Labo r Mi dt e r m s R e c i t s
J MM
11/13/17 — EH 405 ..................................................................1
11/15/17 — EH 406 ..................................................................2
11/16/17 — EH 402 ..................................................................4
11/17/17 — EH 405 ..................................................................7
11/17/17 — EH 404 ..................................................................8
11/22/17 — EH 406 ..................................................................9
11/22/17 — EH 404 ...............................................................13
11/23/17 — EH 402 ...............................................................13
11/24/17 — EH 404 ...............................................................15
11/27/17 — EH 405 ...............................................................18
12/1/2017 — EH 405 .............................................................18
12/1/2017 — EH 404 .............................................................19
11/13/17 — EH 405
By Marla
2 hours – 2 students
NOTE: OPEN QUESTIONS are those which can be answered
differently.
1. What are the three fields of Labor Law?
The three fields of Labor Law are Labor Standards Law, Labor
Relations Law, and Social Legislation
2. What is Labor Relations?
It refers to the comprehensive study of all aspects of
employer-employee relationship, including the fundamental
right of workers in the private sector, to security of tenure,
self-organization… (READ THE 1ST PARAGRAPH FROM THE
GENERAL COURSE DESCRIPTION IN THE PROSPECTUS)
3. Where can you find Labor Relations Law?
In the Labor Code.
4. The Labor Code is PD…?
PD 442.
5. When did it take effect?
November 1, 1974.
6. How do you distinguish Labor Relations Law from Labor
Standards Law?
Labor Standards Law governs the terms and conditions of
employment. It involves minimum wages, hours of work, or
occupational health and safety hazards. Labor Relations Law
covers all aspects of the employer-employee relationship. It
includes topics such as security of tenure, right to self-
organization, right to engage in peaceful and concerted
activities.
7. OPEN QUESTION: Can you give an example of a Labor
Standards provision?
Payment of wages in legal tender.
8. Do we have a rule on the interpretation or implementation
of Labor Laws?
Yes. Under the Art. 4 of the Labor Code, all doubts in the
implementation and interpretation of the provisions of this
Code, including its implementing rules and regulations, shall
be resolved in favor of labor.
9. Why are doubts resolved in favor of labor?
Employees and employers do not stand on equal footing.
The former are economically dependent on the latter.
10. What constitutional provision underscores Art. 4 of the
Labor Code?
Art. XIII, Sec. 3. Protection of Labor.
11. OPEN QUESTION: What is an instance where we can apply
Art. 4?
Atty: None that we have come across so far.
12. Can Art. 4 be extended to other instances?
For example, may it be applied to a CBA or an employment
contract? Yes. The relationship between capital and labor are
not merely contractual. It is impressed with public interest.
Thus, the rule on construction provided for in Art. 4 of the
Labor Code is not limited to the Labor Code and IRR. It
extends to agreements and writings, such as a CBA or an
employment contract.
13. Are there other instances when Art. 4 may be extended?
For example, in the case of evidence, may you accuse an
employee of theft based on hearsay information? Art. 4 may
be applied. The employer has the burden to prove that the
employee was terminated for just cause. If the evidence is
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert EH 405 (2017–2018)
Atty.
insufficient—as is the case with hearsay evidence—then the
dismissal was illegal.
14. What right does the employee have to his job?
Security of tenure.
15. How can you summarize Art. 4, if you include the instances
we’ve discussed?
(State Art. 4.) This rule extends to agreements in writings, and
evidence presented by the employer against the employee.
16. Who has the authority to PROMULGATE RULES AND
REGULATIONS implementing the Labor Code?
The Department of Labor and Employment, specifically the
Secretary of DOLE.
17. How do you describe this power to promulgate IRR?
It is DOLE’s quasi-legislative power, also known as its rule-
making power.
18. What are the three branches of government?
Executive, legislative and judiciary.
19. What branch does DOLE belong to?
Executive.
20. Does DOLE possess legislative power?
No.
21. What branch of government may LEGISLATE and enact
LABOR LAWS?
The Legislative branch; in particular, the two houses of
Congress.
22. In case of conflict between Labor Laws and IRR, which will
prevail?
The Labor Code will prevail. If a rule or regulation changes
the content or meaning of the law, it is void.
23. Does the Secretary of Labor INTERPRET the law?
No, it merely IMPLEMENTS the law.
24. Who interprets the law?
The courts.
25. Why are IRR subordinate to Labor Laws?
There are two reasons for this.
First, the Secretary of DOLE merely has a delegated power to
legislate, coming from the law itself. His power is dependent
on the Labor Code.
Second, the Secretary of DOLE cannot amend, revise,
abrogate or expand the law. His power is circumscribed by
the law itself.
Atty: Labor relations law is easier than Labor standards
because there is less content to study. However, it is more
difficult in terms of principles of law. They are mostly found in
your textbook and jurisprudence. This is why I gave in
advance the list of cases. You won’t find concepts such as
probationary employee in the Labor Code.
26. OPEN QUESTION: Give an example of a conflict between
IRR and Labor Laws?
Policy Instruction No. 54-88 erroneously interpreted that
health employees who complete 40-hours/5-day workweeks
ought to be paid a “full weekly wage for 7 days”. This
expanded Art. 83 of the Labor Code, which said that health
employees who work for the sixth day ought to receive an
additional 30% on top of their regular pay. Thus, the
Supreme Court declared this Policy Instruction void. (San
Juan de Dios Hospital case)
27. Does the Policy Instruction benefit the health workers?
Yes.
28. Yet, why did the Supreme Court disagree with the Policy
Instruction?
The Supreme Court disagreed because the Policy Instruction
was in conflict with the Labor Code.
Atty: Read Perez v. NLRC, which is an en banc case. Under the
Labor Code, in case of dismissal, the employee is entitled to
ample opportunity to be heard. In this case, the IRR said that
the employer is mandatorily required to 1) send a notice to
explain, 2) HOLD A FORMAL HEARING OR CONFERENCE,
and 3) send a notice of decision. The Supreme Court held
the IRR to be void because all the Labor Code required was
an opportunity.
Atty: Read Sonza v ABSCBN. DOLE Sec. issued a Policy
Instruction, categorizing employees in the broadcast
industry as program employees and non-program
employees. The Supreme Court did not read anything about
Pa ge 1 of 21
Labo r
program/non-program in the Labor Code. Thus, the
classification of the DOLE Sec. has no basis and was set
aside.
Atty: The moral of the story: Do not automatically believe the
Secretary of DOLE. Sometimes, they make rules which go
beyond what the law provides. When you become an
attorney, you can challenge the constitutionality of the IRR.
This is just a trial Q&A. We will end early and continue with
the first 3 Topics.
-END AT 7:48 PM-
11/15/17 — EH 406
By Rosanne and Margil
3 HOURS — 4 students called
*first student*
1. Is labor relations same with labor standards?
NO
2. Is there a marked distinction between the two?
Labor relations involves the comprehensive study of all
aspects of the relations between management and labor,
especially with respect to the maintenance of agreements,
collective bargaining, Labor standards refers to the
minimum terms, conditions and benefits of employment
prescribed by law relating to minimum wage, hours of work,
OSHS, and other standards of employment.
3. What is common between the 2?
Common in both fields involve the relationship of the er-ee
4. What is the third field of labor law?
Social and welfare legislation is the other field of labor law.
5. IN What law can we find LR law?
You can find the labor relations law in PD 442
6. That took effect when?
Nov. 1, 1974
7. Do we have a statutory provision on the rule in interpreting
the LC?
Article 4 of the Labor Code provides the interpretation for
the provisions of the labor code in case where there is doubt
in the interpretation and implementation of the law.
8. Labor in LC refers to whom?
The article refers to the working man/working class
9. Was the statute deliberately designed that way? Why?
Because labor and capital do not stand on equal footing, and
employers are economically dependent on their employees,
there is social and economic imbalance between labor and
capital. So, we need to tilt the scale of justice to the working
men.
10. Does that have a constitutional basis?
This is underscored on the constitutional provision on
“protection to labor clause”.
11. Does it violate any consti provision?
It doesn’t violate the equal protection clause because of the
imbalance. It is labor that is protected by the Constitution.
Also…. Social legislation.
12. Are these labor laws same with the IRR?
No
13. In case of conflict, what shall prevail?
In case there is a conflict between the LC and IRR, the LC will
prevail because the power to issue rules and regulations
merely emanates from the law itself. It could not be higher
than the source.
14. What happens if SOLE acts beyond his jurisdiction?
The SOLE must only act within the scope of his authority. He
cannot amend the law. The SC will nullify his issuances.
15. Can Labor arbiter nullify an IRR?
The LA cannot nullify an IRR. Courts only.
16. Who in the DOLE has the power to promulgate IRR?
The SOLE is given the power to promulgate rules and
regulations implementing the labor code (labor standards
and labor relations).
17. Is that a comprehensive and broad power?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
It is a comprehensive and broad power. It must always be
exercised within the scope of his authority.
18. Whenever SOLE issues an IRR, what is the binding effect of
this IRR?
The rules and regulations has the force and effect of a law, as
long as the IRR is within his authority.
19. What kind of power does he exercise?
He exercises quasi-legislative power or rule making power
when he makes IRRs.
20. Example of conflict between IRR and LC
Case See San Juan de jos case where the policy instruction
was struck down by the Court. The policy instruction was
issued beyond his authority and expanded the law. Void.
*next student*
21. SOLE issued an explanatory bulletin stating that if a
teacher does an overload work in excess of teaching load
(8 hrs), the overtime pay should be included to the 13th
money pay as part of basic pay. Valid?
Labor law explanatory bulletin is in excess of the 13th month
pay law. There is now conflict between the explanatory
bulletin and law. The law will prevail.
22. Opinion of SOLE advisory in nature?
The SOLE may provide his opinion on how to interpret the
law. But the opinion (explanatory bulletin), as a mere bulletin,
is merely an opinion and advisory. No binding effect
according to SC. The SOLE, in rendering the opinion is
merely exercising his administrative power.
23. Who has the power to interpret laws?
The court is the final arbiter to interpret the law.
24. Does SOLE have quasi judicial powers?
Yes
25. Does decision of SOLE become binding? Why?
The decisions of administrative bodies do not form parts of
the land. Only court decisions. See NCC art 8.
26. Is there an exception?
If the decision of the SOLE is affirmed to the Court, then it
forms part of the law because it now becomes a judicial
decision and is now within the scope of Art 8 of the NCC.
27. Does the IRR need to be published?
The IRRs need to be published before it takes effect because
of Article 2 of the NCC. Publication is indispensable.
28. If not published, is it valid? Is it enforceable?
If not published, it is still valid because it was issued within
the scope of the power of the SOLE, however, it is
unenforceable and cannot take effect. Non-publication does
not affect the validity of the law, only its enforceability and
effectivity. Tanada v Tuvera case.
29. Does the LC provide any provision about publication?
The labor code requires publication of the IRRs by the DOLE
as provided in article 5 of the LC.
Put header in your digests (mr. juan dela cruz labor relations
school year 2016-2017)
30. Classification of employees?
For purposes of labor relations law, employees are classified
as managerial, supervisory, and rank and file.
31. The test in determining presence of EE-ER relationship?
Which of the 4 is the most controlling? One of the tests to
determine ee-er relationship is the four fold test.
(Enumerate). The power to control or control test is most
controlling among the four.
32. Who exercises selection & engagement?
The power to select is exercised by the employer. It is a
management prerogative subject to limitations (non-
discrimination, etc etc)
33. Who fixes the wages?
Employer
34. Is it absolute?
NO
35. How much is the current Minimum wage?
366
36. How much does the ER pay the EE as provided in the LC?
The employer is required to pay his workers any amount as
long as it is not below the prescribed daily minimum wage.
EH 405 (2017–2018) Pa ge 2 of 21
Labo r
37. Who between them possesses the power to dismiss?
The power to dismiss is possessed by the employer. This is
labor relations in relation to right of the workers to security of
tenure.
38. Is the power to dismiss absolute?
The power to dismiss is not absolute, it subject to the
limitations prescribed by law. The law provides specific
grounds for dismissal.
39. If I’m a foreign investor and I ask for your legal advice, I tell
you that I want to exercise my power to dismiss at will.
Will it be possible?
40. What is your legal advice?
There is no such thing as power to dismiss at will. Since the
Constitution itself affords full protection to labor and the
workers under the labor code enjoys security of tenure.
41. What does power to control mean?
Control test is one of the four fold test in determining ee-er
relationship. It refers to control on the means and manner by
which the employee performs his job, including the results.
42. What are some badges of control the school exercises over
me?
For example, in Atty. JMM’s case, the badges of control of the
employer (the school) are the load unit, course assignment,
term and school year, and schedule given and imposed by
the school to him. In those regard, that is indicative of the
power and exercise of control of the school (employer) in
the means and manner by which he performs his job.
Therefore, the relationship between JMM and the school is
that of ee-er.
This also includes the results of the work. If daghan
mahagbong sa bar on labor, so wala sya nagtarong sa iyang
trabaho. He can be dismissed.
43. What is the two-tiered test for determining EE-ER
relationship?
The two-tiered test includes the power to control and most
important, the economic facts or economic dependence
test.
44. When do you apply the two-tiered test?
The two tiered test is applied when
(1) there is no employment contract and
(2) the person rendering service holds multiple positions.
