San Miguel Corporation vs NLRC297 SCRA 277Employer Determination

FACTS

On November 1990, private respondent was hired by petitioner as helper/bricklayer for a specific project, the repair and upgrading of furnace C at its Manila Glass Plant. His contract of employment provided that said temporary employment was for a specific period of approximately four (4) months.

On April 30, 1991, private respondent was able to complete the repair and upgrading fo furnace C. Thus, his services were terminated on that same day as there was no more work to be done. His employment contract also ended that day.

On May 10, 1991, private respondent was again hired for a specific job or undertaking, which involved the draining/cooling down of furnace F and the emergency repair of furnace E. This project was for a specific period of approximately three (3) months.

After the complesion of this task, namely the draining/cooling down of furnace F and the emergency repair of furnace E, at the end of July 1991, private respondent's services were terminated.

On August 1, 1991, complainant saw his name in a Memorandum posted at the Company's Bulletin Board as among those who were considered dismissed. On August 12, 1994, or after the lapse of more than three (3) years from the completion of the last undertaking for which private respondent was hired, private respondent filed a complaint for illegal dismissal against petitioner.

ISSUE

What is the nature of the employment of private respondent, that of a project employee or a regular employee?

RULING

Following Article 280, whether one is employed as a project employee or not would depend on whether he was hired to carry out a "specific project or undertaking", the duration and scope of which were specified at the time his services were engaged for that particular project.

Another factor that may be undertaken by the employee in relation to the usual trade or business of the employer, if without specifying the duration and scope, the work to be undertaken is usually necessary or desirable in the usual business or trade of the employer, then it is regular employment and not just "project" must less "casual" employment.

Thus, the nature of one's employment does not depend on the will or word of the employer. Nor on the procedure of hiring and the manner of designating the employee, but on the nature of the activities to be performed by the employee, considering the employer's nature of business and the duration and scope of the work to be done.

Clearly, private respondent was hired for a specific project that was not within the regular business of the corporation. For petitioner is not engaged in the business of repairing furnaces. Although the activity was necessary to enable petitioner to continue manufacturing glass, the necessity therefor arose only when a particular furnace reached the end of its life or operating cycle. Or, as on the second undertaking, when a particular furnace required an emergency repair. In other words, the undertakings where private respondent was hired primarily as helper/bricklayer have specified goals and purpose which are fulfilled once the designated work was completed. Moreover, such undertakings were also identifiably separate and distinct from the usual, ordinary or regular business operations of petitioner, which is glass manufacturing.

ABESCO CONSTRUCTION AND DEVELOPMENT CORPORATION vs RAMIREZ487 SCRA 9 (2006)LENGTH OF TIME

FACTS

Petitioner company was engaged in a construction business where respondents were hired on different dates from 1976 to 1992 either as laborers, road roller operators, painters or drivers. In 1997, respondents filed two separate complaints for illegal dismissal against the company and its General Manager, Oscar Banzon, before the Labor Arbiter. Petitioners allegedly dismissed them without a valid reason and without due process of law. The complaints also included claims for non-payment of the 13th month pay, five days service incentive leave pay, premium pay for holidays and rest days, and moral and exemplary damages. The LA later on ordered the consolidation of the two complaints. Petitioners denied liability to respondents and countered that respondents were projectemployees since their services were necessary only when the company had projects to be completed. Petitioners argued that, being project employees, respondents employment was coterminous with the project to which they were assigned. They were not regular employees who enjoyed security of tenure and entitlement to separation pay upon termination from work.

ISSUE

Whether respondents were project employees or regular employees.

RULING

The SC held that respondents were regular employees. The principal test for determining whether employees are project employees or regular employees is whether they are assigned to carry out a specific project or undertaking, the duration and scope of which are specified at the time they are engaged for that project. Such duration, as well as the particular work/service to be performed, is defined in an employment agreement and is made clear to the employees at the time of hiring. In this case, petitioners did not have that kind of agreement with respondents. Neither did they inform respondents of the nature of the latters work at the time of hiring. Hence, for failure ofpetitioners to substantiate their claim that respondents were project employees, we are constrained to declare them as regular employees.

