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G.R. No. 122917 THIRD DIVISION / PANGANIBAN, J.

July 12, 1999

MARITES BERNARDO et al. vs. NLRC Daylo, Jerome Dela Cruz Series: 7

FACTS: The 43 petitioners are deaf-mutes who were hired on various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called "Employment Contract for Handicapped Workers". The said agreement provides for the manner of how they are hired and be rehired, the amount of their wages (P118.00 per day), period of employment (5 days a week, 8 hours a day, training for 1 month, 6 months period) and the manner and methods of how their works are to be done (Sort out bills according to color; Count each denomination per hundred, either manually or with the aid of a counting machine; Wrap and label bills per hundred; Put the wrapped bills into bundles; and Submit bundled bills to the bank teller for verification.) Many of their employments were renewed every six months. Claiming that they should be considered as regular employees they filed a complaint for illegal dismissal and recovery of various benefits. Labor arbiters decision: complaint is dismissed for lack of merit (the terms of the contract shall be the law between the parties.). Affirmed by the NLRC (Art. 280 is not controlling herein but Art. 80) (the Magna Carta for Disabled Persons was not applicable, "considering the prevailing circumstances of the case.") and denied motion for reconsideration.

ISSUES: Does petitioners considered as regular employees? LAW: Art.78 & 80 of the Labor Code and the Magna Carta for Disabled Persons. RULING: Yes. The petition is meritorious. However, only the employees, who worked for more than six months and whose contracts were renewed are deemed regular. Hence, their dismissal from employment was illegal. The stipulations in the employment contracts indubitably conform with Article 80, however, the application of Article 280 of the Labor Code is justified because of the advent of RA No. 7277 (the Magna Carta for Disabled Persons) which mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person (compensation, privileges, benefits, fringe benefits, incentives or allowances) 27 of the petitioners are considered regular employees by provision of law regardless of any agreement between the parties as embodied in article 280 in relation to article 281 of the Labor Code. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exist. Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. When the bank renewed the contract after the lapse of the six-month probationary period, the employees thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees. Those who have worked for only 6 months and employments were not renewed are not considered regular employees.

OPINION: The Court correctly finds that 27 of the handicapped workers are regular employees. The test is whether the activity is usually necessary or desirable in the usual business or trade of the employer. The employment is considered regular, but only with respect to such activity, and while such activity exist. Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause.