CHAPTER 7: Classification of Employees I. REGULAR 1. those who are engaged to perform necessary or desirable activities for trade of employer, except when employment is fixed for specific term or project 2. casual employees who have rendered atleast (1) year of service, whether continuous or broken, with respect to activity which they’re employed * true despite written agreements that may state employee is not regular (prevent lopsided agreements and manipulations to keep employee on casual status) A. Standards 1. Activities Performed Are Necessary or Desirable In Usual Business of Employer * connection may be made by considering nature of work to be performed and its relation to the scheme of the business in its entirety * De Leon vs NLRC and La Tondena
FACTS
* Moises de Leon was employed by La Toneda in Dec 11, 1981 * Worked painting building, equipment, other maintenance jobs, cleaning and operating company equipment, assisting Emiliano (reg maintenance man) * Paid daily through petty cash vouchers * Jan 1983: requested to be included in payroll of regular workers, instead of petty cash vouchers * Terminated Moises = filed complaint for illegal dismissal, reinstatement, and payment of backwages * Weeks after dismissal he was rehired indirectly for same job in Vitas-Magsaysay Village Livelihood Council, labor agency of La Tondena * La Tondena claimed that he was only casual, hired to paint a certain building in company premises, and his work was terminated upon its completion
DECISION
* La Tondena is engaged in business of manufacturing and distilling wines and liquors * Claimed that Moises was contracted casually to paint a certain building and terminated upon its completion * May have been true, but during employment, he also cleaned oiling machines, operated drilling machine, and other jobs not painting * You can’t say his job was unnecessary for business; why was Emiliano a regular employee doing the same job? * Moises was never told his employment was casual, that he was paid through vouchers, and he didn’t comply with regular employment procedure * What determines if an employee is regular is the nature of activities performed in relation to business and the length of time (1 year) of its performance 2. Length of Performance of Activity Performed * if employee has been performing activity for at least 1 year, even if not continuous but intermittent, it’s sufficient to regular * only with respect to such activity, while such activity still exists B. Termination * The only valid grounds for termination are the just and authorized causes under Labor Code and after compliance with requirements of due process II. CASUAL * to work on activity not necessary or desirable in usual business, or when service is merely incidental to business of employer and such work, or when service is for definite period made known to employee at time of engagement A. When Casual Employee Acquires Status of Regular * with respect to activity which he is employed, as soon as 1 year is completed, and employment continues while such activity exists * even if no appointment papers were signed by employee * Baguio Country Club vs NLRC et aL
FACTS
* BCC employed Jimmy Calamba in various capacities as laborer or dishwasher for 10 month period (Oct 1, 1979 – July 24, 1980) * Sept 1-Oct 1, 1980: Jimmy was hired as a gardener and rehired on Nov 15, 1980 - Jan 4, 1981 when he was dismissed by company * Filed complaint for illegal dismissal and non-payment of 13th month pay for 1979 & 1980 * BCC says he is contractual whose employment was fixed for specific period as evidenced by contracts
- stating that he can be terminated anytime and his employment is on day-to-day basis * Solicitor General: Jimmy rendered services for more than 1yr = was regular at time of termination & nature of his job is necessary for business as recreational estab
DECISION
* Despite being contractual, records show was repeatedly re-hired to perform tasks ranging from dishwashing to gardening, aside from maintenance = evidence of necessity and indispensability of his services * Jimmy performed tasks for more than a year = regular employee by law B. Termination * NOT protected by security of tenure * May be removed from service anytime III. FIXED OR TERM
- employee for whom a day certain is agreed upon by yee-yer for commencement and termination of employment relationship A. Standards * The day certain agreed upon for commencement and termination * Day Certain: that which must necessarily come although it may not be known when B. Fixed Employee May Perform Work Necessary in the Usual Business of Employer * Nothing contradictory about it because it’s necessary for the business * Determining factor: not the activities performed but the day certain agreed upon of termination C. When Fixed/Term Acquires Regular Status * Civil code imposes no restraints on freedom of parties to fix the duration of contract * However, when period agreed on circumvents security of tenure, the period should be struck down and deemed contrary to public policy = deemed to be a regular employee * Pure Foods Corp vs NLRC et aL
FACTS