Grandspan Development Corp., vs. BernardoGR No. 141464, September 21, 2005Labor Contractor Only (Requisites and Prohibitions)

FACTS

Respondents, in their complaint, alleged that sometime in 1990, they were employed as truck scale monitors by petitioner with a daily salary of P104.00 each. Eventually, they were assigned at its Truck Scale Section of the Warehouse/Materials Department. They were issued 13 identification cards signed by Bonifacio Selmo, petitioner's personnel manager. On October 28, 1992, petitioner sent them a notice terminating their services effective October 29, 1992 for using profane or offensive language, in violation of Article VI (2) (a) of the company's Rules and Regulations. Petitioner denied the allegations of respondents in their complaint, claiming that they are employees of J. Narag Construction. Sometime in the third quarter of 1992, Canad Japan Co., Ltd. engaged petitioner's services for fabrication works of several round and rectangular steel tanks needed for the HCMG or Sogo project due for completion in September, 1992. As a consequence, petitioner subcontracted the services of J.Narag Construction which, in turn, assigned its 3 helpers (herein respondents) to work for petitioner's project. Sometime in October, 1992,Manuel G. Lee, manager of petitioner's Warehouse Department received a report from supervisor Robert Ong that respondents vandalized the company's log book and chairs. This prompted petitioner to send J. Narag Construction a memorandum terminating the services of respondents for violation of the company's Rules and Regulations. The Labor Arbiter rendered a Decision dismissing respondents' complaint stating that they were project employees whose services were terminated upon completion of the project for which they were hired.

ISSUE

Whether or not there is an employer-employee relationship between petitioner and respondent or whether the respondents are employees of J.Narag Construction, an independent contractor.

RULING

Article 106 of the Labor Code, as amended, provides in part: "ART. 106. Contractor or subcontracting.. . . . xxx xxx xxx There is 'labor-only' contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. . . .." J. Narag Construction is indeed a labor-only contractor. These are the reasons: (1) it is not registered as a building contractor with the SEC; (2) it has no contract with petitioner; and (3) there is no proof of its financial capability and has no list of equipment, tools, machineries and implements used in the business. Clearly, J. Narag Construction could not be respondents' employer.

MARIGUINOT VS NLRC284SCRA 539 (1990)LENGTH OF TIME

FACTS

Maraguinot and Enero were separately hired by Vic Del Rosario under Viva Films as part of the filming crew. Sometime in May 1992, sought the assistance of their supervisor to facilitate their request that their salary be adjusted in accordance with the minimum wage law. On June 1992, Mrs. Cesario, their supervisor, told them that Mr. Vic Del Rosario would agree to their request only if they sign a blank employment contract. Petitioners refused to sign such document. After which, the Mr. Enero was forced to go on leave on the same month and refused to take him back when he reported for work. Mr. Maraguinot on the other hand was dropped from the payroll but was returned days after. He was again asked to sign a blank employment contract but when he refused, he was terminated. Consequently, the petitioners sued for illegal dismissal before the Labor Arbiter. The private respondents claim the following: (a) that VIVA FILMS is the trade name of VIVA PRODUCTIONS, INC. and that it was primarily engaged in the distribution & exhibition of movies- but not then making of movies; (b) That they hire contractors called producers who act as independent contractors as that of Vic Del Rosario; and (c) As such, there is no employee-employer relation between petitioners and private respondents. The Labor Arbiter held that the complainants are employees of the private respondents.The private respondents appealed to the NLRC which reversed the decision of the Labor Arbiter declaring that the complainants were project employees due to the ff. reasons: (a) Complainants were hired for specific movie projects and their employment was co-terminus with each movie project; (b) The work is dependent on the availability of projects. As a result, the total working hours logged extremely varied; (c) The extremely irregular working days and hours of complainants work explains the lump sum payment for their service; and (d) The respondents alleged that the complainants are not prohibited from working with other movie companies whenever they are not working for the independent movie producers engaged by the respondents.

ISSUE

WON there exist an employee- employer relationship between the petitioners and the private respondents.

RULING

There exist an employee- employer relationship between the petitioners and the private respondents because of the ff. reasons that nowhere in the appointment slip does it appear that it was the producer who hired the crew members. Moreover, it was VIVAs corporate name appearing on heading of the slip. It can likewise be said that it was VIVA who paid for the petitioners salaries. Respondents also admit that the petitioners were part of a work pool wherein they attained the status of regular employees because of the ff. requisites: (a) There is a continuous rehiring of project employees even after cessation of a project; (b) The tasks performed by the alleged project employees are vital, necessary and indispensable to the usual business or trade of the employer; and (c) However, the length of time which the employees are continually re-hired is not controlling but merely serves as a badge of regular employment.

Palomares v NLRC277 SCRA 596Length of Service

FACTSPetitioners Ferdinand Palomares and Teodulo Mutia were hired by respondent National Steel Corporation (NSC) by virtue of contracts of employment for its Five Year Expansion Program or FYEP, Phase I and II-A, for varying lengths of time

Petitioners, along with other employees, filed a consolidated petition for regularization, wage differential, CBA coverage and other benefits.In his decision dated April 29, 1992, Labor Arbiter Nicodemus G. Palangan ordered the dismissal of the complaint with respect to 26 complainants but ruled in favor of petitioners.Palomares, Mutia and four other complainants were adjudged as regular employees of respondent for reason that the activities they performed are regular, and necessary in the usual trade or course of business of the company.

