Week 8 - Kinds of employment

Question 1

Art. 293. Coverage. – The provisions of this Title shall apply to […].

Answer 1

Art. 293. Coverage. – The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.

Question 2

Art. 294. Security of Tenure. – In cases of […], the employer shall not terminate the services of an employee except for […]. An employee who is unjustly dismissed from work shall be entitled to […] and […] and to his […], inclusive of […], and to his other benefits or their monetary equivalent computed from […].

Answer 2

Art. 294. Security of Tenure. – In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

Question 3

Art. 295. (par. 1) Regular and Casual Employment. – The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular […], except where […] the completion or termination of which has been […] or […].

Answer 3

Art. 295. (par. 1) Regular and Casual Employment. – The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

Question 4

Art. 295. (par. 2) Regular and Casual Employment. – An employment shall be deemed to be casual if […]: Provided, That any employee who has rendered at least […] and his employment shall continue while […].

Answer 4

Art. 295. (par. 2) Regular and Casual Employment. – An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

Question 5

Art. 296. Probationary Employment. – Probationary employment shall not exceed […], unless it is covered by an […]. The services of an employee who has been engaged on a probationary basis may be terminated for […] or when […]. An employee who is allowed to work after a probationary period shall […].

Answer 5

Art. 296. 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 to 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.

Question 6

What is the primary standard of determining regular employment?

Answer 6

The Court in Hacienda Fatima v. National Federation of Sugarcane Workers, citing Abasolo v. NLRC, stated:

“The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual trade or business of the employer. […] Also if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists.” [Hacienda Fatima v. National Federation of Sugarcane Workers Food and General Trade GR No. 149440].

Question 7

When will employees labeled as “seasonal employees” be deemed as regular employees?

Answer 7

Repeated employment for the same task for more than one season takes them out of the ambit of seasonal employment and will make them regular seasonal employees. In Hacienda Fatima, the Court said “[I]t is not enough that they perform work or services that are seasonal in nature. They must have also been employed only for the duration of one season. […] The fact that respondents […] repeatedly worked as sugarcane workers for petitioners for several years is not denied by the latter. Evidently, petitioners employed respondents for more than one season. Therefore, the general rule of regular employment is applicable.” [Hacienda Fatima v. National Federation of Sugarcane Workers Food and General Trade GR No. 149440].

Question 8

What are the two kinds of regular employees?

Answer 8

There are two kinds of regular employees: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed.

Simply stated, regular employees are classified into: regular employees by nature of work; and regular employees by years of service. [Goma v. Pamplona Plantation Inc.]

Question 9

What is the principal test to determine whether employees are project employees as distinguished from regular employees?

Answer 9

The principal test used to determine whether or not the employees were assigned to carry out a specific project or undertaking, the duration or scope of which was specified at the time the employees were engaged for that project. [Goma v. Pamplona Plantation Inc.; Hanjin Heavy Industries v. Ibanez]

Question 10

According to the Labor Code, when is an employee a project employee?

Answer 10

Under Art. 280, an employee is a project employee when “the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee.”

Question 11

What is the burden of proof on the employer in cases of employers claiming that their employees are project employees?

Answer 11

The employers have the burden of showing that: (a) the duration and scope of the employment was specified at the time they were engaged; (b) there was indeed a project. [Innodata v. Inting]

Question 12

What must the employer show in order to validly say that his employees are seasonal?

Answer 12

To exclude the asserted “seasonal” employee from those classified as regular employees, the employer must show that: (1) the employee must be performing work or services that are seasonal in nature; and (2) he had been employed for the duration of the season. [URC v. Ang]

Question 13

What are regular seasonal workers?

Answer 13

Regular seasonal workers are those seasonal workers who are called to work from time to time and are temporarily laid off during the off-season but are not separated from the service in the said period, but are merely considered on leave until re-employment. [URC v. Ang]

Question 14

Are fixed term contracts invalid?

Answer 14

No. Fixed term contracts are valid. In the case of Brent School v. Zamora, a contract fixing the term of employment is valid if “the fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. [Brent School v. Zamora]

Question 15

What is the determining factor in fixed term contracts?

Answer 15

In fixed term contracts, the determining factor is not the duty of the employee but the day certain agreed upon by the parties for the commencement and termination of the employment relationship. [Fonterra Bands Phils Inc. v. Largado]

Question 16

What was the effect of the one-month ECQ in 2020 on the probationary period of employment?

Answer 16

For purposes of determining the six-month probationary period, the one-month ECQ period is not included thereof. [DOLE Labor Advisory No. 14].

Question 17

What is the legal effect of a probationary employee allowed to work past the probationary period?

Answer 17

The employee shall be deemed as a regular employee. According to Art. 296 of the CIvil Code, “An employee wo is allowed to work after probationary period shall be considered a regular employee.”

Question 18

What are the valid grounds for termination of a probationary employee?

Answer 18

The employment of a probationary employee may only be terminated either (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of his employment. [Cathay Pacific Airways, Limited v. Marin]

Question 19

What are the conditions upon which the power of the employer to terminate the probationary employee is subjected upon?

Answer 19

The power of the employer to terminate an employee on probation is thus subject to the following conditions: (1) it must be exercised in accordance with the specific requirements of the contract; (2) the dissatisfaction on the part of the employer must be real and in good faith, not prejudicial so as to violate the contract or the law; and (3) there must be no unlawful discrimination in the dismissal. The burden of proving just or valid cause for dismissing an employee rests on the employer.

Question 20

What is the procedural due process for the termination of a probationary employee based on failure to meet standards?

Answer 20

The [failure to qualify in accordance with standards prescribed by employer] does not require notice and hearing. Due process of law for this ground consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment. By the very nature of a probationary employment, the employee knows from the very start that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors. It is in apprising him of the standards against which his performance shall be continuously assessed where due process regarding the [this] ground lies, and not in the notice and hearing as in the case of the first ground. [Carvajal v. Luzon Development Bank]

Question 21

May the probationary period be extended by the employer?

Answer 21

Yes, but the employer must prove sufficient grounds for such. Under Umali v. Hobbying Solutions, the Court held that “Since extension of the period is the exception, rather than the rule, the employer has the burden of proof to show that the extension is warranted and not simply a stratagem to preclude the worker’s attainment of regular status. Without a valid ground, any extension of the probationary period shall be taken against the employer especially since it thwarts the attainment of a fundamental right, that is, security of tenure.

In the same case the Court cited Mariwasa v. Leogardo where there was a valid extension of the probationary period to give the employee a chance to improve his performance and qualify for employment. However in this case, there is no justifiable case that would warrant the extension.

Question 22

Is the 180 day probationary period a flexible rule?

Answer 22

No. in the case of Mitsubishi Motors Phils. Corp. v. Chrysler Phil. Labor Union, the Court held that the termination of an employee on the 183rd day on the ground of poor performance was already an illegal termination of a regular employee. Art. 296 of the LC, an employee who is allowed to work after a probationary period shall be considered a regular employee.