For example if the employee is a corporate secretary,
member of the board, vice president of a department, etc.
There will now be doubt whether you are an employee or
not. See case of Francisco vs NLRC case.
45. Badges of employment under the two-tiered test?
Some indications of economic dependence is: company
uniform, ID, proof of registration with the SSS, PhilHealth,
PAG-IBIG.
NOTE: Indicative lang ni sya na mga evidence, not conclusive.
46. SSS membership presupposes what?
EE-ER relationship
47. Who are excluded from SSS coverage?
Purely Casual Employees
*next student*
48. Does the LC provide classification of employees?
YES
49. State the article that provides the Kinds of Employee and
Classification of Employment.
Art. 280. 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.
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 a regular employee with respect to the activity in
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
which he is employed and his employment shall continue
while such activity exists.
50. Does LC define regular and casual employment? How?
Regular — employee has been engaged to perform activities
which are usually necessary or desirable in the usual
business or trade of the employ
Casual (IRR definition) — an employee performs job that is
merely incidental to the business of the employer
51. Exceptions to Regular Employment
1) Project x
2) Seasonal
52. Why considered Project Employee?
Work is terminated upon completion of task/work/project
53. Does it perform work necessary to trade/business of
employer?
Yes
54. How is Regular Employee Classified?
1) By the nature of work (necessary/desirable to trade/
business
2) By length of service
(those who rendered at least 1 year of service whether
continuous or broken)
55. Read the Security of Tenure provision of the LC
Art. 279. 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.
56. Does a casual employee enjoy security of tenure?
NO
57. Is teaching necessary to USC?
YES
58. Does the definition of Art 280 determine the existence of
EE-ER relationship?
NO
59. What determines the EE-ER relationship?
4 fold test
60. If I work in an insurance company and solicit insurance
money, is there any EE-ER relationship?
NO (based on a case)
*next student*
61. In a school, give example of regular employees?
Teachers
62. How about casual employees?
Janitors
63. When speaking of companies/businesses, how do you
determine that an activity is related to the business/trade
of that company?
Articles of Corporation of the Business, you can find it at
Securities Exchange Commission
64. If a casual EE becomes a regular EE, does he enjoy security
of tenure?
YES
65. Enjoy security in terms of what?
With respect to the activity in which he is employed and his
employment shall continue while such activity exists
66. Is it the same with a regular EE?
NO.
67. Why? Whats the difference?
If the employee is a regular employee, his employment is
indefinite. Also consider his right to retirement. DLI
FOREVER ANG EMPLOYMENT!!!!
Review on retirement: optional employment at 60, needs at
least 5 years of service. If compulsory retirement at 65, no
need for minimum number of years of service.
68. Retirement age of judges?
70 years old
EH 405 (2017–2018) Pa ge 3 of 21
Labo r
69. Is the enumeration of exceptions to regular employment
exclusive? If not, what is another type of employment not
mentioned under the LC?
The enumeration of the exception to regular employment
under the labor code is not exclusive. Another exception are
those employed in a fixed term employment – as penned by
the Supreme Court in the case of Brent School vs Zamora. It
is not found in the LC.
11/16/17 — EH 402
By Ela
2 HOURS
1. What are the 3 fields of Labor Law?
Labor Standards Law (LSL), Labor Relations Law (LRL) and
Social Legislation
2. Is there a marked distinction between LR and LS?
Labor relations involves the comprehensive study of all
aspects of the relations between management and labor,
especially with respect to the maintenance of agreements,
collective bargaining. Labor standards refers to the minimum
terms, conditions and benefits of employment prescribed by
law relating to minimum wage, hours of work, OSHS, and
other standards of employment
3. What is common between the two?
It involves the EREE relationship
4. What is Labor Relations again?
Refers to the interactions between the employers and
employees or their representatives and the mechanism by
which the employment standards are negotiated, adjusted
and enforced
5. Where can you find Labor Relations Law (LRL)?
Labor Code (LC)
6. The LC is PD…?
PD 442
7. When did it take effect?
November 1, 1974
8. Labor in LC refers to who?
Working class or workingmen
9. Can you give an example of a Labor Standards provision?
e.g. provisions on the payment of wages in legal tender
10. Do we have a rule on the interpretation or implementation
of Labor Laws?
Yes, Article 4, LC. It provides that any doubt in the
interpretation and implementation of the provisions of the
LC or its IRR should be resolved in favor of labor
11. Why are doubts resolved in favor of labor?
The law recognizes that between the employees and the
employers, there is unequal footing with regard to economic
dependence.
12. Does this violate the “equal protection” clause in the
Constitution?
No, because again the law recognizes that labor and capital
are not on equal footing. Thus, there is justifiable reason to
treat them differently.
13. What constitutional provision underscores Article 4, LC?
Article 13, Sec 3 which provides for the protection of labor.
“The state shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for
all.”
14. What is an instance where we can apply Article 4?
JMM: none so far
15. Can Article 4 be extended to other instances? For example,
may it be applied to a CBA or an employment contract?
Yes. The relationship between capital and labor are not
merely contractual. It is impressed with public interest. Thus,
the rule on construction provided for in Art. 4 of the Labor
Code is not limited to the Labor Code and IRR. It extends to
agreements and writings, such as a CBA or an employment
contract.
16. Are there other instances when Art. 4 may be extended?
For example, in the case of evidence, may you accuse an
employee of theft based on hearsay information? Art. 4 may
be applied. The employer has the burden to prove that the
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
employee was terminated for just cause. If the evidence is
insufficient—as is the case with hearsay evidence— then the
dismissal was illegal.
17. What right does the employee have to his job?
The worker has the following rights in general:
(1) in relation to labor standards:
(a) humane conditions of work,
(b) living wage,
(c) just share in the fruits of production;
(2) in relation to labor relations:
(a) self-organization,
(b) collective bargaining and negotiations,
(c) peaceful concerted activities including the right to
strike in accordance with law,
(d) security of tenure,
(e) participate in policy and decision making processes
affecting their rights and benefits as may be
provided by law.
18. How can you summarize Art. 4, if you include the instances
we’ve discussed?
(State Art. 4.) This rule extends to agreements in writings, and
evidence presented by the employer against the employee.
19. Who has the authority to PROMULGATE RULES AND
REGULATIONS implementing the Labor Code?
The Department of Labor and Employment, specifically the
Secretary of DOLE.
20. How do you describe this power to promulgate IRR?
It is DOLE’s quasi-legislative power, also known as its rule-
making power. It is a comprehensive and broad power. It
must always be exercised within the scope of his authority.
21. What are the three branches of government?
Executive, legislative and judiciary.
22. What branch does DOLE belong to?
Executive.
23. Does DOLE possess legislative power?
No.
24. What branch of government may LEGISLATE and enact
LABOR LAWS?
The Legislative branch; in particular, the two houses of
Congress.
25. In case of conflict between Labor Laws and IRR, which will
prevail?
The Labor Code will prevail. If a rule or regulation changes
the content or meaning of the law, it is void.
26. Does the Secretary of Labor INTERPRET the law?
No, he merely IMPLEMENTS the law.
27. Whenever SOLE issues an IRR, what is the binding effect of
this IRR?
The rules and regulations has the force and effect of a law, as
long as the IRR is within his authority.
28. Are you saying these labor laws are not self-executing?
In most labor laws that we have like the LC are not self-
executing laws. They need the IRR to implement them.
29. Who interprets the law?
The courts.
30. Can the Labor Arbiter nullify an IRR?
No, only courts can order the nullification of an IRR. The LA
simply exercises quasi-judicial functions. It is the courts that
are vested with the right to rule on the constitutionality of a
law or IRR.
31. Why are IRR subordinate to Labor Laws?
There are two reasons for this. First, the Secretary of DOLE
merely has a delegated power to legislate, coming from the
law itself. His power is dependent on the Labor Code.
Second, the Secretary of DOLE cannot amend, revise,
abrogate or expand the law. His power is circumscribed by
the law itself. JMM: Labor relations law is easier than Labor
standards because there is less content to study. However, it
is more difficult in terms of principles of law. They are mostly
found in your textbook and jurisprudence. This is why I gave
in advance the list of cases. You won’t find concepts such as
probationary employee in the Labor Code.
32. OPEN QUESTION: Give an example of a conflict between
IRR and Labor Laws?
EH 405 (2017–2018) Pa ge 4 of 21
Labo r
Policy Instruction No. 54-88 erroneously interpreted that
health employees who complete 40-hours/5-day workweeks
ought to be paid a “full weekly wage for 7 days”. This
expanded Art. 83 of the Labor Code, which said that health
employees who work for the sixth day ought to receive an
additional 30% on top of their regular pay. Thus, the
Supreme Court declared this Policy Instruction void. (San
Juan de Dios Hospital case)
33. Does the Policy Instruction benefit the health workers?
Yes.
34. Yet, why did the Supreme Court disagree with the Policy
Instruction?
The Supreme Court disagreed because the Policy Instruction
was in conflict with the Labor Code.
JMM: Read Perez v. NLRC (more recent case), which is an en
banc case involving administrative cases of the ER-EE.
Under the Labor Code, in case of dismissal, the employee is
entitled to ample opportunity to be heard in administrative
investigation. In this case, the IRR said that the employer is
mandatorily required to 1) send a notice to explain, 2) HOLD
A FORMAL HEARING OR CONFERENCE, and 3) send a
notice of decision. The Supreme Court held the IRR to be
void because all the Labor Code required was an
opportunity. An employee therefore cannot demand as a
matter of right a hearing. All that is accorded to him is an
ample opportunity to be heard only.
Also, read Sonza v ABSCBN. DOLE Sec. issued a Policy
Instruction, categorizing employees in the broadcast
industry as program employees and nonprogram
employees. The Supreme Court did not read anything about
program/non-program in the Labor Code. Thus, the
classification of the DOLE Sec. has no basis and was set
aside.
See Letran Calamba Faculty case, teachers in the private
institution, SOLE said that those teachers who render
overtime work, the compensation of such should be
considered as part of its basic pay. Consequentially, it will be
computed as part of their 13th month pay. SC said that this
explanatory bulletin expanded the law regarding 13th
month pay since the law itself only refers to the basic salary
which does not include allowances, premium pay and
overtime pay, unless they are considered an integral part of
their salary.
The moral of the story: Do not automatically believe the
Secretary of DOLE. Sometimes, they make rules which go
beyond what the law provides. When you become an
attorney, you can challenge the constitutionality of the IRR.
35. Opinion of SOLE advisory in nature?
The SOLE may provide his opinion on how to interpret the
law. But the opinion (explanatory bulletin), as a mere bulletin,
is merely an opinion and advisory. No binding effect
according to SC. The SOLE, in rendering the opinion is
merely exercising his administrative power. The SOLE
opinion regarding a labor law or IRR is merely advisory, it
does not have the force and effect of a law. The final arbiter
on the interpretation of a law belongs to the court.
36. Does SOLE have quasi judicial powers?
Yes
37. Does decision of SOLE become binding? Why?
The decisions of administrative bodies do not form part of
the laws of the land. Only Supreme Court decisions applying
and interpreting laws shall form part of the legal system of
the Philippines. See NCC Art 8.
38. Is there an exception?
If the decision of the SOLE is affirmed to the Court, then it
forms part of the law because it now becomes a judicial
decision and is now within the scope of Art 8 of the NCC.
39. Does the IRR need to be published?
The IRRs need to be published before it takes effect because
of Article 2 of the NCC. Publication is indispensable.
40. If not published, is it valid? Is it enforceable?
If not published, it is still valid because it was issued within
the scope of the power of the SOLE, however, it is
unenforceable and cannot take effect. Non-publication does
not affect the validity of the law, only its enforceability and
effectivity. Tanada v Tuvera case.
41. Does the LC provide any provision about publication?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
The LCC requires publication of the IRRs by the DOLE as
provided in Article 5 of the LC.
42. Classification of employees?
For purposes of LRL, employees are classified as managerial,
supervisory, and rank and file.
43. The test in determining presence of EE-ER relationship?
Which of the 4 is the most controlling?
One of the tests to determine EE-ER relationship is the Four-
fold test which include
(1) selection and engagement,
(2) payment of wages,
(3) power to control and
(4) power to terminate or dismiss.
The power to control or control test is most controlling
among the four. The control test covers the means, manner
and results of the employee.
Remember, you cannot find the Four-fold test in the LC. It was
only the SC who provided the four-fold test.
44. Is there a need to apply the four-fold test when both the
employer and employee admit that the employee is truly
an employee of the employer?
Not anymore. We only apply the four-fold test when the
existence of the relationship is in dispute. When it is already
clear that there exists an ER-EE relationship, there is no need
anymore to apply this test.
45. Which of the four of the elements have we discussed
extensively in LS?
Selection and engagement (e.g. Who is the ER and EE? etc),
payment of wages (e.g. RTWPB, NWPC, Wage Orders,
Exemptions of Minimum wage) and power to control (e.g.
labor contracting and subcontracting). Now, in Labor
Relations, we will take up Power to Dismiss and discuss
aspects of power to control.
NOTE: In the case digest compilation now, we have to
provide a header.
46. Who exercises selection & engagement?
The power to select is exercised by the employer. It is a
management prerogative subject to limitations
(nondiscrimination, etc.)