* 7906 employees were hired to work for 5mo fixed period at tuna cannery plant in Gen. Santos City. * Expiration on June & July 1981: employees were terminated and executed a “Release and Quitclaim” stating that they had no claim whatsoever against Pure Foods * Filed complaint for illegal dismissal * PF states employees are estopped from questioning because they agreed with 5mo duration contracts – still fall under exception of Labor Code on regular employees * PF claims they were only under 5mo employment =/= 1 year * Employees say that hiring them, only to replace them with workers with the same nature, is circumvention of law with security of tenure
DECISION
* Employees received, skinned, loined, packaged, cased, tuna fish = necessary * Could not have been hired for specific project or undertaking (not commonly or habitually performed, not done on a daily basis, only for specific duration or until its completion) * PF continuously hired to do same work negates contention that they were hired for a specific purpose * PF didn’t deny averments that: 1. Main bulk of workforce consisted of “casual employees” 2. 1835 casuals as of July 1991 3. Company hired casuals every month for the 5mo duration, then terminated, then replaced 4. Casuals were doing necessary work * PF’s scheme was designed to prevent workers from attaining regular status = clear circumvention = striken down * To uphold the yee-yer contract of PF violates the law on security of tenure D. When Fixed Contracts are Not In Circumvention of the Security of Tenure
Criteria:
1. fixed-period of employment was knowingly and voluntarily agreed upon by parties, without force, duress, or improper pressure 2. satisfactorily appears that yee-yer deal with each other on more or less equal terms, with no moral dominance whatever being exercised by yee-yer * Example: deans, company elected positions * Brent School and Rev. Dimache vs Zamora et aL
FACTS
* Doroteo Alegre – athletic director at yearly compensation of P20k * Contract: 5 years from July 18,1971-17,1976 * 3mo before expiration, Doroteo was given a copy of report filed by Brent with DOLE advising the termination of his services effective July 16, 1976, Grounds: completion of contract/ expiration * DA protested. Insisted that despite his contract, his services are necessary for business, and employment lasted 5yrs = acquired status of regular
DECISION
* Voluntarily and knowingly agreed upon * Doroteo’s contract expired, without necessity of notice. DOLE’s advice was just a memo, not a letter of termination = correct E. Termination * Terminates on its own at the end of a fixed period. Notice is not needed. * Contract workers who were dismissed without just cause, arising before effectivity of The Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042), it’s settled that “the contract is for a fixed term and employee is dismissed without just cause, he is entitled to payment of salaries corresponding to unexpired portion of contract IV. PROJECT * employees whose work is coterminous (having same boundaries, extent, meaning) with project hired A. Types
Project: one or the other of atleast 2 distinguishable types of activities * Particular job that is within the regular or usual business, but distinct & separate and identifiable as such from other undertakings of company. 1. Such job begins and ends at determined or determinable times (ex: construction company) 2. Identifiably separable and distinct from ordinary or regular business operations of employer (ex: fixed period or seasonal employees, in some cases they’re considered project employees) * William Uy Const. and/or Uy&Uy vs Trinidad
FACTS
* Aug 1,2006: Jorge Trinidad filed for illegal dismissal and unpaid benefits against WUCC * JT claimed to work for them for 16yrs since 1988 as driver of its service vehicle, dump truck, and transit mixer * Signed several contracts as a project employee but always assigned one project after another with intervals * Dec 2004: WUCC terminated him after it shut down operations because of lack of projects * JT learned that they had a project in Batangas but didn’t hire him back for it * WUCC countered that it was a construction business and they had to get employees co-terminous with the completion of specific company projects * Everytime JT was hired, he had to execute a Appointment as Project Worker contract * WUCC stressed that interval employment was inherent in construction business * After it finished Boni Serrano Katipunan Interchange Project in Dec2004, JT expired * Company submitted an establishment termination report to DOLE
DECISION
* Question: if continuous rehiring of JT entitles him to status of regular * Generally, length of service provides a fair yardstick. However, unfair if applied to construction industry because construction firms can’t guarantee work and funding for its payrolls beyond the life of each project * Supreme Court: successive rehiring does not qualify regular employment, it’s not the controlling determinant, but whether employee has been fixed for specific purpose, its completion having been determined at time of yee engagement * JT’s employments were co-terminous with WUCC’s projects B. Employees In Construction Industry * DO 19-93; Guidelines Governing Employment of Workers in the Construction Industry – issued in interest of stabilizing and promoting harmonious yee-yer relations in construction industry and ensure protection and welfare of workers
