January 27, 2022

Labor Law Review

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Kinds of Employees

1. Regular
- Two modes to determine:
a. Nature of Function Test
o Nature of work being performed is directly related to the usual business of
the enterprise
o When is he/she a regular employee? From day one in the absence of non-
regular employment
b. Length of Employment Test
o If for a period of one year, whether continuous or broken
o What is important is the length of service, not the nature or function of work
c. Satisfactory completion of probationary employment
d. Employment of a so-called project employee without complying with the
requirements of project employment
e. Employment of seasonal employee from one season to another, he becomes
regular seasonal employee
f. Hired as a fixed-term employee, but the fixed term is repeatedly extended
without valid reason.

- Why important?
o So that they are eligible to full security of tenure.
o It means that only just, authorized, analogous

2. Non-Regular

a. Project
o Guideposts
 Article 295, labor Code
 Involved in the construction industry
 D.O. 19 series of 1993
o Who is a project employee
 Hired for a fixed or specific project or undertaking.
 The completion or termination of it is made known at the time of
engagement / hiring.
 Otherwise, he is not a genuine or project employee and is
really a regular employee
 Cases:
 F. ganzon case, feb 20, 2017
 o Nature of work of project employee
 Can the project employee be assigned to any
work? Doing business reasonable and desirable
to the business; or
 Doing special projects
 Start and end at a determinable period
o If there are numerous projects
 Project employee should only work on the
project specifically hired
 Cannot be assigned to other project not
specifically stated
o Who has the burden of proof
 The employer has the burden of proof
 That employee assigned to specific
project
 Spelled out where he is assigned
(foundation, finishing, etc)
 Mirandela et. Al. vs Jose calma development corp, June 29,
2019
o Indicators
 Various assignments
 Contract extensions without valid reason
 Successive re-hiring
 Means that the services of the project
employee is indispensable and this is a
badge of regularity of status
 Employment is extended long after original
project (Fraycinet Filipinas et. Al vs lapuz,
march 18, 2019 ruling)
o Report of termination
 Nearest Labor arbiter
 Within 30 days after completion of project
 Sec. 2.2 D.O. 19 series of 1993
(important Indicators of valid project
employment)
o Duration / identified undertaking
o Period of project reasonable
determinable
o Made known to employee at the
time of engagement / hiring
o Services of project employee are
exclusively devoted to the
project
 o A true project employee is free
to offer services during the lull
o Employer employee relationship
is severed after completion of
project
o Submission of termination
reports after project is
completed
o A true project employee, upon
expiration of proj employment,
will be paid completion bonus
(GOLD STANDARD for
determination for project
employment contract, ideal but
not necessary)
 Gadia et. Al. vs Sykes, January 28, 2015 ruling
o BPO workers can be hired as project employees
assigned to one specific project
o Terminated after project was finished
o SC ruled no cause of action, they were made aware,
worked exclusively and expiration of project
 Omni hauling services, September 3, 2014
o Garbage truck drivers and paleros
o Sc sustained the validity of project employment
o It was established with clarity
o Project was completed, termination is valid
 GMA network vs Fabriga et.al., November 27, 2013
o Camera man, editors, props man
o SC ruled they cannot be project employees because
they were not made to sign project employment
contract
o Evidence that must be presented by employer are:
 Duration and scope of project
 Employee informed of employment as project
employee
 Presence of a project must be established
 Exclusive assignment to the said project
 Innodata vs inting, et.al., December 6, 2017 ruling
o Fused project employment with fixed term
employment
o SC ruled that they are two different employment and
cannot be fused for being grossly advantageous for the
workers.
 o “or within the period that the employer determines
they are no longer needed”
 Reliefs available to illegally dismissed project employee
 Payment of salary for the unexpired portion of the contract
 Reinstatement
 No relief for backwages

