If you have a probationary employee who demands that they be regularized, are you obligated to do that? How do you decide whether to let them continue in your team or let them go? What measuring stick or benchmark would be useful in deciding?

I recently got a question from a student which goes:

"Attorney, my probationary employee just demanded that I regularize him. He believes that his performance is exemplary, but I disagree. He says that if I don't regularize him, he will file a complaint against me in DOLE. What do I do?"

Let us set a few ground rules in place so we're all on the same page on what the labor code says about this:

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.

Photographer: Amy Hirschi | Source: Unsplash

Now, let's break the provision down to make probationary issues easier to understand.

First, probationary employment is a privilege. The purpose is for the employer to try out whether the employee is a good fit with the team. If the employer doesn't feel that it is a good match, then the employer is not obligated to retain the services of this employee.

Why aren't they obligated to? Again, we go back to the rationale: the purpose of probationary employment is to try out the employee. If you are obligated to follow thru with the employment, then the law would simply just eliminated probationary employment to begin with and just considered everyone regular from day 1.

Second, being a privilege, the employee cannot demand regularization if the employer disagrees that they are a good fit. Accepting an employee permanently is discretionary on the part of the employer, and therefore, it cannot be forced.

Damn fine coffee
Photographer: Andrew Neel | Source: Unsplash

Where issues may arise

The problem is when there is a mismatch between how the employer views the probationary employee's performance and the employee's self-assessment of his performance during the probationary period.

Imagine that you're conducting a performance evaluation for this probationary employee. In the scores, you notice that there is a massive disconnect between the employer's and the employee's ratings. What if it looks like this?

  • Leadership – employee 5/5 , employer 1/5
  • Attendance – employee 4/5 , employer 2/5
  • Report Accuracy – employee 5/5 , employer 1/5
  • Respect for superiors – employee 4/5 , employer 1/5

In this case, the possibility of the employee contesting their failure to qualify as a regular employee is imminent. Despite the fact that probationary employment is a privilege and at the end of the day, it's the employer's call, it would be best if we can avoid conflicts like this.

I'd like to offer 3 suggestions which are best practices when dealing with probationary matters.

1. Set the standards before you start

When the probationary period starts, we should take the time to meet with the employee and explain our expectations with them. That way, they have a good idea of how to perform, and you can call them out when their behavior falls short of the bar you've set together during this meeting.

Taking things a step further, document these standards and expectations and have the employee sign them. Attach this to the probationary employment contract and you're all set.

2. Document the performance

As much as possible, try to minimize any subjectivity in the assessment and turn as much as you can into objective observations. Document the performance so that you have a solid record to rely on when making decisions for regularization later on.

For example, don't just say, "I feel that you're always late!" When discussing the performance, it's better to hold the Daily Time Record of the employee and show their actual attendance:

  • June 10 – 8:15am
  • June 15 – 8:04am
  • June 21 – 8:36am

Or, don't just say, "I don't like the way you treat your superiors!" when it can be backed up with an incident report which reads:

  • On June 25, the employee was observed by co-employees shouting at his supervisor saying, "How come you're the supervisor? You're so stupid! How did you get promoted?" While shouting, the employee was wagging his fingers in the face of the supervisor.

Again, documentation ensures that you have ample legal basis for your decisions down the line. I cannot overemphasize the need for these to avoid conflicts because you have solid evidence on hand.

Another tip: assess often

It would also make sense to assess on a regular basis. Don't wait for the 5th month to make an evaluation. Assess as much as you can.

How often can you assess? The labor code is silent on this point, so you can exercise your management prerogative and decide how often is appropriate for you and your situation. You can assess on a weekly basis on the first month, then make it bi-monthly on the second til the fourth month, then make a final assessment on the 5th month. I think this arrangement works for the most part.

3. Communicate the assessment

The final tip is that the results of the assessments should be communicated on a regular basis. It would be best if the employee has an idea of where they stand so that they can make adjustments when needed.

The result of the regularization decision wouldn't also come as a surprise because you're in constant contact with them the entire time.

Recap

So that's it for this article. Here's what we learned:

  • Probationary employment is a privilege
  • The employer decides whether the employee will become regular
  • The employer cannot demand regularization
  • You can avoid conflicts by setting standards, by proper documentation, and by communicating the results to the probationary employee often.

Hope we were able to simplify this for you, now go out there and make better choices.

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