On appeal, the NLRC reversed the findings of the Labor Arbiter in a decision dated November 23, 1994.Respondent Commission held that petitioners were project employees and that their assumption of regular jobs were mainly due to peakloads or the absence of regular employees during the latters temporary leave. After their motion for reconsideration was denied on March 30, 1995, petitioners filed this petition.

Petitioners argue that as regards functions and duration of work, contracted employees should, by operation of law, be considered regular employees.Respondent NSC, on the other hand, maintains that petitioners are mere project employees, engaged to work on the latters Five-Year Expansion Projects

ISSUE

W/N should be considered regular employees of respondent corporation by reason of length of service.

RULING

They are not considered as regular employees but project employees.The fact that petitioners were required to render services necessary or desirable in the operation of NSCs business for a specified duration did not in any way impair the validity of their contracts of employment which stipulated a fixed duration therefor.It should be noted that there were intervalsin petitioners respective employment contracts with NSC, thus bolstering the latters position that, indeed, petitioners are project employees.Since its work depends on availability of such contracts or projects, necessarily the employment of its work force is not permanent but co-terminus with the projects to which they are assigned and from whose payrolls they are paid.It would be extremely burdensome for their employer to retain them as permanent employees and pay them wages even if there are no projects to work on.The fact that petitioners worked for NSC under different project employment contracts for several years cannot be made a basis to consider them as regular employees, for they remain project employees regardless of the number of projects in which they have worked.Even if, as admitted by the parties, petitioners were repeatedly and successively re-hired on the basis of a contract of employment for more than one year, they cannot be considered regularized.Length of service is not the controlling determinant of the employment tenure of a project employees.As stated earlier, it is based on whether or not the employment has been fixed for a specific project or undertaking, the completion of which has been determined at the time of the engagement of the employee.Furthermore, the second paragraph of Article 280, providing that an employee who has rendered service for at least one (1) year, shall be considered a regular employee, pertains to casual employees and not to project employees such as petitioners.

CHUA VS CA440 SCRA 121 (2004)PROJECT EMPLOYEES

FACTS

On 20 August 1985, private respondents Andres Paguio, Pablo Canale, Ruel Pangan, Aurelio Paguio, Rolando Trinidad, Romeo Tapang and Carlos Maliwat (hereinafter referred to as respondents) filed a Petition with the SSC for SSS coverage and contributions against petitioner Reynaldo Chua, owner of Prime Mover Construction Development, claiming that they were all regular employees of the petitioner in his construction business. Private respondents alleged that petitioner dismissed all of them without justifiable grounds and without notice to them and to the then Ministry of Labor and Employment. They further alleged that petitioner did not report them to the SSS for compulsory coverage in flagrant violation of the Social Security Act.- On the other hand, the petitioner claimed that private respondents were project employees, whose periods of employment were terminated upon completion of the project. Thus, he claimed, no employer-employee relation existed between the parties. There being no employer-employee relationship, private respondents are not entitled to coverage under the Social Security Act. Moreover, petitioner invokes the defense of good faith, or his honest belief that project employees are not regular employees under Article 280 of the Labor Code. The SSC and CA ruled in favor of the respondents.

ISSUE

WON private respondents were regular employees of the petitioner

RULING

YES. Elements of the control test: (a) selection and engagement of the employee; (b) payment of wages; (c) the power of dismissal; and (d) the power of control with regard to the means and methods by which the work is to be accomplished, with the power of control being the most determinative factor. Even though the employer does not admit, the existence of an employer-employee relationship between the parties can easily be determined by the application of the "control test, the elements of which are: (a) selection and engagement of the employee; (b)payment of wages; (c) the power of dismissal; and (d) the power of control with regard to the means and methods by which the work is to be accomplished, with the power of control being the most determinative factor.

There is no dispute that private respondents were employees of petitioner. Petitioner himself admitted that they worked in his construction projects, although the period of their employment was allegedly co-terminus with their phase of work. It is clear that private respondents are employees of petitioner, the latter having control over the results of the work done, as well as the means and methods by which the same were accomplished. Suffice it to say that regardless of the nature of their employment, whether it is regular or project, private respondents are subject of the compulsory coverage under the SSS Law, their employment not falling under the exceptions provided by the law. This rule is in accord with the Courts ruling in Luzon Stevedoring Corp. v. SSS to the effect that all employees, regardless of tenure, would qualify for compulsory membership in the SSS, except those classes of employees contemplated in Section 8(j) of the Social Security Act.

To be exempted from the presumption of regularity of employment, the agreement between a project employee and his employer must strictly conform to the requirements and conditions under Article 280 of the Labor Code. It is not enough that an employee is hired for a specific project or phase of work. There must also be a determination of, or a clear agreement on, the completion or termination of the project at the time the employee was engaged if the objectives of Article 280 are to be achieved.

