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NEW ERA UNIVERSITY COLLEGE OF LAW

LABOR LAW REVIEW
Under Atty. Jose-Antonio T. Aliling
1st Semester, AY 2014-2015

Handout No. 03

WHAT KIND OF EMPLOYEE IS HE?

IN RELATION TO SECURITY OF TENURE / NATURE OF EMPLOYMENT.

ARTICLE 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
which he is employed and his employment shall continue
while such activity exists.
This provision reinforces the Constitutional mandate to protect the interest of labor. Its
language evidently manifests the intent to safeguard the tenurial interest of the worker
who may be denied the rights and benefits due a regular employee by virtue of
lopsided agreements with the economically powerful employer who can maneuver to
keep an employee on a casual status for as long as convenient. Thus, contrary
agreements notwithstanding, an employment is deemed regular when the activities
performed by the employee are usually necessary or desirable in the usual business or
trade of the employer. Not considered regular are the so-called "project employment"
the completion or termination of which is more or less determinable at the time of
employment, such as those employed in connection with a particular construction
project
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and seasonal employment which by its nature is only desirable for a limited
period of time. However, any employee who has rendered at least one year of service,

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whether continuous or intermittent, is deemed regular with respect to the activity he
performed and while such activity actually exists.
The primary standard, therefore, of determining a regular employment is the
reasonable connection between the particular activity performed by the employee in
relation to the usual business or trade of the employer. The test is whether the former
is usually necessary or desirable in the usual business or trade of the employer. The
connection can be determined by considering the nature of the work performed and its
relation to the scheme of the particular business or trade in its entirety. Also, if the
employee has been performing the job for at least one year, even if the performance is
not continuous or merely intermittent, the law deems the repeated and continuing need
for its performance as sufficient evidence of the necessity if not indispensability of that
activity to the business. Hence, the employment is also considered regular, but only
with respect to such activity and while such activity exists. (Moises De Leon v. NLRC
and La Tondena, Inc., G.R. No. 70705, 21 August 1989.)

A. GENERAL RULE: REGULAR EMPLOYEE

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 (Article 280, Labor Code)

IMPLICATION: May only be dismissed or
terminated by reasons of Just
Causes (Article 282) or Authorized
Causes (Article 283).

NOTE: It is a common misconception that only regular employees
are entitled to employment benefits such as minimum wage, overtime pay,
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month pay, SSS, etc. This is NOT correct.

The following are also deemed Regular Employees by operation of law:

a. A Seasonal Employee who works beyond or outside of the season at
activities usually necessary and desirable to the employer;

b. A Fixed Term Employee who works beyond or outside the agreed period
at activities usually necessary and desirable to the employer;

c. A Casual Employee who works beyond one year;

d. A casual employee who works on activities that are necessary and
desirable to the business of a Company;


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e. A Probationary Employee who works beyond the probationary period;

f. A Probationary Employee who was not informed of the standards for
regularization prior to commencing work;

g. An employee who was not informed prior to commencing work that he is
a Probationary Employee.


B. EXCEPTIONS:

IMPLICATION: If an employee falls within the
exception, the employer may
terminate him for specific
additional grounds other than Just
or Authorized Causes.

1. PROJECT EMPLOYEES

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 280, Labor Code)

Extra grounds
for valid
termination:
Completion of project or
undertaking in the project.


2. FIXED-TERM EMPLOYEES

where the employment termination of which has been determined at the time of
the engagement of the employee (Article 280, Labor Code)

Extra grounds
for valid
termination:
Expiration of term.


3. SEASONAL EMPLOYEES

or where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season. (Article 280, Labor Code).

Extra grounds
for valid
termination:
End of season.



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Where the work or service to be performed is seasonal in character, the employment is
deemed to last only for the duration of the season. However, seasonal employees who
are consistently rehired after every season are considered merely on leaves of absence
with pay. Their employment relationship is not severed but only suspended. As such,
they are considered in regular employment. (Manila Hotel vs. CIR, 9 SCRA 184)

4. PROBATIONARY EMPLOYEE

Probationary employment shall not exceed six (6) months from the date the employee
started working, unless it is covered by an apprenticeship agreement stipulating a
longer period. The services of an employee who has been engaged on a probationary
basis may be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the employer to the
employee at the time of his engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee. (Article 281, Labor Code)


Extra grounds
for valid
termination:
Failure to meet standards
for regularization that was
made known to them at
start of employment.


NOTE: End of probationary
period by itself and without
other grounds is not valid
grounds for termination.


Implementing Rules and Regulation to the Labor Code: SECTION 6. Probationary
employment.

(a) Where the work for which an employee has been engaged is learnable or
apprenticeable in accordance with the standards prescribed by the Department
of Labor, the probationary employment period of the employee shall be limited
to the authorized learnership or apprenticeship period, whichever is applicable.

(b) Where the work is neither learnable nor apprenticeable, the probationary
employment period shall not exceed six (6) months reckoned from the date the
employee actually started working.

(c) The services of an employee who has been engaged on probationary basis may
be terminated only for a just cause or when authorized by existing laws, or when