A recent decision of the Supreme Court had extended to probationary employees the protection of security of tenure that regular employees are entitled to.
The case involves a nurse in a hospital whose six-month probationary employment was abruptly cut short due to negative reports about her performance.
The court ruled that the termination was illegal because, among others, she obtained passing grades that meet the hospital’s regularization standards in her employment contract.
It further said that although probationary employment may be terminated if an employee fails to meet the standards of regular employment, those standards should be reasonable and made known to the employee at the time of his or her engagement.
It turned out that the hospital issued her unsatisfactory performance rating two weeks after the termination of her employment and that she was not given the benefit of a performance evaluation.
Thus, the court ordered the hospital to pay her back wages for the remaining period of her probationary employment up to the time she is reinstated to her position.
The period of probationary employment, which may vary depending on the agreement of the employer and employee (and in the absence of such agreement, six months), is aimed at giving the employer the opportunity to assess the qualifications of a new employee for the position that he or she has applied for.
The rule of thumb is, if that employee fails to meet the performance standards that could ripen to his or her regularization, the employer may terminate his or her employment before the end of the probationary period or at its end, depending on the employer’s discretion.
As the court had pointed out, those standards should meet the following criteria: they’re reasonable, are made known to the employee at the start of his or her employment and the result of the performance evaluation should be disclosed to the employee.
In the latter case, the employee would have the opportunity to dispute the performance evaluation and may be able to prove that he or she has met those standards.
Except perhaps for businesses that have full-time human resource staff, the practice of discussing a probationary employee’s performance standards is often a hit-and-miss affair.
This may be due to pressure of work or the long-held (although mistaken) belief that “probies” do not enjoy the same rights as regular employees and therefore their employment can be terminated at will.
Not anymore in light of that ruling.
The standards against which the performance of probationary employees should be assessed in deciding whether or not they are eligible for regularization should be clear, time-based and measurable.
And most importantly, they should be written in a language that the employee is fluent in or comfortable with.
The idea is, at the outset, the employee is put on notice on what are expected of him or her and the objectives that those standards aim to accomplish. Thus, early on, he or she can decide whether or not to continue with the employment.
For example, if there are things that the employee should accomplish within a particular period (or deadline), they should be clearly spelled out and capable of being objectively measured or assessed.
For good measure, a monthly review of the employee’s work in relation to those objectives may be conducted to enable him or her to make the proper adjustments in his or her workstyle.
And when “judgment day” comes, if the probationary employee fails to make the grade, the reasons behind the termination of employment should be explained, and at the same time he or she should be given the chance to contest the evaluation, if he or she desires.
Bottom line, although an employer has the discretion to decide whether or not to give regular employment to probationary employees, that discretion has to be equitably exercised. INQ
For comments, please send your email to rpalabrica@inquirer.com.ph.