Unjustly dismissed

An employee who is allowed to work after a probationary period shall be considered a regular employee. This is the rule applied in this case of Rene.

Rene was hired as Chief Steward in the Food and Beverage Department (F and B) of a hotel (DHN) on a three-month probationary employment with a monthly salary of P25,000.00. At the start of his employment on November 21, 1998, the standards by which he would be assessed to qualify for regular employment were explained to him.

From November 21, 1998 to February 21, 1999 which is the end of the three-month period, no evaluation of Rene’s performance as probationary employee was done. The Director of the F and B however claimed that Rene failed to meet the qualification standards for Chief Steward so he recommended further probationary period of employment until April 22, 1999. The Director said that on March 24, 1999, he informed Rene of his poor ratings on staff supervision, productivity, quantity of work and overall efficiency so he did not qualify as Chief Steward. The Director further added that it was Rene who requested for extension of the probationary period.

DHN presented two Personal Action Form (PAF) containing the alleged extension of the probationary period. One was dated March 2, 1999 and the other dated March 31, 1999. The March 2, 1999 PAF contained only the following remarks: "Subject to undergo extension of probation for 2 months per attached memo." It did not contain the results of the evaluation and the memo was not attached. It likewise did not have Rene’s signature.

On the other hand, the recommendation prepared by the PAF on March 31, 1999 was not an extension of the probationary period but termination of probationary employment effective April 9, 1999.

So on April 12, 1999, Rene filed a complaint for illegal dismissal and non-payment of wages with prayers for rein-statement, full backwages, damages and attorney’s fees. He contended that the termination of probationary employment on April 9, 1999 was illegal since at that date he was already a regular employee who can only be dismissed for a just cause. Was Rene correct?

Yes. In the absence of any evaluation it cannot be said that Rene failed to meet the standards of performance set by the hotel for a chief steward. There is also no valid extension of his probationary employment to prove that he was still a probationary employee when he was terminated on April 19, 1999. The Personal Action Form dated March 2, 1999 did not contain Rene’s evaluation. It spoke of an attached memo of the Director of F and B recommending extension of Rene’s probationary employ-ment for 2 months but the memo was not presented. Neither did the form bear Rene’s signature. The other Personal Action Form was only prepared on March 31, 1999 at the end of the 4th month of Rene’s employment. In fact the recommended action was termination of probationary employ-ment effective April 19, 1999 and not extension of the probation period. So at the expiration of the three month period, on February 21, 1999 Rene had become a regular employee in the absence of any evaluation and valid extension. It is an elementary rule in the law on Labor Relations that a proba-tionary employee engaged to work beyond the probationary period of 6 months, or for any length of time set forth by the employer (in this case, three months) shall be considered a regular employee.

In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer. In this case, the employer’s ground which is termination of his probationary employ-ment is not valid because he was already a regular employee at that time.

Since Rene was not dismissed for just or authorized cause, his dismissal was illegal and he is entitled to reinstatement without loss of seniority of rights and other privileges, as well as full backwages inclusive of allowances and other benefits or their monetary equivalent computed from the time it was withheld up to his actual reinstatement (Dusit Hotel Nikko vs. R. M. Gatbonton, G.R. No. 161654, May 05, 2006).

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