47. Who fixes the wages?
Employer
48. Is it absolute?
No, it is subject to compliance with the minimum wage
49. How much is the current Minimum wage?
Php 366
50. How much does the ER pay the EE as provided in the LC?
The employer is required to pay his workers any amount as
long as it is not below the prescribed daily minimum wage.
51. Who between them possesses the power to dismiss?
The power to dismiss is possessed by the employer. This is
labor relations in relation to right of the workers to security of
tenure.
52. Is the power to dismiss absolute?
No, the power to dismiss is not absolute, it is subject to the
limitations prescribed by law. The law provides specific
grounds for dismissal.
53. If I’m a foreign investor and I ask for your legal advice, I tell
you that I want to exercise my power to dismiss at will.
Will it be possible?
There is no such thing as power to dismiss at will. It is always
subject to limitations, otherwise, the workers will be at the
mercy of the capital. The Constitution itself affords full
protection to labor and the workers under the labor code
enjoys security of tenure.
54. What does power to control mean?
Control test is one of the four-fold test in determining ER-EE
relationship. It refers to right to control, either exercised or
reserved by the ER on not only the results but also the means
and manner by which the employee performs his job.
55. What are some badges of control the school exercises over
me?
For example, in Atty. JMM’s case, the badges of control of the
employer (the school) are the load unit, course assignment,
term and school year, and schedule given and imposed by
the school to him. In those regard, that is indicative of the
power and exercise of control of the school (employer) in
EH 405 (2017–2018) Pa ge 5 of 21
Labo r
the means and manner by which he performs his job.
Therefore, the relationship between JMM and the school is
that of ER-EE.
This also includes the results of the work. If daghan
mahagbong sa bar on labor, so wala sya nagtarong sa iyang
trabaho. He can be dismissed.
56. What is the two-tiered test for determining EE-ER
relationship?
The two-tiered test includes:
(1) the ER’s putative power to control and
(2) most important, the economic dependence test
(underlying economic realities of the EE to the ER) of the
EE to the ER
57. When do you apply the two-tiered test?
The two tiered test is applied when
(1) there is no written employment contract and
(2) the person rendering service holds multiple positions.
For example, if the employee is a corporate secretary,
member of the board, vice president of a department, etc.
There will now be doubt whether you are an employee or
not. See case of Francisco vs NLRC case.
58. Badges of employment under the two-tiered test (which
would therefore manifest the existence of the ER-EE
relationship).
Some indications of economic dependence are: company
uniform, ID, proof of registration with the SSS, PhilHealth,
PAG-IBIG, being included in the payroll and use of time card.
NOTE: Indicative lang ni sya na mga evidence, not conclusive.
Taking into account all these pieces of evidence however,
we can say that under the two-tiered test, there exists an ER-
EE relationship.
59. SSS membership presupposes what?
EE-ER relationship basically no employer in his right mind
would apply for SSS membership on a person who is not his
employee
60. Who are excluded from SSS coverage?
Purely Casual Employees
61. If I have an employment contract, do we still apply the
two-tiered test?
Not anymore. The existence of the ER-EE relationship is not
anymore in dispute.
62. Does the LC provide classification of employees? Yes
63. State the article that provides the Kinds of Employee and
Classification of Employment
Art. 295. 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.
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 a regular employee with respect to the activity in
which he is employed and his employment shall continue
while such activity exists.
Basically, the LC provision only provides regular and casual
employment (See Article 295). The first paragraph speaks of
regular employment, while the last paragraph speaks of
casual employment.
The first paragraph defines regular employment and
EXCEPTIONS to regular employment (describes project and
seasonal employees).
Casual employment as defined in the LC is understood as the
employment not regular, project and seasonal. Casual
employment is more defined under the IRR— “There is
casual employment where an employee is engaged to
perform a job, work or service which is merely incidental to
the business of the employer and such job, work or service
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
is for a definite period made known to the employee at the
time of engagement”
64. Does LC define regular and casual employment?
Regular — employee has been engaged to perform activities
which are usually necessary or desirable in the usual
business or trade of the employ
Casual (IRR definition) — an employee performs job that is
merely incidental to the business of the employer
65. Exceptions to Regular Employment.
(1) Project and
(2) Seasonal
66. Why is it considered Project Employee?
Work is terminated upon completion of task/work/project
67. How is Regular Employee Classified?
(1) By the nature of work (necessary/desirable to trade/
business)
(2) By length of service (those who rendered at least 1 year of
service whether continuous or broken)
68. What do you mean by necessary?
It means the job, work or service are indispensable to the
industry of the employer (e.g. cook in a restaurant).
69. What about desirable?
It means the job, work or service would improve the nature or
running of the business of the employer
(e.g. janitor in a restaurant)
70. Security of Tenure provision of the LC.
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
(This basically speaks of the gist of security of tenure—
employee should continue to work until he is terminated for
a just and authorized cause).
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.
71. The law speaks of “in cases of regular employment”. So
does a casual employee enjoy security of tenure?
No. however, if the casual employee becomes a regular
employee with regard to the activity to which he is engaged
as long as that job still exists, he enjoys security of tenure.
72. Is teaching necessary to USC?
Yes
73. Does the definition of Art 280 determine the existence of
EE-ER relationship?
No, it only presupposes that an EE-ER relationship is already
established and it is already being classified accordingly.
74. If I work in an insurance company and solicit insurance
money, is there any EE-ER relationship?
No (based on a case). I believe that the relationship does not
comply with the four-fold test, especially lacking the ER’s
power to control.
75. In a school, give example of regular employees?
Teachers
76. How long is the employment of a regular employee?
Indefinite time until he is terminated for a just and authorized
cause without prejudice to the provision of law on
compulsory retirement which is at 65 years old.
77. How about casual employees?
Janitors in a school.
The school will continue to operate despite the absence of
janitors. However, remember, if the janitor is to work
continuously or broken for more than 1 year, he becomes a
regular janitor of the employer with respect to the activity
that he is engaged in as long as the job still exists (Casual to
Regular Employment).
In casual to regular employment, he only becomes regular
with respect to the activity he is engaged in as long as that
job still exists.
EH 405 (2017–2018) Pa ge 6 of 21
Labo r Mi dt e r m s R e c i t s Atty. J MM

78. When speaking of companies/businesses, how do you 9. If the IRR are issued within the scope of the authority of
determine that an activity is related to the business/trade the Sec. of Labor, does it have the force and effect of law?
of that company? Yes.
Articles of Incorporation of the Business, you can find it at
Securities Exchange Commission 10. Does it become a law?
No.
79. If a casual EE becomes a regular EE, does he enjoy security
of tenure? 11. When the Sec. exercises his quasi-judicial power, does it
Yes form part of the legal system of the Philippines?
No. Only the judicial decisions applying and interpreting the
80. Enjoy security in terms of what? laws shall form part of the legal system.
With respect to the activity in which he is employed and his
employment shall continue while such activity exists 12. What is your legal basis?
Art. 8 of the Civil Code.
81. Is it the same with a regular EE?
No 13. When the Sec. makes decisions, what kind of decision is it?
It is administrative decision.
82. Why?
If the employee is a regular employee, his employment is 14. When may an administrative decision form part of the
indefinite. Also consider his right to retirement. legal system?
When it is affirmed by the Supreme Court.
Review on retirement: optional employment at 60, needs at 15. What is the four-fold test in determine
least 5 years of service. If compulsory retirement at 65, no
The four-fold test are as follows: 1) Selection and
need for minimum number of years of service.
Engagement of Employees, 2) Payment of Wages, 3) Power
83. Retirement age of judges? of Dismissal, and 4) Power to Control.
70 years old. 16. Which of this tests have we NOT taken up in detail last
semester?
84. Is the enumeration of exceptions to regular employment
exclusive? If not, what is another type of employment not The power of dismissal.
mentioned under the LC? 17. Which is the most controlling test?
The enumeration of the exception to regular employment The power to control
under the labor code is not exclusive. Another exception is
those employed in a fixed term employment – as penned by 18. What does it cover?
the Supreme Court in the case of Brent School vs Zamora. It The results, as well as the means and manner of performing
is not found in the LC. the work.
19. If the power to control is there, what exists?
11/17/17 — EH 405 An employer-employee relationship.
20. There are instances when we apply the two-tiered test,
By Marla such as when there is an absence of an employment
contract?
1. The power and authority of the Sec. of Labor to No. An employment contract is consensual in nature. It is
promulgate rules and regulations is an exercise of rule-
making power. Who granted this power? perfected by the agreement of the parties.
The Labor Code itself. 21. What is the two-tiered test?
2. Does the law authorize the Sec. to amend the law or to First, putative control over the means and manner, and,
revise? underlying economic realities of the relationship.
No. 22. Is the first test similar to the power to control?
3. What is the most that the Sec. of Labor is expected to do? Yes.
At most, he can issue rules and opinions about how a 23. So let’s focus on the second test. What does the economic
particular provision of the Labor Code should be applied. facts of the relation test mean?
4. What happens if it is in excess of his authority? It involves the economic dependency of the employee to the
employer for the continuance of his employment.
The IRR will be held null and void.
24. What evidence will you ask from your client to determine
5. OPEN: Can you give an example of an IRR that was held this?
void because it was in conflict with the law?
You can ask for payroll—which is prima facie proof that
EXAMPLES: Policy Instruction 54-88 in page 15 of the Spectra someone is an employee.
Notes. (NOTE: Don’t answer if someone talked about it na.);
Perez v. NLRC or Sonza v. ABSCBN in page 3 of Nov. 13 25. Is it required to keep your employees in a payroll?
Labor Relations Recits of EH405. Yes.
Sonza v. ABSCBN: Sonza is currently a TV host of Mel and Jay 26. What is found in a payroll?
(sp?). Do you watch GMA? He used to work for ABSCBN, but Wages, SSS/PhilHealth/PAGIBIG deductions, etc.
his contract was eventually terminated. He complained that
27. What other evidence?
he is an employee and has security of tenure. ABSCBN
argued that he is a host. Rather, he is an independent talent Company ID, company uniform, SSS coverage, PAGIBIG
because the studio does not exercise the right of control registration.
over the means and methods of his work. Sonza based his 28. Who are the parties in an employment contract?
claims on a Policy Instruction of DOLE, which stated that Employers and employees.
people who work in the broadcast industry are all — next person —
employees. The SC held this to have no basis in fact and in
law. 29. In according to whether they can avail of Labor Standards
Law, employees are generally classified into two. What
6. What does this tell us? are they?
It tells us that, if the issuance of the DOLE Sec. expands the Managerial and rank-and-file employees.
law or strips it, it shall be considered void. The IRR will have 30. In relation to Labor Relations Law, how are employees
no place. classified?
7. The Sec. of Labor can also give an opinion about the Managerial, supervisory, and rank-and-file employees.
interpretation of the Labor Code. What is its probative
weight? 31. Let’s go to kinds of employees under the Labor Code. Is
there a provision?
The Sec.’s opinion is merely advisory. It may guide the court’s
Yes. Art. 295.
opinion, but it does not bind it. It does not have the force
and effect of law. 32. How are employees classified in the header?
8. Who is the final arbiter of the interpretation of the law? Regular and casual employment.
It is the Court. 33. How does the provision define regular employment?
Read Art. 295.

Compiled by: Sandee

Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert EH 405 (2017–2018) Pa ge 7 of 21
Labo r
34. Does it specifically define casual employment?
No. It merely says that casual is NOT regular. It is neither
regular employment, project employment or seasonal
employment.
35. How does the IRR define casual employment?
Read Sec. 5(b), Rule I, Book V of Omnibus Rules. It can also be
found in page 30.
36. The Labor Code provides exceptions to those who have
regular employment. What does it say?
…EXCEPT where the employment has been fixed for a
specific project or undertaking etc. (Art. 295(280) or page 27
of Spectra).
37. How does the article define project and seasonal
employment?
Read.
38. To sum it up, what are the types of employments
mentioned in Art. 290?
The article mentions regular employment, project
employment, seasonal employment, and casual
employment.
39. Which of these kinds of employment enjoys security of
tenure under the Labor Code?
Only the regular employees, under Art. 294 (279).
40. Does the casual employee enjoy security of tenure?
Generally, no.
41. How do you understand security of tenure?
It is the right of an employee to continue work until
terminated for a just or authorized cause.
42. Are there instances when a casual employee becomes a
regular employee?
Yes.
43. How?
The casual employee is allowed to work for AT LEAST one
year.
44. OPEN: Can you give an example of a casual employee in a
school?
A utility worker.
45. Assuming that your utility worker works for more than one
year, does he become a regular TEACHER?
No. He becomes a regular utility worker.
46. What activity is his work?
It is limited to the job he was hired for in the first place.
47. How long will this employment last?
It will last for as long as the school requires that specific utility
work.
48. If the school no longer needs the utility work, what
happens to the worker’s employment?
It will cease to exist.
49. What is the difference between the regular employee, and
a casual employee who attained regular status due to
working for more than 1 year?
The former is indefinite. The latter will last while the activity he
was hired for still exists.
50. Can an employee terminate his employment any time?
Yes. Nobody can compel you to work against your will, as this
constitutes involuntary servitude.
51. What is the compulsory age of retirement?
65, with no required years of service.
52. What is the primary test in determining whether
employment is regular or not?
