Below is a comprehensive discussion on the termination of a probationary employee after a late evaluation under Philippine law. This article covers (1) the legal basis of probationary employment, (2) the requirements for a valid probationary contract, (3) the employer’s obligation to timely evaluate, (4) the consequences of failing to evaluate within the probationary period, (5) just and authorized causes for termination, (6) procedural requirements, and (7) relevant jurisprudence and best practices.

1. Legal Basis of Probationary Employment

1.1 The Labor Code of the Philippines

Article 296 [formerly Article 281] of the Labor Code: This provision governs probationary employment. It states that employment shall be deemed regular where the employee has been engaged to perform activities usually necessary or desirable in the usual business or trade of the employer. However, an employee may be placed on a probationary status, which typically shall not exceed six (6) months unless it falls under exceptions provided by law (e.g., apprenticeship).
Purpose of Probation: The purpose of placing someone on probation is to test the employee’s qualification and determine if they meet the reasonable standards set by the employer for regular employment.

1.2 Department of Labor and Employment (DOLE) Issuances

DOLE Department Orders and Advisories periodically clarify aspects of the Labor Code relating to probationary employment, the requirement of communicating reasonable standards, and the proper documentation of these standards.
Although no single Department Order explicitly spells out all the consequences for a “late evaluation,” jurisprudence and DOLE guidelines consistently emphasize timely performance assessments.

2. Requirements for a Valid Probationary Contract

For a probationary employment contract to be valid, the employer must strictly comply with the following:

Written Contract: There must be a written employment contract stipulating the probationary period.
Reasonable Performance Standards: The employer must inform the probationary employee at the start of the engagement of the reasonable and job-related standards or criteria that will be used to evaluate their performance.
Duration: As a general rule, the probationary period should not exceed six (6) months, except for certain positions or conditions (e.g., authorized by a valid apprenticeship agreement or if specialized tasks require a longer period).

When these elements are not observed—especially the requirement to communicate standards at the onset—courts have often ruled that the employee automatically becomes a regular employee.

3. Obligation to Timely Evaluate During Probation

3.1 Timely Feedback and Assessment

An employer should ideally conduct periodic evaluations of a probationary employee’s performance within the probationary period. Common practice involves:

Mid-Probation Review: Conducting at least one evaluation halfway through the probationary period.
Final Evaluation: Conducting a final review toward the end of the six-month period (or earlier if performance issues become apparent).

3.2 Rationale for Timeliness

Fairness and Notice: An employee must be given a chance to improve or meet the required standards before the period lapses.
Due Process: The employee must be apprised not only of the standards but also of any perceived shortcomings so that they can rectify these prior to the conclusion of the probation.

4. Late Evaluation: Consequences and Issues

4.1 Automatic Regularization if Beyond the Probationary Period

A critical rule under Philippine labor law: if the employee continues to work after the lapse of the six-month probationary period without any action from the employer, the employee is deemed a regular employee. A “late evaluation” often intersects with this rule. If the probationary period expires before the employer provides a conclusive performance review and formal notice of termination (or extension, if validly authorized), then:

The employee becomes a regular employee by operation of law.
Subsequent termination must then comply with the more stringent requirements for regular employees, which means there must be just or authorized cause and full compliance with procedural due process for regular employees (i.e., notice-hearing-notice).

4.2 When is the Evaluation Considered “Late”?

An evaluation conducted after the six-month period (or the agreed-upon probationary period) is considered “late.”
If the employer attempts to terminate a probationary employee after the lapse of the probationary period on the basis of an evaluation that should have been done earlier, that termination may be invalid for non-compliance with probationary rules.

4.3 Court Stance on Late Evaluations

Philippine jurisprudence shows that late or retroactive evaluations carry little weight. Courts are inclined to uphold the principle that the employer had six months to assess the employee; failing to act in time is deemed a waiver of the employer’s right to terminate under probationary status.

