Probationary employee is a new hire under trial by an employer during which the employer determines whether or not he is qualified for permanent employment. It is well settled that the employer has the right or at liberty to choose who will be hired and who will be denied employment. In this sense, it is within the exercise of the right to select employees that the employer may test and observe the conduct of the employee before hiring permanently.
Although not yet permanent, terminating a three week employee must also observe due process, although not as strict as that for a regular employee. The Labor Code provides that "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."
Ergo, to terminate the probationary employee there should be a just cause or he had failed to qualify as a regular employee. The just causes are the same as those enumerated for a regular employee. The second cause, failure to qualify must be expounded, to wit: (1) failed to qualify based on reasonable standards; (2) Standards are made known at the time of engagement. Always refer to the standards made known to the employee, if you had addressed that the evaluation will be made every three months or monthly, it must be complied. When we overturned the policy made known to the probationary employee, the action becomes questionable.
In the case of Abbot Laboratories v. Alcaraz, the Supreme Court held that company policy partakes of the nature of an implied contract between the employer and employee. It is a contractual right.
"In this case, it is apparent that Abbott failed to follow the above-stated procedure in evaluating Alcaraz. For one, there lies a hiatus of evidence that a signed copy of Alcaraz's PPSE form was submitted to the HRD. It was not even shown that a PPSE form was completed to formally assess her performance. Neither was the performance evaluation discussed with her during the third and fifth months of her employment. Nor did Abbott come up with the necessary Performance Improvement Plan to properly gauge Alcaraz's performance with the set company standards.
While it is Abbott's management prerogative to promulgate its own company rules and even subsequently amend them, this right equally demands that when it does create its own policies and thereafter notify its employee of the same, it accords upon itself the obligation to faithfully implement them. Indeed, a contrary interpretation would entail a disharmonious relationship in the work place for the laborer should never be mired by the uncertainty of flimsy rules in which the latter's labor rights and duties would, to some extent, depend.
In this light, while there lies due cause to terminate Alcaraz's probationary employment for her failure to meet the standards required for her regularization, and while it must be further pointed out that Abbott had satisfied its statutory duty to serve a written notice of termination, the fact that it violated its own company procedure renders the termination of Alcaraz's employment procedurally infirm, warranting the payment of nominal damages. A further exposition is apropos."
A different procedure is applied when terminating a probationary employee; the usual two notice rule does not govern. Section 2, Rule I, Book VI of the Implementing Rules of Labor Code states that "if the termination is brought about by the xxx failure of an 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."
For termination of the employee, without reference to the policy on evaluation, there must be a just cause. The Labor Code enumerates the just causes as: Art. 296. Termination by employer. An employer may terminate an employment for any of the following [just] causes:
1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
2. Gross and habitual neglect by the employee of his duties;
3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
5. Other causes analogous to the foregoing.
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