Kimberly v Drilon185 SCRA 190One Year Service

FACTS Kimberly-Clark Philippines, Inc executed a three-year collective bargaining agreement (CBA) with UKCEU-PTGWO which expired on June 30, 1986. Within the 60-day freedom period prior to the expiration of and during the negotiations for the renewal of the aforementioned CBA, some members formed another union called KILUSAN-OLALIA.

On April 21, 1986, KILUSAN-OLALIA filed a petition for certification election, UKCEU-PTGWO did not object to the holding of a certification election but objected to the inclusion of the so-called contractual workers whose employment with KIMBERLY was coursed through an independent contractor.

During the pre-election conference, 64 casual workers were challenged by KIMBERLY and (UKCEU-PTGWO) on the ground that they are not employees, of KIMBERLY but of RANK. It was agreed by all the parties that the 64 voters shall be allowed to cast their votes but that their ballots shall be segregated and subject to challenge proceedings. Results of voting were:KILUSAN-OLALIA = 246 votes, (UKCEU-PTGWO) = 266 votes, CHALLENGED BALLOTS = 64 votes. KILUSAN-OLALIA filed with the med-arbiter a "Protest and Motion to Open and Count Challenged Voteson the ground that the 64 workers are regular employees of KIMBERLY. KIMBERLY filed an opposition to the protest and motion, asserting that there is no employer-employee relationship between the casual workers and the company.

Petition of KILUSAN-OLALIA avers that the respondent Secretary of Labor have acted with grave abuse of discretion and/or without jurisdiction in (1) ruling on the issue of bargaining representation and declaring respondent UKCEU-PTGWO as the collective bargaining representative of all regular rank-and-file employees of the respondent company; (2) holding that petitioners are not entitled to vote in the certification election.

ISSUEW/N 64 workers are considered as casual and not entitled to cast their votes in CBA election

RULING

Employees in question are considered as Regular Employee. The law provides for two. kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed. It is not disputed that these workers have been in the employ of KIMBERLY for more than one year at the time of the filing of the Petition for certification election by KILUSAN-OLALIA.

Owing to their length of service with the company, these workers became regular employees, by operation of law, one year after they were employed by KIMBERLY through RANK. The law is explicit. As long as the employee has rendered at least one year of service, he becomes a regular employee with respect to the activity in which he is employed. The law does not provide the qualification that the employee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. Obviously, where the law does not distinguish, no distinction should be drawn.

The court ordered to open and count the 64 challenged votes, and that the union with the highest number of votes be thereafter declared as the duly elected certified bargaining representative of the regular employees of KIMBERLY.

Philips Semiconductors vs Fadriquella427 SCRA 408 (2004)Contract of fixed period

FACTS

Philips Semiconductors is engaged in the production of electronic materials. Under its employ are both regular and contractual workers who are subjected to periodic performance assessments. During her five consecutive contracts under Philips, respondent was able to satisfy such performance assessments except for her last contract wherein she fell short of the required mark due to her absences. She was allowed to explain herself but refused to do so and due to her frequent absenteeism, her supervisor recommended her termination. Respondents contract was then not renewed and she filed for illegal dismissal. In Philips defense, it contended that she was not dismissed but her contract had already expired.The Labor Arbiter and the NLRC based their decision on the CBA between the petitioner and the labor union which provides that a contractual employee would only be considered a regular employee if he has completed 17 months of service and a performance rating of at least 3.0. The respondent filed a motion for reconsideration but the NLRC denied the same. On appeal, the CA reversed the decision of the NLRC.

ISSUE

Whether or not Fadriquella is a contractual employee

RULING

Fadriquella is a regular and not a contractual employee. Article 280 of the Labor Code of the Philippines was emplaced in our statute books to prevent the circumvention by unscrupulous employers of the employees right to be secure in his tenure by indiscriminately and completely ruling out all written and oral agreements inconsistent with the concept of regular employment defined therein. The language of the law manifests the intent to protect the tenurial interest of the worker who may be denied the rights and benefits due a regular employee because of lopsided agreements with the economically powerful employer who can maneuver to keep an employee on a casual or temporary status for as long as it is convenient to it. In tandem with Article 281 of the Labor Code, Article 280 was designed to put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them temporary or probationary appointments, ad infinitum.

The petitioners reliance on the CBA is misplaced. It is the express mandate of the CBA not to include contractual employees within its coverage. Such being the case, we see no reason why an agreement between the representative union and private respondent, delaying the regularization of contractual employees, should bind petitioner as well as other contractual employees. Indeed, nothing could be more unjust than to exclude contractual employees from the benefits of the CBA on the premise that the same contains an exclusionary clause while at the same time invoke a collateral agreement entered into between the parties to the CBA to prevent a contractual employee from attaining the status of a regular employee.The CBA, during its lifetime, constitutes the law between the parties. Such being the rule, the aforementioned CBA should be binding only upon private respondent and its regular employees who were duly represented by the bargaining union. The agreement embodied in the Minutes of Meeting between the representative union and private respondent, providing that contractual employees shall become regular employees only after seventeen months of employment, cannot bind petitioner. Such a provision runs contrary to law not only because contractual employees do not form part of the collective bargaining unit which entered into the CBA with private respondent but also because of the Labor Code provision on regularization. The law explicitly states that an employee who had rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee. The period set by law is one year. The seventeen months provided by the Minutes of Meeting is obviously much longer. The principle is well settled that the law forms part of and is read into every contract without the need for the parties expressly making reference to it.