Whether the activity is necessary or desirable to the usual
business of the employer. (Page 28 of Spectra)
53. How does the court know what is the usual trade or
business of the employer in a corporation?
The articles of incorporation.
54. What is desirable in Filipino?
55. In a restaurant, what jobs would be considered regular?
Cook, cashier, server, dishwasher, janitor.
11/17/17 — EH 404
By ALPO-AC — 2 hours
1. How long is the duration of a Regular Employment?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
A: The duration for regular employment is indefinite until the
employee is
(1) terminated for a just and authorized cause;
(2) when the employee voluntarily terminates his
employment;
(3) when the employee reaches the compulsory age of
retirement.
You cannot insist if you already reached the compulsory age
of retirement unless the employer extends your employment
service.
2. What is the primary test in determining whether the
employment is regular?
A: There is a reasonable connection of the work done by the
employee in relation to the usual business of the employer.
The controlling test is the activity that the worker performs is
necessary or desirable to the trade or business of the
employer.
3. If an employer is a corporation, how do we know what
trade or business the employer is engaged in?
A: By looking at the Articles of Incorporation at the Securities
and Exchange Commission. It indicates the primary or a
secondary purpose of the business.
4. The Labor Code says in Art. 295, “The provisions of written
agreement to the contrary notwithstanding and
regardless of the oral agreement of the parties..”, this is a
qualification. What is the purpose of this qualification?
A: The purpose of this qualification is in order for employers
not to circumvent the employee’s right to security of tenure
by making the employment not regular through a written or
oral agreement. If we were to permit the employer in making
a written agreement to the contrary notwithstanding that you
are performing a job that is necessary or desirable to the
usual trade or business of the employer, that would
circumvent the security of tenure of the employee.
5. Which of these types of employment (regular, project,
seasonal and casual) is mentioned by the LC to enjoy
security of tenure?
A: Regular employment. Art. 294 provides “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.”
6. What do you mean by the right to security of tenure?
A: It is the right of the worker to continue with his
employment until he is terminated for a just or authorized
cause.
7. Is the right to security of tenure recognized by the
Constitution?
A: Yes, under Art. Art. 13, Sec. 3. It is a fundamental right and
now it is also in the LC therefore it is a very important
statutory right.
8. Does a casual employee enjoy security of tenure?
A: No, if the job performed by the casual employee is done,
he is deemed terminated.
9. But what if that casual employee becomes now a regular
employee, how long will his employment be?
A: His employment is coterminous to the activity he performs
and while such activity continues to exist. He enjoys now
security of tenure with respect to the activity in which he is
employed and as long as that activity exists.
10. How do we classify regular employees?
(1) By nature of the work/job and
(2) By length of service.
Nature of job meaning that it is necessary or desirable to the
usual trade or business of the employer and by length of
service meaning if the employee reaches at least 1 year of
service, whether continuous or broken.
11. Why continuous or broken?
A: Continuous employment is if there is no break in the
employment or no interruption. Broken is when there is
interruption in the employment. There are times when the
employee will be hired for a specific period of time and after
that his employment ended and then the following year, he
was again hired for 5 months but his employment was
already more than 1 year. So he is still a regular employee.
If you are a casual, you now become a regular employee. But
if you are not a casual, you are regular from the start, there is
no more need to distinguish continuous or broken.
EH 405 (2017–2018) Pa ge 8 of 21
Labo r
12. A regular worker may either be a permanent worker or a
probationary worker. When is a regular considered a
probationary and when permanent?
Regular worker:
a. Permanent – if he has successfully passed the period of
probation and if he is not placed on probation at all.
b. Probationary – if the employee is placed on probation
which does not exceed 6 months. Probation in LC means
trial period.
13. What are the exceptions to regular employment in the LC?
Is this exclusive?
A: - Art.295, project and seasonal. No, it is not exclusive.
According to jurisprudence, it also includes Fixed Period/
Term Employment.
14. How is Fixed Term similar to Project and Seasonal
Employment?
A: These instances have a beginning and an end. From the
start of the employment, the termination of the work has
already been made known or communicated to the
employee.
15. Do we have a law on probationary employment?
A: Under the LC, it speaks on the period of probation. It
provides for a ceiling of 6 mos. that a regular worker may be
placed under probation.
16. Why is it fixed at 6 mos. and not 8 mos. ... 10 mos.?
A: It is more than enough period to assess the employee on
his fitness to do the job.
17. Does the employer have the management prerogative to
provide a period that is shorter than 6 mos.?
A: Yes. The LC only provides for a ceiling. The employer may
fix a period shorter than 6 mos. This may be beneficial for the
worker as he becomes permanent faster. However, he has
less time to learn the standards he must satisfy .
18. Are there any laws or instances where more than 6 months
of probation is given?
A: Teachers in private educational institutions, sir.
19. What law are they covered under?
A: 2008 Manual of Regulations for Private Higher Education
and 2010 Revised Manual of Regulations for Private Schools
in Basic Education.
20. How long is the probationary period found in the manual?
(a) The teacher is a full-time teacher,
(b) the teacher must have rendered three consecutive years
of service (school year) and
(c) such service must have been SATISFACTORY;
for those teaching in tertiary level: 6 consecutive semesters (3
years)
21. Why is the period of probationary longer for those in the
private educational institutions? A teacher cannot be
regular unless they complete the 3 years. Ang haba. Why?
A: Teaching cannot be considered a regular profession. It is a
special profession. Teaching involves investing in the youth.
If you have incompetent teachers then you will have
incompetent citizens. (Make your own analogy for this)
22. Is this valid? It does not conflict with the Labor Code?
A: No, sir.
23. For non-academic personnel? Is it the 3 years or 6 months?
A: 6 months, sir.
24. What are the instances where a probationary worker
becomes regular/a regular employee? Give me an
instance.
(1) When he successfully passes the probationary period;
(2) When he is not informed of the reasonable standards of
performance to comply with to QUALIFY to become
permanent. You must be informed at the time of
engagement;
(3) He is allowed to work past the period of probation. So if
you fixed it by 6 months, and you let him work past that,
by operation of law, he becomes permanent.
25. Why must we distinguish between permanent- regular,
probationary worker?
A: Because a regular worker can be terminated only be just
or authorized cause.
26. Yes, correct. What else? What contra distinguishes regular
employees from probationary ones?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
A: A probationary worker maybe terminated because you
failed to qualify in accordance with the reasonable standards
made known to him at the time of engagement.
27. Can that be a ground to terminate a regular and
permanent worker?
A: No, sir.
28. Can a probationary worker be terminated for just cause?
A: Yes, sir.
29. Can he be terminated for authorized cause? 

A: Yes, sir.
30. W h at a b o u t a p ro b at i o n a r y w o r ke r, b a s e d o n
jurisprudence, does he enjoy security of tenure?
A: Yes, sir.
31. For what period?
A: He/she enjoys security of tenure for the period of
probation unless any of the three instances we mentioned
before occur.
32. If I hired you but I did not place you in probation, what
does that mean?
A: You become permanent, sir.
33. Now let’s go to the exceptions of regular employment, we
mentioned there are 2 in the law, we said they are not
exclusive, we also talked about fixed term employment
and project employment. What is meant by project
employment?
A: “...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...” (Article 295 of the Labor
Code)
34. We will now dissect that, what does that mean when we
speak of specific project or undertaking?
A: An activity which is not commonly or habitually performed
or such type of work which is not done on a daily basis but
for a SPECIFIC DURATION of time or until completion.
35. The SC said that there are two kinds of project activities,
what are they?
(1) a particular job or undertaking that is within the regular
and usual business of the employer company, but which
is distinct and separate, and identifiable as such, from the
other undertakings of the company; or
(2) A particular job or undertaking that is not within the
regular business of the corporation/company.
36. Give me an example of the first type of business. (Open
Question)
A: A school
37. What is the primary business of the school?
A: To provide quality education
38. So what would the school hire project workers for?
A: Fr. Miranda would hire project workers to create tables for
the library .
JMM: I’ll accept that example because its carried within the
USUAL TRADE OR BUSINESS. By providing education, it
goes without saying that you have to have a library. Hence if
you want to modernize that library, you can hire project
workers. Its not forever, so once the library is completed,
employment has ended.
JMM’s own example: Construction of a building, I’m the
contractor and so I can hire project workers to construct that
5-storey building. Although they perform a job that is
NECESSARY or DESIRABLE to my business of constructing
buildings, if I hire them to construct the 5- storey building
which is separate from a 2- storey building and etc. then that
could form part of a project. If they finish that certain project
then employment has ended for that project worker and I’ll
wait for another customer who’ll ask me to build another
building.
11/22/17 — EH 406
By Margil — 3 hours
Regular, probationary, project and seasonal employment.
What are the exceptions to regular employment? Why?
Project employment and seasonal employment.
EH 405 (2017–2018) Pa ge 9 of 21
Labo r
They are considered exceptions to regular employment
because they are hired only for a definite period of time.
Although their employment involve a job that is necessary
or desirable, their employment is only for a definite period.
NOTE: the third exception is the fixed term/period
employment.
What is the definite period for a project employee?
A project employee is deemed employed only for the
duration of the project.
A seasonal worker?
A seasonal employee is deemed employed only for the
duration of the season.
NOTE: project and seasonal employees enjoy security of
tenure for a definite period for which they were employed.
Beyond that period, they can be terminated. On the other
hand, regular employees enjoy security of tenure
indefinitely.
The Labor Code mentions only two exceptions to regular
employment. Is that exclusive?
No, another exception is the fixed period employment.
Why did the SC allow such exception?
The SC said that such stipulation is not contrary to the labor
code and that the parties are free to stipulate as long as they
do not undermine the employee’s right to security of tenure.
What is common between seasonal, project and fixed
employment?
There exists employer-employee relationship and that there is
a definite period for the commencement and end of the
employment.
NOTE: The enumeration on the LC on exceptions are merely
enumerations where the term of employment is implied.
Implied because in the case of a project worker = end of
project. Seasonal employment = end of season.
Are you telling me that when a project worker is hired for a
particular project, he does not become a regular
employee after the project?
Yes. At the end of the project or season or the fixed period
set by the parties, the employee does not become a regular
employee.
Do we have a landmark case illustrating the fixed term
employment?
The case of Brent School vs. Zamora.
What is regular employment?
Regular employment is an employment where the employee
has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the
employer.
What is the controlling test to determine that employment
is regular?
The primary test to determine whether an employee is a
regular employee or not is that there should be a
reasonable connection between the activity performed by
the employee and the employer’s usual trade or business.
Is a casual employee defined under the LC? How?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
Casual employment as defined in the LC is an employment
where an employee is neither regular, project of seasonal.
As defined the IRR, it is where an employee performs a job
or service that is merely incidental to the business of the
employee and that job is for a definite period made known
to the employee before the commencement of his job.
When does a casual employee become regular?
A casual employee becomes a regular employee if he has
rendered at least one year of service, whether such service is
continuous or broken. However, the employee shall only be
considered a regular employee with respect to the activity in
which he is employed and his employment shall continue
while such activity exists.
NOTE: If the job or activity for which he is employed ceases,
he can be validly terminated.
Additionally, even if the services rendered by the employee
was not continuous, as long as it totals to one year, then he
is deemed a regular employee with respect to that activity.
Ex: On the first year, he performed 8 months of work. On the
second year, 6 months, and on the 3rd year, 10 months. This
is so that the employer cannot “chop chop” the employee’s
employment to avoid making him a regular employee.
It is a management prerogative on what employment to offer
a person. But make sure to understand the consequences of
making an employee a regular or casual employee. You
cannot easily terminate a regular employee, your grounds
must be under authorized or just causes. However, a casual
employee may be terminated if the job or activity for which
he is employed ceases and that would not be considered
illegal dismissal.
What is a regular employee?
A regular employee is one who holds a regular employment.
A regular employee may be a probationary or permanent
employee.
Does the LC define probationary employment?
NO. Only the IRR. Probationary employment is an
employment where an employee is made to undergo a trial
period, at the end of which, the employee assesses his
performance. If his performance is satisfactory, he becomes
a regular employee. If his performance on the other hand is
not satisfactory, he can be terminated.
NOTE: A probationary employment is a regular employment,
only that there is a trial period.
What is the definition of the word probation?
It is the trial period during which the employer determines the
fitness of the employee to qualify for regular and permanent
employment.
Is there a period for probation?
The LC provides the period of probation to not exceed 6
months.
Is the 6 months a min or max period?
Maximum period.
Can that period be reduced?
Yes. The period can be reduced to less than 6 months, and it is
valid and allowed by law since it is favourable to both the
employee and employer.
For whose benefit is the probationary period? Why?
Both the employee and employer.
EH 405 (2017–2018) Page 10 of 21
Labo r
Employer – gives the employer an opportunity to assess the
performance of the employee.
Employee – he will be given time to learn, adopt or adjust to
the job.
Why is there a period provided by law?
Without a period that speaks to a trial period, that would be
unfavourable to both parties since they would not be able to
determine whether how long they will assess the
performance.
NOTE: Once you sign an employment contract, and it
stipulates a probationary period, then it is binding.
Does the LC expressly allow a period longer than 6 months?
Yes, if the employment involves an apprenticeship agreement
stipulating for a longer period of probation.