Construction Industry and Subdivisions: 1. Gen. building construction, gen. eng. construction, special trade construction 2. Companies involved in demolition work 3. Those falling in Construction Industry as determined by Labor Secretary
Employees Classified Into: 1. Project – employed with connection to particular project or phase and whose employment is co-terminous with project they’re assigned to 2. Non-project – those without reference to particular project or construction C. When Project Acquires Regular Status * whose aggregate period of continuous employment is atleast 1 year, in the absence of day certain agreed upon for the termination of yee-yer relationship * Meaning when final completion of project is determinable and expected completion is made known to employee, yee can’t be considered regular, despite 1yr duration * Fact that employee worked on a project for more than a year doesn’t change status * Only when a project employee has been engaged for atleast 1 year and NO DATE is agreed upon for completion = regular D. Indicators (either one or more) 1. Duration of specific/indentified undertaking that worker’s engaged in is reasonably determinable 2. Duration and specific work to be done is defined in employment agreement and made clear to employee when he’s hiring 3. Service performed by employee is connected to particular undertaking which he’s engaged 4. Employee, while not employed and awaiting engagement, is free to offer services to others 5. Termination of employment is reported to DOLE Regional Office with jurisdiction of workplace, with (30) days following separation date of wor, with prescribed form on employee termination 6. Undertaking in employment contract by employer to pay completion bonus to project employee as practiced by most const. companies E. Rehiring Upon Completion of Project * Employees of particular project aren’t separated at same time because some phases are completed ahead of others. As phase draws close to end, employees become fewer. * Completion of phase/project = expiration * After, employee may be rehired for another job, must conform to provisions of law and DO 19-93: last day of service should be indicated in contact F. Non – project Employees in Construction Industry * Those without reference to any particular construction project or phase of project
Types:
1. Probationary * entitled to regularization, upon completion of probationary period * should be informed, upon engagement, of reasonable standards to qualify as regular 2. Regular * those who fall under the categories: 1. appointed as such 2. completed probationary period 3. appointed to fill regular positions vacated as a result of death, retirement, resignation, termination 3. Casual * to perform work not related to main line of business of employer * employed for atleast 1 year, continuous or broken, considered regular with respect to activity in which they’re employed * Employment exists when activity exists, unless employment is terminated by yer for just authorized cause G. Termination * No notice required if by project completion * Dismissal of project employee: employer shall include same in Monthly Report on Employee’s Terminations/ Dismissals/Suspensions submitted to DOLE * If project hasn’t been completed and services are termination without just cause, and no indication that service is unsatisfactory, entitled to reinstatement with backwages to former position or substantially equivalent position * If reinstatement is no longer possible – yee is entitled to salaries for unexpired portion V. SEASONAL * perform work or service that’s seasonal in nature or is for duration of season A. When Seasonal Acquires Regular Status * Repeatedly re-employed every season, deemed regular seasonal employees * During off seasons, they’re not considered separated from service, but on leave of absence without pay until re-employed (not severed, only suspended) * During the temporary lay-off, employees can seek other employment, since they’re not paid and need to support themselves B. Termination * At end of season VI. PROBATIONARY * on trial by employers during which they determine whether or not they’re qualified for regular employment
Probationary Period * trial period where yer observes fitness, propriety, efficiency, of probationary employee, to ascertain if qualified for regularization in accordance with reasonable standards made know by yer to yee at engagement time * employee seeks to prove to yer that he’s qualified to meet standards A. Period of Employment * Depending on the job * Period required to learn skill, trade, occupation or profession * After expiration, probationary -> regular B. General Probationary Period * 6 months * this period, for lack of better measurement, is deemed to be period needed to learn job * Intl. Catholic Migr Comm Vs. NLRC & Galang
FACTS