Labayog v MY San Biscuits494 SCRA 486Specific Period

FACTS

On various dates in 1992, petitioners entered into contracts of employment with respondent company as mixers, packers and machine operators for a fixed term. On the expiration of their contracts, their services were terminated.Forthwith, they each executed a quitclaim.

On April 15, 1993, petitioners filed complaints for illegal dismissal, underpayment of wages, non-payment of overtime, night differential and 13th month pay, damages and attorneys fees. The labor arbiter ruled their dismissal to be illegalon the ground that they had become regular employees who performed duties necessary and desirable in respondent companys business. The labor arbiter ordered the reinstatement of petitioners with award of backwages, 13th month pay and service incentive leave pay.

On appeal to the National Labor Relations Commission (NLRC), the decision of the labor arbiter was set aside. Having entered into their employment contracts freely and voluntarily, they knew that their employment was only for a fixed period and would end on the prescribed expiration date. Petitioners motion for reconsideration was denied.

In a petition for certiorari filed by petitioners, the CA set aside the NLRC decision and reinstated the decision of the labor arbiter. However, on respondents motion for reconsideration, the CA reversed itself. The CA reasoned that, while petitioners performed tasks which were necessary and desirable in the usual business of respondent company, their employment contracts providing for a fixed term remained valid. No force, duress, intimidation or moral dominance was exerted on them.Respondents dealt with petitioners in good faith and within the valid parameters of management prerogatives. Petitioners motion for reconsideration was denied

ISSUE

W/N the period of work will determine the regularization of employee

HELD

Where the duties of the employee consist of activities which are necessary or desirable in the usual business of the employer, the parties are not prohibited from agreeing on the duration of employment. Article 280 does not proscribe or prohibit an employment contract with a fixed period provided it is not intended to circumvent the security of tenure.

Two criteria validate a contract of employment with a fixed period: (1) the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress or improper pressure being brought to bear on the employee and without any circumstances vitiating consent or, (2) it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter.Against these criteria, petitioners contracts of employment with a fixed period were valid.

Contracts of employment for a fixed period are not unlawful.What is objectionable is the practice of some scrupulous employers who try to circumvent the law protecting workers from the capricious termination ofemployment.Employers have the right and prerogative to choose their workers. The law, while protecting the rights of the employees, authorizes neither the oppression nor destruction of the employer. When the law angles the scales of justice in favor of labor, the scale should never be so tilted if the result is an injustice to the employer.

Poseidon v NLRC482 SCRA 717Seasonal Employees

FACTS

Poseidon Fishing is a company engaged in the deep-sea fishing industry. One of its boat crew was private respondent Estoquia. De Jesus is the manager of Poseidon Fishing. Estoquia was employed by Poseidon in Jan 1988 as Chief Mate. After five years, he was promoted to Boat Captain. In 1999 Estoquia was demoted without reason to Radio Operator. As Radio Operator, he monitored daily activities in their office and recorded in the duty logbook the names of the callers and time of their calls.

One day, he forgot to record on a logbook. That same day, Poseidons secretary summoned Estoquia to get his separation pay. Estoquia refused to accept it as he believed he did nothing illegal to warrant his immediate discharge.

Estoquia filed a complaint for illegal dismissal with the LA. Poseidon and de Jesus asserted that Estoquia was a contractual or casual employee; when he was engaged, it was made clear to him that he was being employed only on a por viaje (per trip) basis and that his employment would be terminated at the end of the trip for which he was being hired per the Kasunduan with him. Petitioners also asserted that deep-sea fishing is a seasonal industry as catching of fish could only be undertaken for a limited duration or seasonal within a given year and thus Estoquia was a seasonal or project employee.

ISSUE

Whether or not Estoquia was a seasonal or project employee

RULING

NO. The test to determine whether one is a project employee is W/N the said employee was assigned to carry out a specific project or undertaking, the duration and scope of which were specified at the time the employee was engaged for that project. Petitioners have not shown that Estoquia was informed that he will be assigned to a specific project or undertaking. Neither has it been established that he was informed of the duration and scope of such project or undertaking at the time of their engagement. Maraguinot Jr. v. National Labor Relations Commission established that once a project or work pool employee has been (1) continuously (vs. intermittently) re-hired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, the employee must be deemed a regular employee.