Other instance where the period is longer than 6 months?
The law also allows an extended probationary period for
academic personnel (teaching personnel) in private schools.
For those teaching in primary and secondary level (2010
Revised Manual of Regulations for Private Schools in Basic
Education), the period of probation shall not be more than 3
consecutive school years of satisfactory service.
For tertiary level, (CHED Memo circular No. 40 Series of
2008), probationary period of not more than 6 consecutive
regular semesters of satisfactory service. If trimestral, not
more than 9 consecutive regular semesters (or basin
trimester, diba semester is 5 months, and trimester is less
than that, kamo nlng search sa memo haha) of satisfactory
service. So still 3 years.
Why is that allowed in educational institutions?
This is allowed because the job of teaching personnel
demands that the teacher must be competent and should
be a master of what they are teaching before they can
become regular and permanent employees. Teachers are
the grassroots of all professions.
Does the LC allow the employer to fix the period longer
than 6 months?
No. The period of the employment cannot be extended up to
6 months since the wording of the LC is not merely
permissive by mandatory.
Is there an exception to this? A case that allowed the fixing
of longer than 6 months?
However, the SC has laid down an exception In the case of
Buiser. If the parties expressly agree as when it is a company
practice or the nature of the job requires special skills that
requires a longer trial period.
Why does the law provide the period to be 6 months?
The law allows 6 months because the law believes that it is
more than adequate to determine the employee’s fitness for
the job and to protect employees from employers who will
fix a period that is too long.
Why do employers commonly use and maximize the 6
months?
On the side of the employer, they usually want to know the
attitude of the employee over time. Some maximize it so
that the employee will not enjoy regular and permanent
employment (so, to exploit the employees. Because
remember, it is favourable for the employee to become
regular and permanent in a short period of time).
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
NOTE: In most establishments, there are usually different
benefits for regular and permanent employees that they
don’t extend to regular and probationary employees (ex:
allowances). When you are hired under probation, there is
no certainty that you will pass and become a regular and
permanent employee.
So, if you think that the job is easy, then you can agree to
shorten the period for probation. If the job is hard, then it
might be better if you maximize the period.
Does the LC allow the extension to more than 6 months?
As a general rule, no.
Exception to this?
In the case of Mariwasa Manufacturing, the employee failed
to successfully pass the standards to become a regular and
permanent employee. The employee pleaded for another
chance and asked for an extension, acting on that request of
the employee, the employer extended the period (over 6
months). After the extension, employee still failed. He then
sued the employer after failing for the second time. SC said
that what the employer did was an act of liberality. So no
violation of the period provided in the LC even though the
probationary period was extended.
What should the employer do before putting the employee
under probationary employment?
You must inform the employee at the time of the engagement
of the service about the standards required that he has to
meet to become a regular and permanent employee.
NOTE: These standards must be attainable and reasonable.
You cannot expect a probationary employee to master skills
for a highly technical job in just one month. That is not a
reasonable standard. Example or reasonable standards: in
case of a teaching personnel, you must be competent and
must have mastery of the subject.
When should these standards made known to the employee?
Made known to him “at the time of his engagement”.
Explain “at the time of engagement”.
Time of engagement is to be interpreted as at the time the
employee is hired and employed or at the time he is made
to work.
Why should the employee be informed of the standards
required?
This is because if it is not made known to the employee, the
employee will not know whether he is qualified for the job.
What is the effect of a probationary employee is not
informed of the standards at the time of his engagement?
He becomes a regular and permanent employee. This is
stated in the IRR.
Book Six, Rule 1, Section 6(d): In all cases of probationary
employment, the employer shall make known to 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.
Exception where even if the employee is not informed of
standards, it is still okay and the employer is deemed to
have complied with the law because the employees ought
to know?
EH 405 (2017–2018) Pa ge 11 of 21
Labo r
Self-descriptive jobs (e.g. maid, cook, driver or messenger).
Even if you are not informed of the standards at the time of
engagement, you are still not considered regular and
permanent after the probationary period since the
employee ought to know about these standards. The
standards here are inherent. Ex: If you are a driver, the
employer need not tell you that you have to drive safely as a
standard for you job, that is inherent on the job.
Is it okay if you make it known to the employee after 1
week that he has started?
Yes. If the standards are made known to the employee a
week after the start of the job, then the standard can still be
imposed against the employee since it was made known at
a reasonable period right after engagement. As provided in
one case, there is a reasonable time given to the employer
to inform the employee about the standards required to be
a regular and permanent employee. “Reasonable period”
means early phase of the probation (like after one week or
even 10 days as provided in the case).
Is probationary employment contractual in nature?
Yes since the period of probation is fixed or definite.
If the start of the probationary period is on Jan 1, 2018,
when does it end if the period is set for 5 months?
The end of the period must be on June 1, 2018.
What is the significance?
If the employee is allowed to work beyond the period of
probation regardless of his performance, then he becomes
a regular and permanent employee. This is why it is
significant to know the end of the period of probation.
When does a probationary employee become regular and
permanent?
1. If the employee is allowed to work beyond the period
of probation regardless of his performance, then he
becomes a regular and permanent employee.
2. If the employee successfully passes the standards
made known to him at the time of engagement,
then he becomes a regular and permanent
employee at the end of the period.
3. If the employer fails to inform the employee of the
standards required for the job.
4. If the employer fails to evaluate the employee during
the probationary period. (addition ni sir, pero diba
pare-pareha ra sa number one??????? Maminaw
nlng ta niya kay mas kamao siya)
When does probationary period begin?
The period of probation commences or starts to run from the
date the employee started working.
You need to start working before the period starts to run so
the employer will know your performance. Exception: when
the contract provides otherwise.
Is there an instance in counting the period of probation we
need to count the exact number of days for the
probationary period?
Yes. Whenever the month is specified, as provided in the Civil
Code.
NOTE: this is an exception kay ordinarily, if not specifically
provided ang name sa months, 6 months can be counted as
just the 6 consecutive months from the start of work
(Example: Jan 2018 start, 6 months probationary period, so
end kay sa July 2018. But if specifically stated and name sa
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
months like January to June, then count exactly 180 days to
determine the period of probationary employment).
Define project employment.
Project employment is one where one is engaged in a
specific project or undertaking, the completion or
termination of which has been determined at the time of the
engagement of the employee.
Elements of project employment.
(1) you are employed for a specific project or undertaking;
and (2) the completion or termination of which has been
determined at the time of the engagement of the employee.
How did the SC define specific project/undertaking?
What are the 2 types of activities for a project employee?
The SC said that when you speak of “project/activity”, there
are two types: 1) an activity that is within the regular or usual
business of the employer but which is distinct and separate
and identifiable as such from the undertakings of the
company; 2) a particular job that is not within the regular or
usual business of the employer but which distinct and
separate, and identifiable from the ordinary or regular
business operations of the employer.
Give example of the first type of activity.
Is he entitled to separation pay upon completion of project?
No.
Example for the second type of activity.
Does is matter if project exceeds 1 year?
No. NOTE: The one year period is only relevant when it comes
to casual employment. Project employment is one of the
exceptions of regular employment.
Define seasonal employment.
Seasonal employment is one where the work or service to be
performed is seasonal in nature and the employment is for
the duration of the season.
What is a seasonal industry or undertaking?
1) Dependent on climatic or natural causes and 2) activity is
agricultural.
NOTE: So if your undertaking exists all year, then it’s not
seasonal. Also, “Christmas season” is not the season
contemplated by law. It must be due to climatic or natural
cause. Example: if you have a business in Batanes, you can’t
open it up for the entire year because of the typhoons
during certain months. So your business will only be open
for a certain time in a year. Here, the cause is climatic or
natural causes.
Duration of seasonal?
During the season.
After the season?
He is terminated.
EH 405 (2017–2018) Pa ge 12 of 21
Labo r
Instance where a project worker becomes regular worker?
A project employee becomes a regular employee when there
is repeated and continuous rehiring of project employees
even after the termination of a project.
If a seasonal worker is hired every after season what
becomes of him?
A seasonal employee becomes a regular seasonal employee
if he is hired season after season.
What happens during off-season?
Employment is suspended.
If the employer does not rehire a regular seasonal
employee?
The employee is deemed to have been illegally dismissed by
the employer.
11/22/17 — EH 404
1 hour class
Q: What is a probationary employment?
A: It is a kind of employment where an employee is placed on
a trial period and at end of which, the employer will assess if
the employee’s performance is satisfactory or not. If it is
satisfactory, then he becomes a regular permanent
employee. If not, then he will be terminated.
Q: Under the law is a probationary employment contractual in
nature? If it is, why? If not, why?
A: Yes, because probationary employment is regular but the
employee is placed on a trial period but it is contractual in
nature because the period is fixed in which the performance
is assessed and evaluated, in the sense the period of
probation is set by the employer. BUT it is a type of regular
employment.
Q: Does the law allow the employer to fix the period of
probation to lesser than six month?
A: Yes.
Q: So what happens to the employee when he passes the
period of probation?
A: He now becomes a regular and permanent employee.
Q: Does the Labor Code allow the fixing of the period of
probation to more than/ longer than six months?
A: Generally, NO, “…should not exceed six month”
Q: What are the exceptions to such, found under the labor
code?
A: There are none found in the law, sir.
Q: If there is none in the law, we now move to jurisprudence!
A: “Generally, the probationary period of employment is
limited to six months. The exception to this general rule is
when the parties to an employment contact (1) agree
otherwise, such as when it is established by company policy
or (2) when the same is established by company policy or (3)
when the same is required by the nature of the work to be
performed by the employee.
(Busier et al v. Hon Vicente Leogardo Jr. and General
Telephone Directory Co.)
*read page 801 of Azucena’s book for the details of this case.
Q: The Labor Code provides that the period of probation shall
not be more than six months, does the labor code allow the
EXTENSION of such to more than six months?
A: When the employee is given a chance/ by the gratuity of
the employer, to prove that he can successfully meet the
standards after having failed to do so during the original
period.
Q: You mentioned that in a probationary employment that the
employee should be given the reasonable standards at the
time of his engagement, why is that? Give me an example of
a reasonable standard?
A: So that the employee will be aware of the standards to
comply with/ meet to qualify as regular.
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
Example given: Reasonable standards for a teacher:
Competency, mastery of the subject, compliance with rules
on attendance (Think of your own reasonable standard.)
Q: Without informing the employee of these standards, does
that have any legal implication?
A: If the employee is not informed, he is considered regular.
“IRR Provision on Probationary employment
Rule I Termination of Employment and Retirement
Sec. 6. Probationary Employment. -
xxx
(d) In all cases of probationary employment, the employer
shall make known to 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.”
Q: The law requires that in case of probationary employment,
that the reasonable standards must be known made known at
the time of engagement, when you say time of engagement,
what point in time is it exactly?
A: At the time that the employee is told that he or she is
hired, atty. Then you will be told that you are on probation
and then you will be informed of the reasonable standards.
Time you engage as employee.
Q: A probationary employee was informed on the standards
only week after engagement, in the early stages of his
probation. Does he become a regular employee given the
provision of law?
A: No. The employee remains to be a probationary employee
notwithstanding the delay. As long as the standards were
communicated within reasonable time.
Note: Look for the SC case that deemed the 10 days
reasonable.
Q: Is there an exception that the standards should be made
known?
A: Yes. When it is self-descriptive; maid, cook, driver or
messenger. (Robinsons Galleria/Robinsons Supermarket v.
I.R. Sanchez, G.R. No. 177937)
In these cases, the standard of performance is implied.
Q: Probation shall not be more than 6 mos. The period shall be
counted from when?
A: From the time the employee starts working.
Q: Why?
A: The purpose of the period of probation is to see if the
employee is fit for the job or that he meets the standards. It is
only when the employee starts working that this can be
seen…
Q: What is the exception that the period is reckoned from the
time the employee starts to work?
A: When the employment contract provides otherwise – one
that is favorable to the employee.
Q: A job was offered with a probationary period of 6 mos. to
commence from January 1, 2018. When will it end?
A: July 1, 2018.
Q: Is it important to determine the end of the period of
probation?
A: Yes. LC Art. 296 xxx An employee who is allowed to work
after a probationary period shall be considered a regular
employee.
This is regardless of the performance as long as the
employee was allowed to work the probationary period. The
employee is considered regular by operation of law.
Q: In what instance, if any, that the exact number of days
would have to be considered to determine the end of the
period?
(Open Question)
11/23/17 — EH 402
By Jemar — 2 hours
EH 405 (2017–2018) Pa ge 13 of 21
Labo r Mi dt e r m s R e c i t s Atty. J MM

TOPIC 3 Yes. At the end of the season, he will not become a regular
employee.
1.) Under the LC, what are the kinds of employees?
Regular and Casual 25.) Does jurisprudence tell us that they also have security of
tenure?
2.) Define each, without reading the Labor Code Strictly, No. Article 294 only states REGULAR EMPLOYEES.
TN: Desirable “OR” Necessary, not “AND” However, the constitution guarantees the security of tenure
3.) If the company involved is a private educational institution, WITHOUT CLASSIFICATION. Jurisprudence therefore states
what job is necessary? that project and seasonal employees enjoy security of tenure
Teaching limited to the existence of the project or season.

4.) the teacher, is he a regular or casual employee? 26.) Under our jurisprudential jurisdiction, is the non-regular
employment limited only to two(2)?
