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Termination of Probationary Employment (1)

Posted in Law by attycortes


Chronic Tardiness; Reasonable Standards for Regularization; o otice and !earing Re"uired
for Termination
Mylene was employed as a trainee-teller by a bank under a six-month probationary employment
contract. She was almost always late, so the bank sent her a memorandum directing her to explain why
she should not be subjected to disciplinary action for chronic tardines! "# times in one month$.
%nother memorandum was sent to her directing her to explain why she should not be suspended for
chronic tardiness! on &' occasions in one month. (n her written explanations to both memoranda, she
practically admitted the charges against her. She was suspended for ' days without pay, but before the '
days were o)er the suspension was lifted and her employment was instead terminated. *his happened
before the six-month probationary period was o)er. She filed a case for illegal dismissal against the
bank.
*he case e)entually reached the Supreme +ourt. *he Supreme +ourt identified the point of
contention! as follows, -hether her employment status ripened into a regular one.
*he Supreme +ourt decided the issue in the negati)e. %t the time of her engagement and as mandated
by law, petitioner was informed in writing of the standards necessary to .ualify her as a regular
employee. /er appointment letter reads,
xxxx
Possible extension of this contract will depend on the job re.uirements of the 0ank and your o)erall
performance. Performance re)iew will be conducted before possible renewal can take effect. *he 0ank
reser)es the right to immediately terminate this contract in the e)ent of a below satisfactory
performance, serious disregard of company rules and policies and other reasons critical to its interests.!
*he Supreme +ourt then proceeded to enumerate the grounds on the basis of which a probationary
employee may be terminated,
% probationary employee, like a regular employee, enjoys security of tenure. /owe)er, in cases of
probationary employment, aside from just or authori1ed causes of termination, an additional ground is
pro)ided under %rticle 2#& of the Labor +ode, i.e., the probationary employee may also be terminated
for failure to .ualify as a regular employee in accordance with reasonable standards made known by
the employer to the employee at the time of the engagement. *hus, the ser)ices of an employee who
has been engaged on probationary basis may be terminated for any of the following, "&$ a just or "2$ an
authori1ed cause and "'$ when he fails to .ualify as a regular employee in accordance with reasonable
standards prescribed by the employer.!
0ut the appointment letter did not specify punctuality! as one of reasonable standards prescribed by
the employer. 3e)ertheless, said the Supreme +ourt in effect, it is but common sense that she must
abide by the work hours imposed by the bank.!
Punctuality is a reasonable standard imposed on e)ery employee, whether in go)ernment or pri)ate
sector. %s a matter of fact, habitual tardiness is a serious offense that may )ery well constitute gross or
habitual neglect of duty, a just cause to dismiss a regular employee. %ssuming that petitioner was not
apprised of the standards concomitant to her job, it is but common sense that she must abide by the
work hours imposed by the bank. %s we ha)e aptly stated in %berdeen +ourt, (nc. )s. %gustin, 4r., the
rule on reasonable standards made known to the employee prior to engagement should not be used to
exculpate a probationary 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.!
5arlier, the Labor %rbiter ruled that Mylene was dismissed without due process because she was not
afforded notice in writing informing her of what respondent "the 0ank$ would like to bring out to her
for the latter to answer in writing.! *he Supreme +ourt held otherwise and cited its ruling in Philippine
6aily (n.uirer, (nc. ). Magtibay, 4r.,
7nlike under the first ground for the )alid termination of probationary employment which is for just
cause, the second ground failure to .ualify in accordance with the standards prescribed by employer
does not re.uire notice and hearing. 6ue process of law for this second group consists of making the
reasonable standards expected of the employee during his probationary period known to him at the time
of his probationary employment. 0y the )ery nature of a probationary employment, the employee
knows from the )ery start that he will be under close obser)ation and his performance of his assigned
duties and functions would be under continuous scrutiny by his superiors. (t is in apprising him of the
standards against which his performance shall be continuously assessed where due process regarding
the second ground lies, and not in notice and hearing as in the case of the first ground.!
*he Supreme +ourt ended its 6ecision by stating, (f the termination is for cause, it may be done
anytime during the probation8 the employer does not ha)e to wait until the probation period is o)er.!
"9eference, Mylene +ar)ajal, )s. Lu1on 6e)elopment 0ank and:or ;scar <. 9amire1, =.9. 3o.
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