Wednesday, May 23, 2012

Law on probationary employment. - G.R. No. 185829

G.R. No. 185829

"x x x.


The issue of whether or not petitioner was, during the period material, a probationary or regular employee is of pivotal import. Its resolution is doubtless necessary at arriving at a fair and just disposition of the controversy.

The Labor Arbiter cryptically held in his decision dated April 25, 2006 that:

Be that as it may, there appears no showing that indeed the said September 20, 2004 Memorandum addressed to complainant was received by him. Moreover, complainant’s tasked where he was assigned was a new developed service. In this regard, it is noted:

“Due process dictates that an employee be apprised beforehand of the conditions of his employment and of the terms of advancement therein. Precisely, implicit in Article 281 of the Labor Code is the requirement that reasonable standards be previously made known by the employer to the employee at the time of his engagement (Ibid, citing Sameer Overseas Placement Agency, Inc. vs. NLRC, G.R. No. 132564, October 20, 1999).[28]

From our review, it appears that the labor arbiter, and later the NLRC, considered Aliling a probationary employee despite finding that he was not informed of the reasonable standards by which his probationary employment was to be judged.

The CA, on the other hand, citing Cielo v. National Labor Relations Commission,[29] ruled that petitioner was a regular employee from the outset inasmuch as he was not informed of the standards by which his probationary employment would be measured.  The CA wrote:

Petitioner was regularized from the time of the execution of the employment contract on June 11, 2004, although respondent company had arbitrarily shortened his tenure. As pointed out, respondent company did not make known the reasonable standards under which he will qualify as a regular employee at the time of his engagement. Hence, he was deemed to have been hired from day one as a regular employee.[30] (Emphasis supplied.)

WWWEC, however, excepts on the argument that it put Aliling on notice that he would be evaluated on the 3rd and 5th months of his probationary employment. To WWWEC, its efforts translate to sufficient compliance with the requirement that a probationary worker be apprised of the reasonable standards for his regularization. WWWEC invokes the ensuing holding in Alcira v. National Labor Relations Commission[31] to support its case:

Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. We agree with the labor arbiter when he ruled that:

In the instant case, petitioner cannot successfully say that he was never informed by private respondent of the standards that he must satisfy in order to be converted into regular status. This rans (sic) counter to the agreement between the parties that after five months of service the petitioner’s performance would be evaluated. It is only but natural that the evaluation should be made vis-à-vis the performance standards for the job. Private respondent Trifona Mamaradlo speaks of such standard in her affidavit referring to the fact that petitioner did not perform well in his assigned work and his attitude was below par compared to the company’s standard required of him. (Emphasis supplied.)

WWWEC’s contention is untenable.

 Alcira is cast under a different factual setting.  There, the labor arbiter, the NLRC, the CA, and even finally this Court were one in their findings that the employee concerned knew, having been duly informed during his engagement, of the standards for becoming a regular employee. This is in stark contrast to the instant case where the element of being informed of the regularizing standards does not obtain. As such, Alciracannot be made to apply to the instant case.

To note, the June 2, 2004 letter-offer itself states that the regularization standards or the performance norms to be used are still to be agreed upon by Aliling and his supervisor. WWWEC has failed to prove that an agreement as regards thereto has been reached. Clearly then, there were actually no performance standards to speak of. And lest it be overlooked, Aliling was assigned to GX trucking sales, an activity entirely different to the Seafreight Sales he was originally hired and trained for. Thus, at the time of his engagement, the standards relative to his assignment with GX sales could not have plausibly been communicated to him as he was under Seafreight Sales. Even for this reason alone, the conclusion reached in Alcira is of little relevant to the instant case.

Based on the facts established in this case in light of extant jurisprudence, the CA’s holding as to the kind of employment petitioner enjoyed is correct. So was the NLRC ruling, affirmatory of that of the labor arbiter. In the final analysis, one common thread runs through the holding of the labor arbiter, the NLRC and the CA, i.e., petitioner Aliling, albeit hired from management’s standpoint as a probationary employee, was deemed a regular employee by force of the following self-explanatory provisions:  

Article 281 of the Labor Code

ART. 281. Probationary employment. - Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. (Emphasis supplied.)

Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code

Sec. 6. Probationary employment. – There is probationary employment where the employee, upon his engagement, is made to undergo a trial period where the employee determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.
Probationary employment shall be governed by the following rules:

x x x x

(d) In all cases of probationary employment, the employer shall make knownto the employee the standards under which he will qualify as a regular employee at the time of his engagement.  Where no standards are made known to the employee at that time, he shall be deemed a regular employee. (Emphasis supplied.)

To repeat, the labor arbiter, NLRC and the CA are agreed, on the basis of documentary evidence adduced, that respondent WWWEC did not inform petitioner Aliling of the reasonable standards by which his probation would be measured against at the time of his engagement. The Court is loathed to interfere with this factual determination. As We have held:

Settled is the rule that the findings of the Labor Arbiter, when affirmed by the NLRC and the Court of Appeals, are binding on the Supreme Court, unless patently erroneous. It is not the function of the Supreme Court to analyze or weigh all over again the evidence already considered in the proceedings below. The jurisdiction of this Court in a petition for review on certiorari is limited to reviewing only errors of law, not of fact, unless the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts.[32]

 The more recent Peñafrancia Tours and Travel Transport, Inc., v. Sarmiento[33]has reaffirmed the above ruling, to wit:

Finally, the CA affirmed the ruling of the NLRC and adopted as its own the latter's factual findings. Long-established is the doctrine that findings of fact of quasi-judicial bodies x x x are accorded respect, even finality, if supported by substantial evidence. When passed upon and upheld by the CA, they are binding and conclusive upon this Court and will not normally be disturbed. Though this doctrine is not without exceptions, the Court finds that none are applicable to the present case.

WWWEC also cannot validly argue that “the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts.” Its very own letter-offer of employment argues against its above posture. Excerpts of the letter-offer:

Additionally, upon the effectivity of your probation, you and your immediate superior are required to jointly define your objectives compared with the job requirements of the position. Based on the pre-agreed objectives, your performance shall be reviewed on the 3rd month to assess your competence and work attitude. The 5th month Performance Appraisal shall be the basis in elevating or confirming your employment status from Probationary to Regular.

Failure to meet the job requirements during the probation stage means that your services may be terminated without prior notice and without recourse to separation pay. (Emphasis supplied.)

Respondents further allege that San Mateo’s email dated July 16, 2004 shows that the standards for his regularization were made known to petitioner Aliling at the time of his engagement. To recall, in that email message, San Mateo reminded Aliling of the sales quota he ought to meet as a condition for his continued employment, i.e., that the GX trucks should already be 80% full by August 5, 2004. Contrary to respondents’ contention, San Mateo’s email cannot support their allegation on Aliling being informed of the standards for his continued employment, such as the sales quota, at the time of his engagement. As it were, the email message was sent to Aliling more than a month after he signed his employment contract with WWWEC. The aforequoted Section 6 of the Implementing Rules of Book VI, Rule VIII-A of the Code specifically requires the employer to inform the probationary employee of such reasonable standards at the time of his engagement, not at any time later; else, the latter shall be considered a regular employee. Thus, pursuant to the explicit provision of Article 281 of the Labor Code, Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code and settled jurisprudence, petitioner Aliling is deemed a regular employee as of June 11, 2004, the date of his employment contract.
 x x x."