Regular
No, we also have the fixed-term/fixed-period employment.
5.) Same institution, what is a desirable job? 27.) How did we get that?
Librarian
In the Supreme Court ruling in the case of Brent School vs.
6.) So what is Maam Arlene? Zamora
Regular Employee 28.) What job did he have?
7.) Employer is a corporation, how will you determine their Athletic Director
primary business?
29.) was there a contract for his employment term?
Articles of incorporation
Yes, five(5) years.
8.) If it is only a single proprietor, how will you know?
30.) was he a regular employee?
By what it does actually, as well as its registration with the DTI
No. this landmark case added the new exception of a fixed-
9.) What is Casual employment? term/period employee. In this case, there was no intent to
LC: Not regular, project nor seasonal employment circumvent the security of tenure.
IRR: Job, work or service is merely incidental to the business 31.) Athletic Director: my job is necessary and desirable to the
and definite period made known to the employee institution, therefore, it is a regular employment. What did the
10.) In a private educational institution, what is an example of SC say to this?
a casual job? Despite the fact the employee is performing a job which is
Security guards, janitors, gardeners necessary or desirable to the institution, the decisive
determinant is not the nature of the job, but if you knowingly
11.) Why will you classify a security guard as a casual agreed to agreed to fix the term of your employment.
employee?
The primary business of the school can be discharged 32.) Where can we find Brent School?
without the security guard. It is merely incidental. Baguio City
12.) If you do not make an employment contract classifying the 33.) In regular employment, under jurisprudence, what is the
guard as a casual employee, does that make him a regular primary or controlling test whether the employment is regular
employee? or not?
No. written employment contract is not an essential part in REASONABLE CONNECTION between the particular-
determining ER-EE relationship. 34.) A regular worker may either be a probationary or a
13.) In case of casual employment, how long is the permanent worker. What is meant by a probationary worker?
employment? A regular worker who is placed on a trial period, at the end
Co-terminus with the activity in which he/she is employed of which, the e m p l o y e r e v a l u a t e s t h e e m p l o y e e s
for. performance. If satisfactory, hired as a permanent worker, if
not satisfactory, terminated.
14.) What if he has rendered at least one(1) year of service,
what happens to him? 35.) Whose prerogative is it to place the employee as
Becomes a regular employee, subject to the activity for probationary?
which he is employed, continues to exist. The employer’s prerogative
15.) What is the reason or the essence of this law? Why one(1) 36.) Can the employer hire an employee and classify him as a
year? regular employee starting at day 1?
If you keep a casual employee for one(1) year, it is indicative Yes
that his services are necessary or desirable in your business. 37.) What is probation law in Criminal Law?
16.) What are two(2) classifications of regular workers? GG Ez
-by nature of their work 38.) How long does the labor code authorize probation?
-by length of service (at least 1 year) Maximum of 6 months. Counted from the first day of
employment, actually.
(NEXT STUDENT)
39.) What is the reason for this?
17.) What are the exceptions to regular employment? So that the employer may assess and evaluate your skills and
Article 295 – Project Employment and Seasonal Employment performance. To determine the start and end of
18.) How does the Labor Code define seasonal employment? probationary period.
employment is seasonal in nature and is for the duration of 40.) What is the exception?
the season Contract states otherwise
19.) Does a seasonal worker perform a job which is necessary (NEXT STUDENT)
or desirable to the employer?
Yes 41.) Can the probationary period be shorter than 6 months?
20.) but? Yes
Only for the duration of the season 42.) Whose consent is needed?
21.) Ending of a project employment? Employer and Employee
Ending or completion of the project 43.) For whose benefit is this?
22.) For seasonal employment? Both.
End of the season Employer: to assess employee
23.) Does the project worker become permanent or regular Employee: to reach the required standards
upon the completion of the project? SC: Probationer
No. exception to regular employment. They are NON- 44.) Is it valid to unilaterally shorten the probation period?
REGULAR EMPLOYEES. Even if it is one year or more. Not valid.
24.) is it the same for a seasonal employee?
45.) Give a valid or authorized cause to terminate the
employment of a probationer.

Compiled by: Sandee

Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert EH 405 (2017–2018) Pa ge 14 of 21
Labo r
Probationer failed to meet the standards of the employment.
You do not need to wait for the 6th month.
46.) The maximum period says 6 months. How many days is
that?
180 days
47.) Why do you think the LC fixed it to 6 months?
It is more than adequate to determine the fitness to qualify of
the probational employee.
48.) Under the Labor Code, is there any instance to where you
can increase the probation period to more than 6 months?
Unless it is covered by an apprenticeship agreement
stipulating a longer period. (Article 296)
49.) Outside the Labor Code, are there any other exceptions?
CHED Memorandum. Employment of Academic Personnel.
50.) What governs the academic personnel?
Manual for registration
51.) For non-academic?
Labor code
52.) What is the probation period for basic education?
(always use NOT MORE THAN) 3 school years of satisfactory
service
53.) In tertiary level?
Period of probation shall not be more than 6 successive
semesters of satisfactory service, (9 for trimester)
54.) Why is it longer for academic personnel?
It is not an ordinary profession. Academics requiremastery
and competence.
55.) In what instances can a probationary worker be
considered regular?
-When he successfully passes the standards required
-When he is allowed to work beyond the period of
probation, regardless of performance
-When the employee was not informed of the reasonable
standards to qualify for regularization during engagement
-If the employer fails to evaluate the performance of the
probationer
(THESE ARE NOT FOUND IN THE LABOR CODE)
56.) If I offer you employment as a accounting supervisor,
probational period of 5 months starting on January 1, 2018.
When is the last day?
June 1 2018.
57.) Within the period, how often should the employer
evaluate the performance of the probationer?
Not provided for by law. It is management prerogative. No
hard and fast rule in evaluating probationers
58.) In what instance should we count the exact number of
days in a month?
When it is specifically designated in its name(month).
Provided by the civil code.
(NEXT STUDENT)
59.) What is meant by project employment?
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
60.) Informed of what?
Standard of employment
61.) For a teacher, what would be your performance
standards?
(Opinion based) Mastery of the subject
62.) is that susceptible to evaluation?
Yes
63.) When are the standards considered reasonable?
When it is attainable and related to the job
64.) Are there exceptions to the necessity to inform the
employee of the standards?
Self-descriptive jobs where the standards are inherent and
implied
65.) At what point should the employer inform the employee
of the standards?
At the time of engagement.
66.) When is that?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
Time when you are hired or employed.
67.) What is the real test with regard the time element in
informing the employee?
Reasonable time test
11/24/17 — EH 404
2 hours
Q: How do you define a probationary worker?
A: Is a worker who has been employed on a trial period so
that the employer can determine his fitness and qualification
for the job.
Q: Is he a regular employee?
A: He is a regular employee in a sense that he performs a job
that is necessary and desirable for the business of the
employer.
Q: So you’re telling us a regular worker can be placed on
probation?
A: Yes.
Q: May a regular worker can be place on a fixed-term
employment
A: Yes.
Q: So if you’re a regular worker, your employment can be on
a fixed term?
A: Yes
Q: If you’re a regular worker, can they fix your employment
on a particular season?
A: Yes.
Q: And that worker would be called?
A: A regular seasonal employee.
Q: If you hired that worker under a seasonal employment
contract, he is called a regular seasonal employee?
A: Yes sir.
Q: For example, the establishment is involved in the
growing of crops and I need worker who will work in the
farm to grow those crops. Can I hire those workers and fix
their employment for a particular season?
A: Yes, the LC allows.
Q: And they will be called?
A: Seasonal worker
Q: When does a seasonal worker become a regular seasonal
worker?
A: A seasonal worker becomes a regular seasonal worker
when he is called to the job upon every season. He is hired
interminnently by the employer.
Q: If you’re hired for just a particular season?
A: Seasonal employee.
Q: If I have a regular employee, one who performs his job
that is necessary and desirable. If I place his employment
for a specific project. How do we call them?
A: Project employee.
Q: Now we mention that a regular worker either be a
probationary worker or a permanent worker. So the LC
allows a worker to be placed under probation. If the ER
does that, the worker is called a probationary worker.
What’s the purpose of probation?
A: The purpose is to measure the fitness and qualification of
the employee for the particular job he is employed. It allows
the employer ample time to discern if that particular
employee would be fit for the job and qualified.
Q: So for whose benefit is the probationary period?
A: The period of probation is for the benefit of both parties.
Simply because it allows the ER to measure your
competence and at the same time, it allows the EE to
improve on qualifications that he may not have at the start of
his employment but is needed from him to continue working
in that same company.
Q: So it’s for the benefit of whom?
A: Both parties.
Q: Who fixes the period of probation?
A: It is fixed by both parties.
Discussion: If in the contract it says that your probationary
period is for 6 months, you need the employee to give his
consent. And if he gives his consent, there is a perfected
contract of employment under probation. It’s fixed by the
parties but upon the initiative of both parties. In fact, the
employer cannot unilaterally shorten at will without the
consent of the other party. It would be a breach of the
EH 405 (2017–2018) Pa ge 15 of 21
Labo r
employment contract because the probationary period is
based on the contract itself. It’s the probationary
employment contract, the law between the parties. You can’t
just change the terms without the consent of the other party,
you can mutually agree to change it but not unilaterally.
Q: The LC says that it shall not exceed 6 months and if we
speak of 6 months, that’s equivalent to how many days?
A: 180 days
Q: You did not equivalent that to the exact number of days
in each month?
A: No sir because if you simply set it at 6 months, there’s a
standard under the Civil Code that sets 1 month to 30 days.
Q: So the period of probation should not exceed a period of
6 months or 180 days. And in counting the period of
probation, it shall start when?
A: The LC says that the probationary period should start on
the day that the employee actually started working.
Discussion: Because it is only on the day the employee started
working that the employer has the opportunity to measure
the fitness of the employee. Unless agreed otherwise, then
that’s the law between the parties.
Q: We said earlier that in a probationary employment, the
law requires that the probationer must be informed of the
reasonable standards at the time of his engagement. What
is the effect if you are not informed of the reasonable
standards at the time of your engagement?
A: You are considered a regular employee from the day you
started working.
Q: Reasonable standard, a standard involving what?
A: A reasonable standard of fitness of the job.
Q: So that’s a work standard or performance standard?
A: Yes sir.
Q: Because every employer usually sets a performance
standard that the worker must meet and qualify to become
regular and permanent. So for example, a teacher in a
school and you are the school authority, what standard do
you have in mind for them to be regular and permanent?
A: A standard that the teacher must have mastered the
subject.
Q: You can make up any standard that is related to the job
and reasonable. And when we say reasonable, we mean?
A: A standard that is achievable as to the goal. It is not unjust
and impossible to attain.
JMM: So it must be attainable and measurable.
Q: At what stage should the probationer be informed of
these reasonable standards?
A: At the time of his engagement.
Q: Precisely at what point in time?
A: When he started working
Discussion: It could refer to the time you were hired or
employed. It could refer to when he started working.
A: However it must also be reasonable with regard to the time
that the employer had informed the employee of these
reasonable standards. That’s why last meeting, in one case,
we explained that 10 days was reasonable time for the
employer to explain to the employee of the reasonable
standards. Because you must also be reasonable on the part
of the employer on his effort to let the employee known.
Discussion: 10 days was considered in this case as still in the
early phase of the probation.
Q: The exception to regular employment, how many are
there?
A: We have project employment and seasonal employment.
When we say project employment, these workers are hired
for a specific project or undertaking whose completion of
which is determined at the time of his engagement. We also
have a seasonal employee who’s employed for that
particular season, whose duration of employment is seasonal
in nature. When we talk about seasonal employment, its
employment is only for the duration of the season.
Q: Is that the only two?
A: Under the LC, those are the only two.
Q: Are you aware of any other type of employment that is
similar to project or seasonal employment?
A: A fixed-term employment.
Q: What is common between a fixed-term employment,
project and seasonal?
A: It is the duration of employment.
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
Q: Why is there a duration of employment of these kinds of
employment?
A: Yes, when we talk about project, it is only for the duration
of the project. When we talk about seasonal, it is only for the
season. And when we talk about fixed-term, it is for the
duration set by both parties.
Discussion: But the SC said, why do you have to add one?
Because the enumeration is not exclusive. Project and
seasonal are just instances when a period is implied so we
could add additional instances.
Q: Does the Labor Code absolutely prohibits the parties
from fixing the period of employment?
A: No absolute prohibition,
Q: But the provision says “The provisions of the written
agreement to the contrary notwithstanding and regardless
of the oral agreement of the parties, an employment shall
be deemed to be regular” How did the SC in Brent v.
Zamora address that issue?
A: SC said it is true that the Labor Code strictly makes that
qualification but that provision must be interpreted to mean
that if its intended to circumvent the workers security of
tenure then its absolutely prohibited in any oral or written
agreement. But it in this case, there was no intent on the part
of the school to circumvent the employee’s security of
tenure. There was no moral dominance employed by the
school on the athletic director. They stand in equal footing
and he was intelligent enough to know that what he’s
entering into is a fixed term.
So if the employed places you under a oral/written contract,
that is intended to deny you the right to security of tenure,
then that is when they shall expressly prohibit that kind of
employment arrangement.