In the case at bar, the Kasunduan has such an objective: to frustrate the security of tenure of Estoquia. Petitioners intent to evade the application of Art 280 is unmistakable. In a span of 12 years, Estoquia worked for Poseidon first as a Chief Mate, then Boat Captain, and later as Radio Operator. His job was directly related to the deep-sea fishing business of Poseidon. His work was necessary and important to the business of his employer. Inasmuch as Estoquias functions are no doubt usually necessary or desirable in the usual business or trade of Poseidon and he was hired continuously for 12 years for the same nature of tasks, we are constrained to say that he belongs to the ilk of regular employee.

Viernes vs NLRC400 SCRA 557 (2003)Contract of fixed period

FACTS

Viernes et al were employed at a fixed term of less than one month as meter readers and were compensated as such. Despite the expiration of the contract, they were allowed to work for about two more months. Thereafter, their services were terminated. They filed a case for illegal dismissal contending that they were not apprentices but regular employees while the employer invoked article 283 of the Labor Code in its defense. The labor arbiter dismissed the case but the NLRC issued the reinstatement of Viernes and his peers in a probationary status. Viernes et al appealed.

ISSUE

Whether Viernes et al are probationary employees or regular employees under article 280 of the Labor Code

RULING

Viernes et al are regular employees and not probationary employees. A review of records shows that petitioners have never been probationary employees because there is nothing in the letter of appointment that indicates so. Private respondents adherence to the Brent School ruling is misplaced because it only applies to fixed term employments. The work done by Viernes et al beyond the October 31, 1990 contract is no longer on a fixed term basis there being no contract during the two months that Viernes et al rendered their services. Because of that, petitioners have attained the status of regular employees.

Under article 280 there are two separate instances whereby it can be said that an employment is regular: first is if the activity performed by the employee is necessary or desirable in the usual business of the employer and second is if the employee has been performing the job for at least a year. In this case, Viernes et al falls under the first category being meter readers of an electric company, and are therefore regular employees.

Since petitioners are already regular employees during the time they were dismissed, they have to be reinstated as regular employees and not probationary employees.

A Prime Security Services, Inc. vs NLRC 322 SCRA 283 (2000)Double probation

FACTS

Othello C. Moreno had been working as a security guard for a year with the Sugarland Security Services, Inc., a sister company of petitioner; that he was rehired as a security guard on January 30, 1988 by the petitioner and assigned to the same post at the U.S. Embassy Building along Roxas Boulevard, Manila; that he was among those absorbed by the petitioner when it took over the security contracts of its sister company, Sugarland Security Services, Inc., with the U.S. Embassy; that he was forced by petitioner to sign new probationary contracts of employment for six (6) months; that on August 1, 1988, his employment was terminated; that during his employment, the amount of P20.00 per month was deducted from his salary allegedly for withholding tax, although no withholding tax receipt was given to him, and the salary he was receiving was only P2,187.00 a month, which was way below the P2,410.17 stipulated in the PADPAO memorandum of agreement.

On February 23, 1989, Othello C. Moreno filed a complaint with the Department of Labor and Employment, Arbitration Branch, National Capital Region, against the petitioner, A' Prime Security Agency, Inc., for illegal dismissal, illegal deduction, and underpayment of wages. Docketed as NLRC-NCR Case No. 00-02-01038-89, the complaint was assigned to Labor Arbiter Valentin C. Guanio ("LA Guanio").

ISSUE/S

1. Whether private respondent's employment with A' Prime Security Services, Inc. was just a continuation of his employment with Sugarland Security Services, Inc.; and

2. Whether private respondent is a regular or probationary employee of petitioner

RULING

The Court cannot sanction the practice of some companies which, shortly after a worker has become a regular employee, effects the transfer of the same employee to another entity whose owners are the same, or identical, in order to deprive subject employee of the benefits and protection he is entitled to under the law.

On the issue as to whether the private respondent is a probationary or regular employee, the Court holds that the latter became a regular employee upon completion of his six-month period of probation. Private respondent started working on January 30, 1988 and completed the said period of probation on July 27, 1988. Thus, at the time private respondent was dismissed on August 1, 1988, he was already a regular employee with a security of tenure. He could only be dismissed for a just and authorized cause.

There is no basis for subjecting private respondent to a new probationary or temporary employment on January 30, 1988, considering that he was already a regular employee when he was absorbed by A' Prime from Sugarland, its sister company. Prime from Sugarland, its sister company

San Miguel Corporation VS. DEL ROSARIO477 SCRA 604REDUNDANCY

FACTS

Respondent Caroline Del Rosario was employed by petitioner as key account specialist. On March 9, 2001, petitioner informed respondent that her probationary employment will be severed at the close of the business hours of March 12, 2001. On March 13, 2001, respondent was refused entry to petitioners premises.Respondent filed a complaint against petitioner for illegal dismissal and underpayment/non-payment of monetary benefits.Petitioner claimed that respondent was a probationary employee whose services were terminated as a result of the excess manpower that could no longer be accommodated by the company. Respondent was allegedly employed on April 17, 2000.as a temporary reliever of Patrick Senen, an account specialist, who met an E. Her employment was thus terminated effective March 12, 2001. Petitioner is invoking a redundancy which allegedly resulted in the termination not only of the trainees, probationers but also of some of its regular employees.