b. Seasonal
o Seasonal employee becomes regular seasonal employee if hired for season to
season
o Difference: Regular seasonal employee vs seasonal employee
 Season Employee
 Only works for a season
 E-E relationship is terminated after season
 Regular Seasonal Employee
 Worked for more than one season
 A season last at most for 6 months
 Universal Rubina vs Nagkahiusang Mamumuong sa URS
 They are regular seasonal employees
 Universal Rubina Nov 25, 2018 ruling
 Regular Seasonal employees also worked for off seaon
 Doing jobs repairing, conditioning machine
 Working side by side regular employees
 SC ruled they are regular employees
o They are entitled to benefits under CBA
 Has there been a lull
o If yes – they are regular seasonal employees
o If no – they are REGULAR employees
 Pass vs northern tobacco redrying, feb 18, 2018 ruling (important)
 Proper manner of retirement pay of regular seasonal
employee
 Ms Pass is a tobacco sorter for 29 years
 How to compute retirement pay
c. Casual
o Hired to perform useful, necessary but not directly necessary and desirable
to the usual business of employer
o Work performed is only incidental to the usual business of employer
o He will attain regular status after performing work for employer for atleast
one year
o For as long as the activity is there, he remains to be a regular employee

d. Fixed Term
o Concept found in jurisprudence
o Consult the civil code, Art. 1193 not labor code
o Is fixed term employment legal?
 General Rule:
 Fixed term is suspicious / frowned upon.
 Brent international school case (exception rather than the rule)
 Fixed term employment is licit
 Provided, the following conditions are met:
o Parties knowingly freely and voluntarily entered in the
fixed term employment with no vitiation of consent.
o Both parties must entered into contract of
employment on equal footing, no one has taken
advantage on one against the other
 Claret School vs Inday Case, Oct 9, 2019
 Ms. Inday was asked to signed fixed term employment
repeatedly
 Terminated from employment on the ground of expiration of
fixed term employment
 SC ruled there is no valid fixed term employment, brent case
cannot be applied
 Plain wage earners should not be faulted for tolerating jobs
even if jobs are awful
 Look for the two conditions:
o Parties knowingly freely and voluntarily entered in the
fixed term employment with no vitiation of consent.
o Both parties must entered into contract of
employment on equal footing, no one has taken
advantage on one against the other
 Employer employee relationship is severed on a day certain
(day certain was borrowed from art 1193 of civil code).
o No need on the part of employer for two notice
requirement
o Contract terminated by itself if it is a genuine /
authentic fixed term contract.
o Non-renewal of contract does not equate to illegal
dismissal because of the day certain.
 Oks Design Tech incorporated vs cacam, august 5, 2015 ruling
 Employee under fixed term may perform work necessary and
desirable
 Or the work of the regular employee
 Part of management prerogative to determine the nature of
work

o Project Employment vs fixed term

  Probationary
 Primary Determination evaluation to the fitness and
competence; secondary is within particular period
 Not more than
 Fixed term
 Primary Determination is the Day certain

o Probationary employees
 Guidepost
 Article 296
 Not more than 6 months
 Except:
o Apprenticeship providing for longer or shorter period
o CBA provind for longer / shorter
o Company Practice
o Complicated work requiring more or intensive
probatioray employmee
o Probationary employment of teachers both secondary
or higher education
 Labor code only applies in a suppletorily
manner
 What applies is the 2011 revised manual on
basic education and 2008 revised manual for
higher education
 Entitled to security of tenure
 Except in the presence of just cause and authorized caused
 Employee fails to live up with standards
 Obligations
 Informing employee
 Evaluating on a regular basis
 Provide employee a copy of performance evaluation
 Give chance to comment
 Brosil et.al. vs STI, nov 21, 2018
 Sc ruled that even if regular employment was conferred
without master’s degree qualification
 When probationary status overlaps
 Probationary status of employment must have primacy (De
lasalle araneta vs magdurulang, dec. 20, 2017)
 Moral vs momentum properties, 2019 ruling
 Probationary employment, it is not necessary to observe the
two-notice rule
 o Only necessary when reason mo termination is not due
to live up to the reasonable standard. One notice is
sufficient, notice of termination.
 Agustin vs alphaland corp, sept 9, 2020
 Mr agustin was hired as executive chef probationary
 Consultant at balisi prior to probationary employment
 Told about the standards
o Display the highest
 SC ruled these are not reasonable standards but general
 Probationary employment of Mr agustin is not valid
 Labor Advisory no. 14 series of 2020
 Purposes of probationary employment, you should not include
enhanced community quarantine, was imposed in the
computation of probationary period.
 Termination due to failure to live up to standards
 Only one notice
 Except if included in the contract (Abbot lab vs alcaraz
“contractual due process”)
o Otherwise employee is entitled to nominal damages
 Just cause – 30k
 Authorized cause – 50k.