Q: How long was the period of employment?
A: 5 years
Q: What is project employment?
A: It is a specific project or undertaking, its completion and
termination is determined at the time of the engagement of
the employee.
Q: Are there existing guidelines involving construction
industry?
A: Department Order 19-93 “GUIDELINES GOVERNING THE
EMPLOYMENT OF WORKERS IN THE CONSTRUCTION
INDUSTRY”
Q: Under that existing guideline, how is a project worker
defined?
A: Project employees are those employed in connection with
a particular project thereof and whose employment is co-
terminus with each project they are assigned.
Q: What is the duration of project worker’s employment?
A: The employment is for the duration of the project or
undertaking which is necessary or desirable to the nature of
the business of the employer.
Q: Does a project worker perform a regular type of
employment, something that is necessary or desirable to
the trade or business of the employer?
A: Yes, but only for the duration of the specific project.
Q: Under that policy instruction, what is the specific
reportorial requirement?
A: Employer should report to the regional office of DOLE, that
had jurisdiction of the area, that the project has already
ended.
Q: Can you apply that reportorial requirement to non-
construction industries?
A: Yes. SC said in one case, that there’s no reason why we
cannot apply this reportorial requirement to non-
construction industries.
JMM: if you have project workers just make sure that you also
comply with the reportorial requirement even though its
customized in workers for construction industry. Because it
is indicative, that you hired true project workers.
Q: How does the law describe a seasonal employment?
A: One which involves a work or service which is seasonal in
nature and the duration of which is only for that season.
Q: What is an example of a seasonal industry or
undertaking?
A: Agricultural industry
JMM: The law describes the seasonal employee as it could
either be one that is agricultural or it could be one that the
operation of the company is only limited to a certain regular
recurring part of the year and closes during the remainder
of the year due to climatic and other natural causes.
EH 405 (2017–2018) Pa ge 16 of 21
Labo r
Q: Once you hire a worker and place it under regular
employment, can you later on convert its status and make
it a project employment?
No. It will contravene the employee’s right to security of
tenure. Since initially your employment is for an indefinite
period and if your status is converted into a project or fixed
term then that’ll make you a non-regular employee. That’s a
circumvention to employee’s right to security of tenure.
Q: When you are a project employee, what is your security
of tenure?
A: The duration is only limited to the existence of that
particular undertaking.
Q: When you hire a probationary worker and after
successfully passing that period of probation, can you
place him under a fixed term employment?
A: No. Because categorically, a probationary employee is a
regular employee but only for the trial period for which that
employee has to satisfy the standards to make him a regular
employee.
Q: By placing him into a fixed-term employment, what in
effect are you doing?
A: You are converting a regular employee into a non-regular
employee.
Q: When you hire a regular worker and place him on
probation, does the law tell the employer how often should
he evaluate the performance of the worker?
A: The law does not prescribe a particular schedule. The
employer could evaluate anytime as long as its within the
probationary period.
Q: Upon evaluation, can you terminate the employment of a
probationary worker?
A:No because its during the evaluation that the employee
would be appraised on his performance on how he fares on
the standards that was demanded from him.
Q: An exception where you can terminate a probationary
employee without evaluating his performance?
A: For just and authorized causes
Q: Is just cause the same as authorized case?
A: No
Q: Give me the terms of termination of employment, for a
probationary worker and a regular and permanent worker?
A: Probationary worker
-failure of the probationary employee to meet the standards
to become regular and permanent.
-Just and authorized causes
Regular employee
- just and authorized causes
Q: Determining the employment status of a worker is
essentially a management pregogative, can you tell us if
there are other management prerogative that can be
exercised aside from hiring and employment, classifying
the employment status of the workers?
A: Other management prerogatives also include the
promotion, demotion, transfer and termination.
Q: Is promotion written in the labor code?
A: No
Q: Then why is it a management prerogative?
A: It is because it is an inherent right of the employer
Q: What does promotion mean?
A: It is the scalar assent or advancement from one position to
another that carries with it additional responsibilities
however it may or may not include an increase in the salary.
So if you’re promoted, you cannot demand as a a matter of
right that your salary should be increased.
Q: What could be the purpose why one is promoted?
A: It is a recognition of an employee’s skills.
Q: Can you compel an employee to accept a promotion?
A: No, because the nature of promotion is of a gift or
donation. And so for a promotion to be valid, there should
be a notice of acceptance from the part of the employee.
The employer cannot just impose upon it.
Discussion: Promotion should be coming from the initiative of
the ER and not the result of some application by the EE.
Essentially, it should be based on performance or based on
one’s merits.
Q: The opposite of promotion is?
A: Demotion.
Q: Is that written in the Labor Code?
A: No, it is not written.
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
Q: So we have to define it on our own. What is demotion?
A: Demotion is the movement from one position to another
which carries with it diminution in duties, rank, status but may
or may not be accompanied by a reduction of salary.
Q: When you are demoted to a lower position that will
affect your security of tenure. Is that subject to the
absolute prerogative of the employer?
A: No, it is subject to several limitations.
It must be:
1) For a VALID CAUSE
2) Must not be ARBITRARY on the part of the ER
3) It should pass the test of REASONABLENESS, EQUITY and
GOOD FAITH
4) Must observe DUE PROCESS – must be given opportunity
to explain why he/she should not be demoted
Q: What is Transfer? Is this found in the Labor Code?
A: No, it is not found in the LC. It is defined as the lateral
movement from one position to another of equivalent rank,
level or salary, without break of service.
Q: Based on jurisprudence, what is the reason for
employers on the right to transfer?
A: An employer can exercise the right to transfer in order to
maximize the service of the employees and that based on
the employee’s qualifications or performance, he deems it
best to transfer such employee.
Q: Are there any limitations?
A: Yes.
Must be for a reasonable cause
Must not be inconvenient on the part of the employee
Must not be prejudicial to the employee
Must not involve demotion of rank or status
Must not be motivated by discrimination
Must not be made in bad faith
Must not be used as punishment without sufficient cause
Q: Can I transfer an EE who joins a labor union?
A: No because that would tantamount to constructive
dismissal and unfair labor practice. There must be a valid
cause.
Q: If the employee is found to be constructively dismissed,
what reliefs may the employee be entitled to?
A: Reinstatement, backwages and damages.
Q: What about termination? Is this regulated by law?
A: Yes. It is found in the Labor Code. It is a right but it is not
absolute as it is subject to several limitations.
Q: Why is it not absolute? Why is the law regulating it?
A: Because the ER and the EE are not on equal footing and if
there is no law that would regulate termination, then the ER
can terminate the EE without cause and the Constitution
provides for a Protection to Labor Clause.
Q: What are the requirements to effect a valid termination
or dismissal?
A: Generally, the ER must observe SUBSTANTIVE DUE
PROCESS and PROCEDURAL DUE PROCESS.
Q: What is substantive due process as differentiated from
Procedural Due Process?
A: Substantive due process refers to the existence of Just
and Authorized Causes.
Procedural due process refers to the manner of effecting the
dismissal.
Q: Under the LC, the EE enjoys the right to security of
tenure?
A: It is the right of the worker or employee to continue with
his employment until he is terminated for a Just or
Authorized Cause.
Q: The LC classifies the substantive due process into two—
Just and Authorized Cause. What are the Just Causes and
the Authorized Causes?
A: (Note: memorize daw)
Just Causes
1) Serious misconduct or willful disobedience to lawful
orders of ER
2) Gross and habitual neglect of duty
3) Fraud or willful breach by the employee of the trust
reposed in him by his employer
4) Commission of a crime by the employee against the
person of his employer
5) Other analogous causes
EH 405 (2017–2018) Pa ge 17 of 21
Labo r
Authorized Causes
1) Installation of labor-saving devices
2) Redundancy
3) Retrenchment to Prevent losses
4) Closing or Cessation of Business Operation
Q: Does the LC provide for other analogous causes in
authorized causes?
A: No, the LC is silent.
Atty: Now it is easy for us to study the just and authorized
causes because of the DO 147-15. They even enumerated
and defined them.
Q: How does the LC describe the procedural due process
requirement for the termination in just causes?
A: Under the LC, the procedural due process for just causes is
that it must observe the twin notice rule and giving EE ample
opportunity to be heard.
Q: How did the SC describe the procedural due process
based on just causes?
A: It describes the EE’s right to prior notice and hearing.
Q: How does the LC describe the procedural due process
requirement of termination based on authorized causes?
A: Service of written notice to the employee 30 days before
effectivity of termination and separate notice must be sent to
the DOLE at least one month or 30 days from effectivity of
termination.
Q: In termination based on authorized cause, what is the
duty of the employer?
A: Must pay separation pay to the workers.
Q: SC described this requirement as?
A: 30-day prior notice rule.
11/27/17 — EH 405
By Marla — 1 hour
The Supreme Court mentioned that projects involve two types
of activities. What are they?
(Page 35 of Spectra).
I offer you employment as a project manager in connection to
the buildings of my clients. Period. How would you classify
yourself?
Regular employment.
My example involved a construction company. Are there
guidelines specifically for kinds of employment the
construction industry?
Yes. DO 19.
Under DO 19, how are workers classified?
Project and non-project.
Who are considered non-project?
They are those employed without reference to any particular
construction project or phase of a project.
How are non-project employees further classified?
Probationary, regular, and casual.
In our former example, how are you classified?
Regular.
Why are you not casual or probationary?
I am not a casual employee because my work is not incidental
to the business of my employer. Furthermore, I am not a
probationary worker because I was not given a trial period.
What is seasonal employment?
One where the work or service to be performed is seasonal in
nature and the employment is for the duration of the season.
How do you distinguish this from regular employment?
Seasonal employment is an exception from regular
employment. It is coterminous with a season. On the other
hand, regular employment has an indefinite ending.
Can a season last a whole year?
No. A season involves periods of months within a year.
Who promulgates IRR?
The Department of Labor and Employment.
Does the IRR have a definition of seasonal employment?
Yes. Same words as in the Labor Code.
Some authors said that seasonal employment involves a
seasonal industry. What are the two instances when an
industry is seasonal?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
The two instances are 1) when it is dependent on climatic or
natural causes; that is, it involves regular, annually recurring
parts of the year, and 2) when it is an agricultural activity.
Take the example of additional workers hired by department
stores during Christmas time. Would you hire them as
seasonal?
I would hire them as fixed term.
Why not hire them as regular employees?
The need for their services is only limited to the demands of
the Christmas festivities. This season does not last forever.
Thus, if I hire them as regular workers, I would need to keep
them forever.
Why not hire them as casual workers?
No, because their jobs are not incidental to the business of
the employer, but necessary and desireable.
Can you hire them as project employees?
No, because there is no specific project or undertaking. The
Christmas festivities is not analogous to a project.
How do you define fixed term employment?
It is when an employee performs work that is usually
necessary or desirable to the business of the employer,
wherein the parties agreed to fix a period for the
employment.
How do you distinguish fixed term from project?
The former does not refer to the completion of a specific
project, but rather a period of time known and agreed upon
by the parties during engagement.
12/1/2017 — EH 405
By Marla — 1 hour
What are the requirements prescribed by law to dismiss an
employee?
The requirements prescribed by law for a valid dismissal are
substantive due process and procedural due process.
What is substantive due process?
It refers to the existence of a just or authorized cause.
What is procedural due process?
It refers to the requisites of prior due notice.
What are the just causes for dismissal under the Labor Code?
Under the Labor Code, the just causes for dismissal include
serious misconduct or willful disobedience, gross and
habitual neglect, fraud or willful breach, commission of a
crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly
authorized representative, and other causes analogous.
What are the authorized causes?
The authorized causes are installation of labor-saving devices,
redundancy, retrenchment to prevent losses, and closing or
cessation of operation of the establishment or undertaking.
OPEN: What do you understand by misconduct?
Misbehavior, wrong actions, breaking the rules.
When is misconduct a just cause for dismissal?
When it is serious.
Does the Labor Code define serious misconduct?
No.
Under jurisprudence, what is serious misconduct?
It is improper conduct, willful in character, which transgresses
some established or definite rule of action. By willful, it
means there was intent to commit a grave wrong and
misbehave.
If a cashier misappropriates money in order to buy an Iphone,
can that be considered serious misconduct?
Yes. The money the cashier handles belongs to the employer,
not to him. He knows that misappropriating money is bad,
yet he proceeds to do so.
Must willful disobedience be work-connected?
Yes, because the complete line is “willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work.”
OPEN: What do you understand by disobedience?
Not following instructions, not following orders.
When does disobedience become willful?
EH 405 (2017–2018) Pa ge 18 of 21
Labo r
Disobedience is willful when it is with intent.
OPEN: How do you understand neglect of duty?
Omission or failure to do what is required. NOT doing
something necessary in your work.
If a teacher doesn’t submit his grades on time, is there neglect
of duty?
Yes.
When is neglect of duty considered gross?
When it is grave or serious, as opposed to simple neglect of
duty.
Would you consider the above example with the teacher a
gross neglect of duty?
Yes.
When is neglect of duty considered habitual?
Habitual neglect implies repeated failure to perform one’s
duties for a period of time.
CITE A CASE: Must neglect of duty be both gross and
habitual? Are there exceptions?
