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Is it Easy to Get Fired as a Probationary Employee?

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Probationary employment is what’s called ‘worker purgatory’ when working a job. I’ve gone through probationary employment three times in my career, and the common theme is that this is the period where you tend to show off your talent and skills to your employer who has just met you.

The first three months is the so-called honeymoon period where – depending on how much you turn out to enjoy your job – you will bend over backwards to get results for your boss to impress your employer. The three months after that is usually the period where you’d have a good idea on whether your employer will keep you on or not, or in Philippine labor law terms, ‘regularize’ you. On months four to six, you’ll either have established yourself as one of the company’s rising stars, or in worst cases find out that you have so much catching up to do.

Worker purgatory can be such a difficult and testy time. Once you reach your sixth month, or at least are about to, your employer will assess your probationary period on whether you met their expectations and standards or not.

Some employers are compassionate enough to extend your probationary period for another 1-2 months, but for others, they’ll simply let you know that you weren’t good enough and will wish you well. If you ask me, it’s the former that happens more often than the latter because the company would certainly want to minimize recruitment, hiring, and onboarding costs and hassle. But sometimes, if the employee is just that awful and can’t add much value, the company’s more than happy to show him the door as early as possible. There are countless non-regularization cases out there that are worth discussing, but for now, let’s talk about this one case involving a legal assistant, in the case Univac Development v. Soriano (G.R. No. 182072).

Univac Development v. Soriano

In the case of Univac Development, Inc. v. Soriano we don’t get much background as to what the company does. A quick google search will tell you that it’s a company based in Pasig City involved in real estate development activities. But we do know a little of what the aggrieved, fired employee William Soriano was engaged in during his employment with Univac.

William Soriano worked as a legal assistant for Univac. He did usual legal assistant work, more like an internal paralegal the company brought on to handle the company’s dirty work and the manual labor that lawyers would rather not do. It wasn’t mentioned clearly in the case, but it appeared as though that Univac was embroiled in multiple lawsuits, whether it was for or against the company.

Soriano’s job was to coordinate with the company’s lawyers (unclear if in-house or on retainer) and he was to make sure that all legal documentation was in order, as well as monitor the status of Univac’s legal cases. It’s worth mentioning that Soriano was a law graduate with a master’s degree, and was yet to take the bar examinations. And maybe juggling his work with his studies for the bar had something to do with his alleged underperformance?

Well, it’s pretty convenient to judge a full-time worker studying on the side as an underperformer. It’s easy to say that the worker can’t focus on his job enough because of the existing distraction. In the Philippines where most of the time one college degree isn’t enough to make parents proud or even earn a decent living, working a day job while studying part-time is more common than you might think. I myself, have been there.

William Soriano was preparing for the bar exams when he was working for Univac, and he was still in his probationary period. He was fired, a little after a company meeting was held to discuss his employment status. During that meeting, the company told him that his job performance was unsatisfactory. And also in that meeting, Soriano somehow expressed that he was planning to leave anyway because he wanted to review for the bar.

Eight days before the end of his probationary period, Soriano stopped reporting for work. Whether it was known during that company meeting that the company wasn’t planning on keeping him on, that was unclear. What is known is that Univac already replaced him with another guy during his absence. Nonetheless, Soriano filed a case against Univac, for illegal dismissal.

What is Probationary Employment?

Before we get into the ruling of the Supreme Court on whether or not Soriano was illegally dismissed by Univac, let’s discuss what Probationary Employment means in the context of Philippine labor law. In the words of the Implementing Rules of the Labor Code:

“Sec. 6. Probationary employment. – There is probationary employment where the employee, upon his engagement, is made to go 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.

Probationary employment shall be governed by the following rules:

x x x x

(c) The services of an employee who has been engaged on probationary basis may be terminated only for a just or authorized cause, when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.

(d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.

And so, just from the legal provisions on probationary employment, we are able to ask in this case – did Univac make it known to Soriano what the standards were for him to get regularized? This was the central question to resolving the main issue on whether Univac illegally dismissed him.

What’s Needed to Terminate a Probationary Employee?

It turned out that no, William Soriano was not properly informed of the reasonable standards that it took for him to qualify as a regular employee.

"It is primordial that at the start of the probationary period, the standards for regularization be made known to the probationary employee," the Court said. Furthermore, "Equally important is the requirement that in order to invoke failure to meet the probationary standards as a justification for dismissal, the employer must show how these standards were applied to subject employee."

Univac Development, Inc. not only failed to prove that it was able to inform Soriano of the standards of regularization, it also didn't show how such standards were applied to him. A performance evaluation wasn't even done. Remember that all the company did was bring him into a meeting, telling him that he was no good.

How can he be no good, when being 'good' wasn't even defined for him in the first place?

And because of the fatal mistake of his employer of omitting the crucial step of letting him know of the standards, by operation of law, Soriano was considered as regular employee from day one.

In sum, you need more than just a conclusion of poor performance to terminate a probationary employee. From the very start, you as an employer need to let him know what you expected his performance to be. Because how can your employee measure up to something that's not clearly defined?

Choose Your Employers Wisely

Not only is Soriano's case illustrative of the legal precedents on probationary employment, but it also serves as a lesson to choose your employers wisely. Pressured that your employer gives you key metrics to hit from day one? Well, as you have seen here, it's to make sure that he's got his ass covered when it comes to letting you go for poor performance, for not passing the probationary period.

Choose an employer not because you think the culture is so chill and doesn't care much for metrics and KPIs. Choose to work someone who is transparent and gives no bullshit when it comes to what is expected from you. Having vague expectations for what constitutes good performance is a recipe for disaster, as you have seen in Soriano's case.

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