Counting the probationary period of employment: Which is the correct rule?

Management is bestowed with the prerogative to hire employees and our labor laws do not generally interfere with its exercise. To enable the employer to test and observe the conduct of the employee before hiring him permanently, the former is authorized by law to place the latter under probation. The essence of a probationary period of employment fundamentally lies in the purpose or objective sought to be attained by both the employer and the employee during said period. While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent appointment, the probationer, on the other hand, seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment (Cebu Marine Beach Resort et al., v. NLRC, etc. al., G.R. No. 143252, October 23, 2003).

It is legally prescribed, however, that the probationary period shall not exceed six months, unless it is covered by an apprenticeship agreement stipulating a longer period. The common question therefore that usually arises in probationary employment is the matter of counting the beginning and end of the period. This is important because Art. 281 of the Labor Code states, inter alia, that "An employee who is allowed to work after a probationary period shall be considered a regular employee." The law is clear when the period shall start, that is, from the date the employee started working. However, with regard to the date when it shall end, this is where the labor controversy lies. In one case, the employee was hired on May 20, 1996 under a probationary employment status for six months. The employee claimed that he already attained regular employment at the time he was dismissed on Nov. 20, 1996 because the six months period ended on Nov. 16, 1996. According to the employee, one month is composed of 30 days, and six months total 180 days. He contended that the 180th day fell on Nov. 16, 1996. The Supreme Court ruled that the employee was not correct. The Court opined that since the number of days in each particular month was irrelevant, the employee was still a probationary employee when the employer opted not to regularize him on Nov. 20, 1996. The six-month probationary period is reckoned from the date of appointment up to the same calendar date of the sixth month following (Alcira vs. NLRC, et. al., G.R. No. 149859, June 9, 2004). In another case decided in the same month, the employee who was also under probation for six months started working on May 27, 1996. He was terminated on Nov. 26, 1996. He claimed that he was dismissed on his 183rd day of employment, or three days after the end of his probationary period of six months. He said that he was already a regular employee on the date of the termination of his probationary employment. The Court said that the probationary period of months consists of 180 days. The number of months in the probationary period, six, should then be multiplied by the number of days within a month, 30; hence the period of 180 days. In computing a period, the first day shall be excluded and the last day included. Thus, the Court concluded that the 180 days commenced on May 27, 1996 and ended on Nov. 23, 1996. Thus, the employee was already a regular employee at the time he was terminated on Nov. 26, 1996 (Mitsubishi Motors Phils. Corp. vs. Chrysler Phil. Labor Union et. al., G.R. No. 148738, June 29, 2004.

(The author is the Resident Partner of the Cebu Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He is also a Professor of Labor Law at the University of San Carlos College of Law, Cebu City.)