Lack of common sense

Probationary employment shall not exceed 6 months. During the period of probationary employment his services may be terminated only for just cause or when he fails to qualify as regular employee in accordance with reasonable standards made known by the employer at the time of the engagement. But if the reasonable standards are not made known to the employee can his dismissal be still considered valid? This is answered in this case of Tino.

On September 16, 1996, Tino, an electrical engineer, was hired by a Hotel and Restaurant Company (ACI) on a six-month probationary basis for the purpose of trouble shooting the electrical problems in its establishment. Pursuant to his employment contract, Tino agreed that the management can terminate his services at any time even before the six-month period should his performance be considered unsatisfactory.

On January 12 and 13, 1997, when a reading of the exhaust air balancing at the 5th and 6th floors of ACI’s premises was undertaken by an air-conditioning firm (CII), Tino was requested by the hotel’s engineer to take charge. After CII personnel finished their job, they submitted their report to Tino. Without even bothering to go to the work area and observe the progress or quality of the work performed and correctness of the report, Tino readily accepted and signed it. Later when ACI’s engineer checked the work, he found out that four rooms in the fifth floor and five rooms in the sixth floor were incorrectly done. Two days after the submission of the report, Tino was asked by ACI to explain his side. Tino claimed that he merely signed the report to evidence that he received a copy thereof. But the management was not satisfied with his explanation so the personnel officer told him that ACI was terminating his services as electrical engineer and that he could get his two weeks salary.

Tino requested assistance of DOLE which told him to report for work since the company did not serve him a notice of termination. But when Tino tried to report for work, the personnel officer said he could no longer do so. So Tino sued ACI for illegal dismissal. For its defense ACI contended that Tino was terminated because he failed to meet the standards that qualify him as a regular employee. But Tino countered that ACI did not apprise him of these reasonable standards as required law (Art 281, Labor Code) and its implementing rules (Book VI Rule I section 6) Was Tino correct?

Partly. While the employer is required to make known to the probationary employee the standards under which he will qualify as a regular employee at the time of his employment, such rule 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. In this case, even if technically the reading of the air exhaust balancing is not within the realm of expertise of Tino, prudence and due diligence imposed upon him not to readily accept the report handed to him by the CII workers. He should have proceeded to the work area, inquire from the workers as to any difficulties encountered, problems fixed and otherwise observe for himself the progress and/or quality of the work performed. By his omission, lack of concern and grasp of basic knowledge and common sense, Tino has shown himself to be undeserving of continued employment from probationary employee to regular employee.

Nevertheless by not affording Tino the required notice, ACI violated due process in dismissing him. An employer who dismisses an employee for just cause but does so without notice is liable for nominal damages in the amount of P30,000 (Aberdeen Court Inc. vs. Agustin, Jr. G.R. 149371, April 13, 2005. 456 SCRA 32)

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