5. Just and Authorized Causes for Termination During Probation

Regardless of whether an evaluation is timely or late, the employer’s right to terminate a probationary employee before the expiration of the six-month period requires any of the following:

Just Cause (e.g., serious misconduct, willful disobedience, gross and habitual neglect of duty, fraud, etc.).
Authorized Cause (e.g., installation of labor-saving devices, redundancy, retrenchment to prevent losses, closure of business, etc.).
Failure to Meet the Reasonable Standards: The employer must show that the employee knew the standards at the onset and failed to meet them.

However, once the probationary period has ended without valid termination or extension, the standard grounds for regular employees apply.

6. Procedural Requirements for Termination

6.1 During the Probationary Period

Notice of Failure to Meet Standards: The employer must serve notice, stating the specific reasons why the employee did not meet company standards.
Opportunity to Respond: Although the probationary process is less formal than dismissing a regular employee, giving the probationary employee the chance to explain or improve is an important element of fair process.
Timing: This notice must be served before or at the time the probationary period expires. Failure to do so results in the employee automatically gaining regular status.

6.2 After the Probationary Period (If Evaluation is Late)

If an employer attempts to terminate the employee after the lapse of the probationary period (due to a late evaluation or oversight), it must abide by the rules on terminating a regular employee:

Two-Notice Rule:
- First Notice: Informs the employee of the specific acts or omissions for which termination is sought. The employee is given the chance to respond.
- Second Notice: Communicates the employer’s decision after evaluating the employee’s explanation.
Just or Authorized Cause: The employer must prove one of the valid causes under the Labor Code for termination of a regular employee.

Failing this, the termination could be ruled unlawful, leading to possible reinstatement and back wages.

7. Relevant Jurisprudence

While Supreme Court decisions on probationary employment are numerous, the consistent doctrinal threads include:

Feliciano v. San Miguel Corporation – Emphasized the importance of communicating standards at the start of probation.
Agabon v. National Labor Relations Commission (NLRC) – Discussed the due process requirements, albeit primarily on procedural lapses in termination.
General Metal Container Corporation of the Philippines v. Leander – Clarified that if the employer fails to exercise the option to terminate within the probationary period, the employee is deemed regular.

These and other decisions illustrate that untimely or non-communication of performance standards and inadequate evaluation before the end of the probationary period typically result in regularization of the employee.

8. Best Practices for Employers

Provide Written Standards Upon Hiring: At the very least, the standards or key performance indicators (KPIs) should be attached to the employment contract or provided in a separate written document at the commencement of employment.
Conduct Scheduled Evaluations: Have a clear timeline—e.g., at three months (mid-probation) and at five-and-a-half months (final evaluation)—and ensure these are strictly observed.
Documentation: Keep detailed records of evaluations, feedback, and the employee’s acknowledgment of any performance deficiencies.
Serve Timely Notice: If the employee is deemed unlikely to meet the standards, give the notice of termination before the lapse of the probationary period. The notice should detail the shortcomings and refer to the standards that were initially communicated.
Avoid Extending Probation Illegally: Extension is only allowed in very limited instances (e.g., serious illness or where a longer period is permitted by law). Merely extending to “observe further” after failing to evaluate on time is generally impermissible.

9. Practical Tips for Employees

Request Clarity: If the standards are not made clear, politely request them in writing or ask for an explanation.
Document All Communications: Keep records of any feedback you receive, including emails or memos that discuss your performance.
Monitor the Calendar: Note the date your probation started and is supposed to end. If you have not received any formal evaluation by that date and you are still working, you can assert your right to be considered a regular employee.
Seek Legal Advice if Terminated Late: If you are terminated after the expiration of the probationary period on grounds that should have been evaluated earlier, consult with a labor lawyer or the DOLE to understand potential remedies.

10. Conclusion

The rules on terminating a probationary employee after a late evaluation under Philippine law revolve around timeliness, proper notice, and adherence to due process. Once the probationary period ends without formal notice or valid extension, the employee attains regular status by operation of law. Consequently, any attempt to terminate after this period must then follow the stricter process and substantive grounds required for regular employees.

For employers, vigilant compliance with deadlines, clear communication of standards, and proper documentation are vital to avoid disputes. For employees, knowing one’s rights regarding the probationary period, as well as seeking timely guidance, ensures protection under the law.