As evidence of presentation shows, the continuous employment of respondent as an account specialist for almost 11 months, from April 17, 2000 to March 12, 2001, means that she was a regular employee and not a temporary reliever or a probationary employee.

ISSUE

Whether or not respondent was illegally dismissed.

RULING

Yes. Petitioner erroneously classified respondent as a probationary employee, resulting in the dismissal of the latter. Respondent Caroline C. Del Rosario, was a regular employee of petitioner San Miguel Corporation whose dismissal was valid but ineffectual for non-compliance with the requirement of one month notice in termination due to redundancy. The criteria in implementing a redundancy are: (a) less preferred status,e.g.temporary employee; (b) efficiency; and (c) seniority.

WHEREFORE, the employment status of respondent is declared regular, and her dismissal from employment, illegal. Petitioner is ordered toIMMEDIATELY REINSTATErespondent as a regular employee to her previous position, unless such positionno longer exists, in which case she shall be given a substantially equivalent position, without loss of seniority rights.

Buiser vs Leogardo131 SCRA 151 (1984)Duration / Exception

FACTS

Petitioners were employed by the private respondent GENERAL TELEPHONE DIRECTORY COMPANY as sales representatives and charged with the duty of soliciting advertisements for inclusion in a telephone directory.

The records show that petitioners Iluminada Ver Buiser and Ma. Mercedes P. Intengan entered into an Employment Contract (on Probationary Status) on May 26, 1980 with private respondent, a corporation engaged in the business of publication and circulation of the directory of the Philippine Long Distance Telephone Company. Petitioner Ma. Cecilia Rillo-Acua entered into the same employment contract on June 11, 1980 with the private respondent.

Failing to meet their respective sales quotas, the petitioners were dismissed from the service by the private respondent

ISSUE

Whether or not, Hon. Regional Director and the Hon. Deputy Minister committed grave abuse of discretion amounting to lack of jurisdiction in ruling that the probationary employment of petitioners herein is eighteen (18) months instead of the mandated six (6) months under the Labor Code

RULING

Generally, the probationary period of employment is limited to six (6) months. The exception to thisgeneral rule is when the parties to an employment contract may agree otherwise, such as when the same is established by company policy or when the same is required by the nature of work to be performed by the employee.

International Catholic Migration Commission vs NLRC169 SCRA 508 (1989)Duration / Exception

FACTS

Petitioner International Catholic Migration Commission (ICMC), a non-profit organization dedicated to refugee service at the Philippine Refugee Processing Center in Morong, Bataan engaged the services of private respondent Bernadette Galang on January 24, 1983 as a probationary cultural orientation teacher with a monthly salary of P2,000.00.

Three (3) months thereafter, or on April 22, 1983, private respondent was informed, orally and in writing, that her services were being terminated for her failure to meet the prescribed standards of petitioner as reflected in the performance evaluation of her supervisors during the teacher evaluation program she underwent along with other newly-hired personnel.

Private respondent filed a complaint1for illegal dismissal, unfair labor practice and unpaid wages against petitioner with the then Ministry of Labor and Employment, praying for reinstatement with backwages, exemplary and moral damages.

ISSUE

Whether or not an employee who was terminated during the probationary period of her employment is entitled to her salary for the unexpired portion of her six-month probationary employment.

RULING

There was no showing, as borne out by the records, that there was circumvention of the rights of private respondent when she was informed of her termination. Her dismissal does not appear to us as arbitrary, fanciful or whimsical. Private respondent was duly notified, orally and in writing, that her services as cultural orientation teacher were terminated for failure to meet the prescribed standards of petitioner as reflected in the performance evaluation conducted by her supervisors during the teacher evaluating program. The dissatisfaction of petitioner over the performance of private respondent in this regard is a legitimate exercise of its prerogative to select whom to hire or refuse employment for the success of its program or undertaking. More importantly, private respondent failed to show that there was unlawful discrimination in the dismissal.

It was thus a grave abuse of discretion on the part of public respondent to order petitioner to pay private respondent her salary for the unexpired three-month portion of her six-month probationary employment when she was validly terminated during her probationary employment.