* ICMC – nonprofit org for refugee service at Phil. Refugee Processing Center in Bataan * Jan 24, 1983: ICMC engaged in services of Bernadette Galang as probationary Cultural Orientation Teacher with P2000 a month * Apr 22, 1983, after 3mo: BG was informed her services were being terminated for failure to meet prescribed standards as reflected in performance evaluation of supervisors during program * Despite termination, BG didn’t leave, but stayed a few days before going back to Mnl * During this time, she was observed by ICMC to be allegedly acting strangely * July 24, 1983: returned to Bataan on ICMC service bus to accomplish clearance, was found, on same day, shivering wet from rain and acting bizarrely * Taken to ICMC’s hospital and given meds * Taken to her residence in MNL 2 days later on ICMC service bus * Her father wrote ICMC saying thank you. He received proportionate amount of BG’s 13th month pay and equivalent of 2 week pay * BG filed complaint for illegal dismissal and unpaid wages * Labor Arbiter dismissed complaint but required ICMC to pay BG P6000, representing last 3mo of agreed employment pursuant to verbal contract * ICMC said she’s not entitled since she was terminated on valid grounds * Said that probationary employees can be terminated anytime within 6mo period
DECISION
* BG was deficient in classroom mgt, teacher-student relationship, teaching techniques * Failure to qualify, just cause for termination * Essence of trial period lies in purpose sought to be obtained by both yee-yer during said period. The length of time is immaterial * Law gives ample authority to yer to terminate yee for just cause or when he fails to qualify as regular * No circumvention of BG’s rights when she was informed of termination. She was duly notified, orally and in writing, that she failed to meet the standards * Legit cause for termination. BG failed to show that there was unlawful discrimination in dismissal * Abuse of discretion for ICMC to pay BG salary for unexpired 3mo when she was validly terminated C. Probationary Period of Apprenticeable and Learnable Job * More or less 6 months, depending on nature of job * Upon graduation, apprentice may not be put under probationary employment in company where he trained * Would be under probation in another company to be trained for 6mo again * If job is learnable, possible within 3mo. Completion = regularization D. Probationary Period of Professors, Instructors, Teachers * Private school teachers – 3 yrs of satisfactory service E. Extension of General Probationary Period
May Occur When: 1. stipulation in original employment contract * parties may agree when same is established in company policy or when required by nature of work to be performed * especially when yee needs to learn particular work experience or training * Buiser vs Hon Leogardo and General Telephone Directory Co.
FACTS
* Sales Reps (Illuminada Van Buiser, Ma. Mercedes Intengan, and Ma. Cecilia Rillo-Acuna) were employed by GTDC and charged with duty of soliciting ads for inclusion in telephone directory * Sales Reps were entered into separate “Employment Contracts on Probationary Status”, including provision that they’re employed as telephone reps on probationary status for 18mo period * GTDC prescribed sales quotas to be accomplished by them * Failed to meet quotas = dismissed * Filed complaint for illegal dismissal * Contend that having served over 6mo makes them regular, despite contrary agreement * Sales Reps maintain that they’re regular employees and can only be dismissed for just cause enumerated in Labor Code
DECISION
* Exception to 6mo rule is when parties agree otherwise, same established by company policy, necessary for nature of work * In this case, there’s recognition of 18mo * Sometimes, probationary employees, who have served under the 6months are required to serve again on probation * Purpose of 6months is to protect worker and enable employer to make meaningful employee selection * GTDC needs 18mo to determine character and capabilities of Sales Reps. They’re enagaged in ads and pubs, made a year after sale has been made, and only then will company be able to evaluate properly 2. Extension agreed prior to expiration of 6mo * When yee fails to qualify during 6mo, yer may terminate services * Otherwise, yee-yer may jointly agree to extend period of probation, and improve and further probationary employee’s prospects of demonstrating fitness for regularization. Second chances! * Extension must be done at or prior to expiration of 6mo. Otherwise, employee will become regular, by extension of law. * If yee still fails, can’t claim to be regular * Mariwasa Manu. Inc & Dazo v Hon. Leogarda and Dequila
FACTS
* Jan 10, 1979: Joaquin Dequila was hired on probation by Mariwasa as Gen. Utility Worker * Probationary period expire: informed his work proved unsatisfactory and failed to meet standards for regularization * Mariwasa extended probationary period for another 3mo (July 19, 1979 – Oct 9, 1979) * Didn’t improve = terminated * JD filed action for illegal dismissal
DECISION
* Ex gratia extension of JD’s probationary period. * Ex gratia – act of liberality on part of his employer affording him 2nd chance to make good after failing to improve his work F. Probationary Employee Acquires Regular Status * if yee works beyond probationary period, deemed to regularization * in all cases of employment, yer has to inform yee of standards to meet to qualify as regular * when no standards are made known, he is deemed regular employee G. Acquisition of Regular Status Before Expiration of 6-month Probationary Period * Yer is not duly bound to allow yee to work until termination of probationary period * Yee may offer regular or permanent employment to employee even before end of 6mo trial period H. Termination * Failed to meet standards, written notice is sufficient within reasonable time from effective date of termination