As a general rule, yes. However, there are instances when
gross neglect of duty alone is enough for termination of
employment, when there is substantial damage or injury to
the employer. In the case of Estacio v. PELCO…
NOTE: Atty. will check the case to see if you are bluffing. If
possible, look for a unique case.
---DIFFERENT STUDENT---
OPEN: What is “breach”?
Violation
OPEN: What is “trust”?
Faith
Put together, what is breach of trust?
It is an act which violates the legal duty, trust, and confidence
justly reposed.
When is it considered willful?
It is willful when it is intentional.
What are the positions of trust?
The types of positions of trust are:
1. employees occupying positions of trust and confidence
(managers, supervisors),
2. fiduciary rank-and-file employees charged with the care
and custody of the employer’s money or property
(cashiers, auditors, property custodians)
In the RPC, what are crimes against persons?
Murder, homicide, physical injuries, rape
The Labor Code mentions fraud. Is that the same as
dishonesty? Is that among the just causes to terminate
employment?
No.
What do you understand by fraud?
There is intentional deceit in connection with work. It must
involve an employee with a position of trust and confidence.
Can fraud be a form of dishonesty?
Yes.
Here’s a story. You are a rank-and-file employee. You are late,
so you ask a fellow employee to falsify your time cards. Is that
fraud?
Yes, because you are lying about your work hours. Time is
gold, a resource which your employer is paying you for.
OPEN: Can you give an example of a case which is analogous
to serious misconduct?
Sexual harassment.
Can you give an example of sexual harassment?
It is not a mere violation of sexuality. It is an imposition, where
the employer asks the employee for sexual favors in
exchange for benefits.
OPEN: Can you give an example of a case analogous to willful
breach of trust and confidence?
A managerial employee commits an act of disloyalty, like
when they spread trade secrets to colleagues in a
competitor company.
In your example, the manager shares a trade secret to a rival
company. How do we effect procedural due process?
Read Art. 292 (277) of the Labor Code.
What do you call the first notice served to the employee?
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
It is a notice to explain, or a show cause memo.
What is the point of this letter?
To give the employee the opportunity to explain his side, and
argue why he should not be dismissed.
Why is that necessary?
It is required under due process.
How many days is the employee given to explain his side?
The Labor Code does not specify a period, but jurisprudence
such as the case of King of Kings Transport, Inc. v. Mamac
said five (5) calendar days.
If the employee does not answer within the prescribed period,
what happens to his right to explain?
It is waived. The employee has a right to the ample
opportunity to explain, not to the act of explaining itself.
Doesn’t the Bill of Rights say that nobody can be deprived of
property without due process of law? Doesn’t that include the
right to be heard?
The Bill of Rights governs the relationship between the State
and its citizens. The due process under the Labor Code is
merely statutory due process.
12/1/2017 — EH 404
2 hours
Q: When you speak of serious misconduct, what do you
understand with the word misconduct?
A:Improper conduct, misbehaviour.
Q: And when the Labor Code says “serious” misconduct, that
means?
A:Grave (really up to you what definition you will give)
Q: And when we speak of the whole phrase of “serious
misconduct”, how does the Labor Code define it?
A:Improper conduct, willful in character. There’s an intent to
do it. Transgress some rule of action.
JMM: Because there’s also a minor misconduct. So the
ground of misconduct to justify termination must be serious.
Question: Example?
A: If a security guard sleeps on duty(open-ended question)
Q: Another ground is willful disobedience to the lawful order
of the employer. The word “disobedience”, what does that
mean?
A: Disobey or not to follow.
Q: When we say willful?
A: There’s an intent not to follow.
JMM: So the employee knows there’s a lawful order that he
needs to follow and yet he doesn’t follow it because he just
wanted to follow it. So disobedience means not to follow, to
disobey and it is done knowingly and deliberately.
Q: So if a teacher is required to submit his grades on time and
instead of submitting, what he did was not to submit the
grades at all. So that’s a willful disobedience?
A: Yes.
Q: What’s wrong with that?
A: It’s willful disobedience.
Q: The Labor Code mentions the word “fraud”, what do you
understand with this word?
A: Deceit or deception
Q: Can fraud stand alone as just cause to terminate an
employee?
A: Yes.
Q:Can fraud be done by an employee who does not hold a
position of trust?
A: No.
Q: So if an employee does not hold a position of trust, he
cannot be guilty of fraud?
A: They should be together.
Q: So a mere rank and file employee who is not a managerial
employee or hold a position of trust, asks his fellow employee
to time-in for him, did he commit fraud?
A:Yes.
Q: But he does not hold a position of trust
A: They can be treated separately
EH 405 (2017–2018) Page 19 of 21
Labo r
JMM: They should be treated separately regardless of
whether you hold a position of trust or not.
Q: What about willful breach of trust?
A: It can only be committed by a person holding a position of
trust.
Q: The word “breach”, what does that mean?
A: Breach is a violation or transgression.
Q: How about trust?
A: Entrusting confidence.
Q: So willful means?
A: Intent to breach the trust.
Q: And that may be a ground to terminate an employee if such
employee holds a position of trust?
A:Yes.
Q: Example.
A: Those holding managerial or supervisor positions.
Q: Can a rank and file employee hold a position of trust?
A: Yes if he is given the responsibility to hold property or
money (not sure if this is correct.)
Q: And another just cause for termination is for committing a
crime against the person, please give me an example.
A: Physical injuries (cause he didn’t like murder)
Q: You see other analogous causes, what does analogous
cause mean?
A: There must be an act or omission similar to those specified
in just causes and the act or omission must be voluntary or
willful on the part of the employee (Check DO 147-15).
JMM: So Analogous cause means a willful act attesting to his
moral integrity. And it is a just cause when it is analogous to
the 4 previously mentioned.
Q: Give me an example of a cause analogous to serious
misconduct.
A: Sexual Harassment, like if a manager demands from the
employee to have sexual intercourse in exchange of a
promotion or good recommendation.
Q: And if this is committed, this is a cause analogous to serious
misconduct. Does this fall within the definition of just cause
under the department order?
A: Yes because there’s an act or omission that is analogous to
serious misconduct and the act or omission is voluntary on
the part of the employee.
Q: What does the LC say regarding the procedural due process
on termination for just causes?
A: Article 292(b)
Q: It mentions of a notice being furnished to an employee who
is sought to be dismissed from employment, how many
notices does the LC contemplate?
A: 2 (Notice to Explain and Notice of Decision)
Q: Only one notice to explain?
A: the provision mentions “any decision taken by the
employer shall be without prejudice…”
Q: under the Labor Code, does the decision need to be served
on the employee?
A: Yes sir, the employee is entitled to the notice of the
decision of the employer.
Q: so in contemplation how many notices does that provision
provides?
A: two notices.
(1) notice to explain
(2) notice of decision
JMM: that’s why in cases, SC speaks of the twin notice
requirement
Q: and the notice to explain should state what?
A: it states the causes or reasons for the dismissal , it also
gives the employee an ample opportunity to explain
Q: why do we need to give the EE an ample opportunity to
explain, is that required in LC?
A: Yes, they’re entitled to explain their side.
Q: does that law give the EE the right to be heard or just an
opportunity to be heard?
A: Opportunity to be heard
Compiled by: Sandee
Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert
Mi dt e r m s R e c i t s Atty. J MM
Q: but is it not that we have the Bill of Rights that says “no
person shall be deprive of property without due process of
law”
A: yes
Q: when we speak of due process of law that contemplates
the “right to be heard”
A: Yes
Q: is that what is contemplated in the LC?
A: No, it only contemplates an ample opportunity.
Q: Is there a difference?
A: the one contemplated in the Constitution is that State’s
intrusion to the liberty while in LC it mentions about a mere
opportunity given by ER to EE to explain
Q: so the one in LC does not contemplate of constitutional
due process?
A: No
Q: what kind of due process is it?
A: Statutory Due Process
Q: how many days must be given by EE to state his side after
the service of the first notice?
A: the LC does not state, however in IRR it mentions of 5
calendar days to explain his side.
Q: that 5 days to explain is for what purpose?
A: for EE to prepare his side and adduced evidence in his
defense
Q: under LC, what follows after the serving of the first notice?
A: the ample opportunity to be heard
Q: does this include the right of an employee be afforded with
a formal hearing or conference?
A: No
Q: if the employee request for it?
A: then in this instance, it is now mandatory for the EE to have
a formal hearing
Q: what other instances that formal hearing is mandatory?
A: (1) its an established practice of company; (2) there are
substantial evidentiary disputes; (3) other similar instances
Q: why is that the conduct of formal hearing is mandatory if
the EE requests, for what purpose may that be used by the
EE?
A: it may be used by EE to adduce evidence in his defense.
JMM: a written explanation may not be enough to convince
the ER. Jurisprudence would tell us that a formal hearing
becomes mandatory is the EE requests for it. The denial of
such is a violation of procedural due process.
Q: what else?
A: In order to refute the evidence against him, to confront the
witness against him, he may also offer to settle amicably
Q: what is the 2nd notice?
A: written notice of decision
Q: these notices, how should it be served to EE?
A: preferably, it must be by personal service
Q: how is it done?
A: its effected by handing a copy of the notice/ delivering it
by hand
Q: is it important that we should’ve have proof of service?
A: yes, it is only thru proper furnishing of service that the EE
can have the opportunity to explain.
Q: In making personal service of a notice, what is your proof of
service?
A: may be evidenced by the actual receipt
Q: is there any other mode of service?
A: it could be through mail to the EE’s last known address. It
could be either ordinary mail or registered mail.
What is the proof of service for ordinary mail and the proof of
service for registered mail?
Registry receipt or return card?
Registered mail – registry receipt and return card issued by
postal office
Ordinary mail – receipt issued by postal office evidencing
receipt/mailing of documents
(Not sure of the answers cos he didn’t say, based on research
ra, so might as well research also on your own)
EH 405 (2017–2018) Pa ge 20 of 21
Labo r Mi dt e r m s R e c i t s Atty. J MM

Which is the proof of mailing? Registry Receipt or return card? not involve serious misconduct or those reflecting on his
(Give a wild guess) moral character (Discerning Compassion Doctrine).
(he didn’t answer)
If there exists a just cause and there is no compliance with the
Who has the burden prove legality of dismissal? procedural due process requirement? Then what is now the
Employer. status of the dismissal?
Valid but the ER is entitled to give the EE nominal damages.
What are the requirements again?
Substantive and procedural due process What is nominal damages?
Awarded in recognition of a violation of the right of the
Can you serve by private courier? plaintiff.
No prohibition as long as you serve a copy as long as there is Damages  recoverable  in order to vindicate or recognize the
also proof of service. rights of the plaintiff which has been violated or invaded by
The second notice is the notice of decision, what is in the the defendant.
notice of decision?
The employer would furnish the employee based on the
allegations against him as well as the evidence and the
decision whether to terminate him or not.
The notice of decision must come after notice to explain. It
must also be accompanied with proof of service.

Once you were able to satisfy all these, would that now satisfy
the procedural due process requirement?
Yes.
So Notice of decision, based on jurisprudence whenever the
ER decides on what penalty can be imposed on the EE, do we
have any guiding principle? Or is the mere fact that the EE
committed acts constituting any of the just cases already
considered ground to terminate him all the time?
Not necessary that the EE is terminated if he is found to be
doing any of the just causes. Based on the company policy, if
there are other penalties other than termination then he
must be given such penalty.
Who decides whether it is a just cause or not?
The ER.
In deciding whether the penalty is dismissal or not, what
guiding principles should the employer follow?
Principle of Discretionary Justice – Where a penalty less
punitive would suffice, whatever missteps may be committed
by labor ought not to be visited with a consequence so
severe. (In the book daw, SC decision)
In other words, the penalty must not be too harsh. It must be
commensurate to the act or omission taking into account the
nature and gravity of the offense, length of service of the
employee, derogatory records if any and other similar
factors.
Unlike in the past when you committed any of the just causes,
there is really dismissal.
What is the so-called Double Jeopardy Rule? It is another
guiding principle in the imposition of penalty.
An employee cannot be penalized twice for the same offense.
The employer cannot take into account the previous
penalized offense in terminating the employee.
What about Previous Infraction Rule?
Previous infractions which may be used as justification for an
employee’s dismissal from work which must be in
connection with a subsequent similar offense.
Would it entitle the employee to reinstatement if the penalty is
too harsh?
The dismissal is illegal if penalty is too harsh. It would warrant
the reinstatement of EE.
If there exists Just Cause and there is faithful compliance with
the procedural due process? What is the status of the
dismissal?
Valid.
So if it is valid dismissal is the employee entitled to any relief
under LC?
No, sir since it is valid.
When is he entitled to relief?
If there is unjust dismissal or illegal dismissal. It is under Art.
294 (Read second sentence)
When is the dismissal unjust?
If there is no just cause or authorized cause and there is
absence of the twin notice rule.
Is there an instance where the EE may be entitled to a relief
even if dismissal is for just cause? And even if there is
compliance with procedural due process?
ER may be given Separation Pay as financial assistance
provided that the dismissal was for a just cause which does

Compiled by: Sandee

Transcribed by: 405 — Marla, 406 — Roseanne&Margil, 
 “Alone, we can do so little; together we can do so much."
407 — Vince&Mishel, 402 — Jemar&Ela, 404 — Lambert EH 405 (2017–2018) Page 21 of 21