Cebu Royal Plant v DOLE 153 SCRA 38Disease

FACTS

Private respondent, Ramon Pilones, was employed by petitioner Cebu Royal Plant. The public respondent held that Pilones was already a regular employee and so was entitled to security of tenure. Pilones was dismissed because he was diagnosed with pulmonary tubercolosis terminal in the medical exam conducted by the petitioners physician. Petitioner Cebu Royal Plant claims that his dismissal was not only in conformity with company policy but also necessary for the protection of the public health, as he was handling ingredients in the processing of soft drinks which were being sold to the public.

ISSUE

WON the termination was justified

RULING

NO. Section 8, Rule I, Book VI, of the Rules and Regulations Implementing the Labor Code reading as follows:

Sec. 8. Disease as a ground for dismissal. Where the employee suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, the employer shall not terminate his employment unless there is a certification by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment. If the disease or ailment can be cured within the period, the employer shall not terminate the employee but shall ask the employee to take a leave. The employer shall reinstate such employee to his former position immediately upon the restoration of his normal health.

The record does not contain the certification required by the above rule. The medical certificate offered by the petitioner came from its own physician, who was not a "competent public health authority," and merely stated the employee's disease, without more.

The Court granted Pilones backwages and reinstatement only upon certification by a competent public health authority that he is fit to return to work.

DUSIT HOTEL NIKKO V. NUWHRAIN 466 SCRA 374REDUNDANCY

FACTS

The PHI owned and operated the Dusit Hotel Nikko. Since March 1, 1984, Rowena Agoncillo was employed by the Hotel. After some time, she was promoted as Supervisor of Outlet Cashiers and later promoted as Senior Front Office Cashier, with a monthly salary ofP14,600.00, inclusive of service charge.[3]In January 1995, the Hotel decided to trim down the number of its employees from the original count of 820 to 750. On February 21, 1996, the Hotel, through an Inter-Office Memorandum signed by the general manager of Dusit, Yoshikazu Masuda, offered a Special Early Retirement Program (SERP) to all its employees. It was stated therein that the program was intended to provide employees financial benefits prior to prolonged renovation period and, at the same time, to enable management to streamline the organization by eliminating redundant positions and having a more efficient and productive manpower complement. On April 1, 1996, the Hotel wrote Regional Director Romeo Young of the Department of Labor and Employment (DOLE), National Capital Region, informing him that the Hotel terminated the employment of 243 employees due to redundancy. On the same day, Agoncillo was summoned by Hotel Comptroller Reynaldo Casacop, who gave her a letter of even date informing the latter of her separation from service due to redundancy effective close of office hours of April 30, 1996.[7]

Casacop advised Agoncillo to just avail of the Hotel's SERP, as embodied in the inter-office memorandum of Masuda.[8]He informed her that she had the option to avail of the program and that, in the meantime, he will defer the processing of her termination papers to give her time to decide. On April 3, 1996, Agoncillo finally told Casacop that she would not avail of the SERP benefits. By then, she had decided to file a complaint for illegal dismissal against the Hotel.

ISSUE

Whether or not terminating the employment services of respondent is valid

RULING

The termination is invalid. Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. A reasonably redundant position is one rendered superfluous by any number of factors, such as overhiring of workers, decreased volume of business, dropping of a particular product line previously manufactured by the company or phasing out of service activity priorly undertaken by the business. Among the requisites of a valid redundancy program are: (1) the good faith of the employer in abolishing the redundant position; and (2) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. As found by the SOLE, the NLRC and the CA, the position of respondent Agoncillo was not abolished or declared redundant. In fact, the petitioners hired an entirely new set of employees to perform the tasks of respondent Agoncillo,

A.M. ORETA VS. NLRC176 SCRA 218 (1989)EMPLOYER OBLIGATION

FACTS

Private respondent Grulla was engaged by Engineering Construction and Industrial Development Company (ENDECO) through A.M. Oreta and Co., Inc., as a carpenter in its projects in Jeddah, Saudi Arabia. The contract of employment, which was entered into June 11, 1980 was for a period of twelve (12) months. On October 9, 1980, he received a notice of termination of his employment. He filed a complaint for illegal dismissal. Petitioner contends that the respondent Grulla was validly dismissed because the latter was still a probationary employee; and that his dismissal was justified on the basis of his unsatisfactory performance of his job during the probationary period.

ISSUE

Whether respondent Grulla was illegaly terminated by the petitioner?

RULING

Yes. A perusal of the employment contract reveals that although the period of employment of respondent Grulla is twelve (12) months, the contract is renewable subject to future agreements of the parties. It is clear from the employment contract that the respondent Grulla was hired by the company as a regular employee and not just mere probationary employee. Also, nowhere in the employment contract executed between petitioner company and respondent Grulla is there a stipulation that the latter shall undergo a probationary period for three months before he can qualify as a regular employee.

Respondent Grulla was not, in any manner, notified of the charges against him before he was outrightly dismissed. Neither was any hearing or investigation conducted by the company to give the respondent a chance to be heard concerning the alleged unsatisfactory performance of his work.