Although, the rule in terminating their employment is slightly different as it does not require the application of a two-notice rule, non-regularization of a probationary employee cannot be arbitrarily exercised by the employer.

    Court decision document highlighting non-regularization of probationary worker legal case in the Philippines.

    In a little old case of Abbott Laboratories, Philippines, et. al. vs. Pearlie Ann F. Alcaraz,[1] the Supreme Court laid down some guidelines about a probationary employee.

    1. A probationary employee, like a regular employee, enjoys security of tenure. However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 295 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with the reasonable standards made known by the employer to the employee at the time of the engagement.
    1. The services of an employee who has been engaged on probationary basis may be terminated for any of the following: (a) a just or (b) an authorized cause; and (c) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.
    1. It should be noted however that Section 6(d), Rule I, Book VI of the Implementing Rules of the Labor Code provides that if the employer fails to inform the probationary employee of the reasonable standards upon which the regularization would be based on at the time of the engagement, then the said employee shall be deemed a regular employee. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.
    1. The employer is made to comply with two (2) requirements when dealing with a probationary employee: first, the employer must communicate the regularization standards to the probationary employee; and second, the employer must make such communication at the time of the probationary employee’s engagement. If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee.
    1. Keeping with these rules, an employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. This goes without saying that the employee is sufficiently made aware of his probationary status as well as the length of time of the probation. The exception to this is when the job is self-descriptive in nature, for instance, in the case of maids, cooks, drivers, or messengers.
    1. The rule on notifying a probationary employee of the standards of regularization should not be used to exculpate an employee who acts in a manner contrary to basic knowledge and common sense in regard to which there is no need to spell out a policy or standard to be met.
    1. In the same light, an employee’s failure to perform the duties and responsibilities which have been clearly made known to him constitutes a justifiable basis for a probationary employee’s non-regularization.
    Employer and employee discussing non-regularization of probationary worker during evaluation meeting.

    A different procedure is applied when terminating a probationary employee; the usual two-notice rule does not govern. Employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is served the employee, within a reasonable time from the effective date of termination.

    Legal Reference

    [1] G.R. No. 192571, July 23, 2013

  • State Auditors

    State Auditors

    Auditors reviewing public fund allocations in a government office.

    August 23, 2021

    Publication of Commission on Audit’s findings on DOH is a test to its people’s character.

    The Commission on Audit (“COA”) is a constitutionally-mandated agency of the government to check government agencies’ spending and use of its funds. Any government that advocates good governance and fights graft and corruption should be glad that COA is publishing and showing to the public, through its website, their findings or suspicions of anomaly in any government agency. It is odd reaction however to have angst against the agency which has the same advocacy as that of a government who bows to fight corruption especially if such agency is performing its constitutionally-mandated functions.

    In this light, the Department of Health (“DOH”) Secretary’s damning reaction to the publication by COA of its audit findings on DOH’s way of spending its funds is outrageous to the people. Instead of saying that COA destroyed its reputation to the public, it would have been better had he and his team just offered an explanation or pointed out COA’s errors in its findings. There is no need for a tantrum. It will only validate the propriety of the advice for him to seek psychiatric help.      

    Excerpt of the Constitution highlighting the role of auditors in oversight.

    COA’s functions are very clear under Article IX-D of the 1987 Constitution. It states thus:

    “SECTION 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

    “(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

    “SECTION 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.”

    Citizens reading audit findings from government websites.

    Not even a law can be passed to exempt any government agency. So, why quarrel with the state auditor? It is the guardian of government treasury and public’s money. Its findings should be appropriately responded and not met with threats. If judicial tribunals are regarded as protector of people’s rights, we should view COA as the guardian of the people’s money. We should welcome the publication of its audit findings. It is in accordance with the transparency mandate and the people have right to know. If the audited agency has acceptable and proper explanations, then the public should also welcome it. If there is a cause that can stand to prosecute responsible officials and employees for graft and corruption, then it should be filed and pursued valiantly without fear of any backlash. The Philippines needs genuine change. Its people and government must start such change.