BOOK XI POST-EMPLOYMENT OF EVERYONE’S LABOR BY AZUCENA

Article 294 [279] SECURITY OF TENURE exact date, but on the completion of the
project.
Regular employment  Nature of employment determines regular
employment.
- “Tenure” is the duration, the time-period of Two broad types of project
holding a job. 1) Distinct, identifiable, such project begins and
- Sec 3, Article XIII, security of tenure means the ends at determined or determinable times
right not to be removed from one’s job except (ex: construction project)
for a valid reason and through proper 2) Job is not within the regular business of the
procedure. corporation (ex: steel making company
- “the employer shall not terminate the services undertaking the breeding of fish or
of an employee except for a just cause or when cultivation of vegetables)
authorized by” the code.
*** Project employees are extended
Article 295 [280] REULAR AND CASUAL long after the supposed project has
been finished = they are considered
EMPLOYMENT regular employees:
 “every employee shall be entitled to the a) Continuous rehiring of the project
employee
rights and privileges and shall be subject to
b) Tasks performed by the project
the duties and obligations, as may be employee are vital, necessary and
granted by law to regular employees during indispensable to the usual business
the period of their actual employment.” c)
d) ssEmployment
Seasonal or trade of the employer.
Regular Employment
 Working at least one year  When the company is sold, they are entitled
 Work is desirable and usual to the business to separation pay
 Engaged to perform tasks usually necessary  Seasonal employee as regular employees
and desirable to the business of the  They are not strictly separated from the
employer service but are merely considered as on
 Regular employment does not mean leave of absence without pay until they are
permanent employment reemployed.
 A probationary employee is  Employment relationship is never served by
considered regular after 6 months, only suspended.
becomes regular.  The worker is “seasonal” if the employment
 May be terminated only for just / authorized is only for the duration of one season.
causes.
 Nature of the job is that determines *** Workers who have been employed
regularity or casualness of the employee doing the same task for several years
 The employer shall not terminate the or for more than one season = regular
services of an employee except for a just employment applies
cause or when authorized by this Title.
o Entitles to reinstatement without loss of
seniority rights and other privileges and Casual Employment
his full backwages, inclusive of  A casual employee is casual for only one
year
allowances and his other benefits
 Employment is casual when it is irregular,
Two kinds of regular employee unpredictable, sporadic and brief in nature
1) Those who are engaged to perform activities and outside the usual business of the
which are usually necessary or desirable; employer.
2) Those who rendered at least one year of  Work is not permanent nor periodically
service, whether continuous or broken with regular but occasional or by chance, and not
respect to the activity. the usual course of the employer’s trade or
business.
Project Employment
 no obligation to pay them separation pay *** Work is neither regular, nor project
 One whose employment has been fixed for nor seasonal, but if he has worked for at
a specific project or undertaking the least one year -whether continuously or
completion or termination of which has been not = he becomes a regular employee
determined at the time of engagement of the due to passage of time.
employee
 the period is not the determining factor, so *** When that activity recurs, he is the
that even if the period is more than 1 year, one to be rehired = regular casual
employee does not necessarily become employee
regular
 Right of security of tenure for a
 “Project employees” were assigned to carry
out a “specific project or undertaking” particular job;
 “Day Certain” Rule – project employment  Employer needs a just or
ends on a certain date does not end on an authorized cause to cease
rehiring him
 BOOK XI POST-EMPLOYMENT OF EVERYONE’S LABOR BY AZUCENA

Fixed Period Employment  A probationary employee is one who is on

 fixed term employment contracts none of tentative employment during which the
which was extended beyond the initial five- employer determines whether he is qualified
month period for permanent employment.
 Employment that will last only for a definite  The employer shall make known to the
period, as agreed by the parties, is not per employee at the time he is hired the
se illegal or against public policy even if this standard by which he will quality as a
kind of employment is not mentioned in Art. regular employee
295 by justified under the Civil Code.  Termination to probationary employees =
 Fixed-term employment contracts or those just and authorized causes due to failure to
to which the parties by free choice have meet pre-agreed standard is a valid reason
assigned a specific date of termination to proceed to termination.
 Employment contract to be valid
 Employer and employee should appear to *** if no documentary evidence shows
be dealt with each other on more or less that the employee is probationary, be is
equal terms with no moral dominance being regular
exercised by the employer over the
employee.
 Fixed-term employment will not be Three limitations to terminating a probationary
considered valid if it has been imposed to employment:
preclude acquisition of tenurial security by 1) It must accord with the requirements of the
the employee contract;
2) The dissatisfaction of the employer is read
Two criteria so the term employment may not violate and in good faith, not feigned to circumvent
the law on security of tenure the law or contract;
1) Fixed period employment was knowingly 3) There is no unlawful discrimination against
and freely agreed upon by the parties; no the employee
circumstance such as force, duress or ** if probationary employee is unjustly
improper pressure vitiates the employee’s dismissed, reinstatement is proper relief, but
consent and; separation pay in lieu of reinstatement should be
2) The employer and employee dealt with each awarded.
other on more or less equal terms with no
moral dominance exercised by the former Private school teachers
over the latter.  Acquisition of permanent employment or
security of tenure:
*** direct-hired employee is doing a) The teacher is a full-time teacher
necessary or desirable job, the three- b) The teacher must have rendered three
month fixed term of the employment, consecutive years of service
renewed several times that exceed one c) Such service must have been
year = regular employee satisfactory

Article 296 [281] PROBATIONARY Article 297 [282] TERMINATION BY

EMPLOYMENT EMPLOYER
 Shall not exceed six (6) months from the  The employer may terminate an
date the employee started working unless it employment for any of the following causes:
is covered by an apprenticeship agreement a) Serious misconduct of willful
stipulating a longer period. disobedience
 Probationary or temporary employee has a b) Gross and habitual neglect of his duties
limited tenure, he stull enjoys security of c) Fraud or willful breach of trust
tenure. d) Commission of a crime or offense by the
 However, it can exceed 6 months if that is employer against the person of his
the agreement of the parties due to the job employer or any immediate member of
complexity that the employer needs a longer his family or his duty authorized
period to assess the qualifications and representative; and
fitness of the probationer. e) Other causes analogous to foregoing
 Probationary period of 6 months means 180
days (Art. 13 of Civil code: month: 30 days)  The law is protecting the rights of the laborer
 But a double (or multiple) probation is not authorizes neither oppression nor self-
allowed. destruction of the employer.
 The employer’s right to select or discharge
*** employee who is allowed to work his employees is subject to regulation by the
after a probationary period shall be State basically in the exercise of its
considered a regular employee paramount police power.
 Preservation of the lifeblood of the toiling
laborer comes before concern for business
profits.
 BOOK XI POST-EMPLOYMENT OF EVERYONE’S LABOR BY AZUCENA

Due Process 1) reasonable and lawful

 Any worker to be removed from his job is 2) sufficiently made known to the
entitled to “due process” employee; and
Two senses 3) In connection with the duties which the
1) Substantive due process which means the employee has been engaged to
employee’s dismissal is justified by lawful discharge.
and valid reason,  Reasonableness, however has reference
2) Procedural due process which requires not only to this kind of character of directions
ample opportunity for the worker to explain and commands, but also to the manner in
his side before his is dismissed which they are made.
 Absence of procedural due process does
not invalidate the dismissal but makes the Ignorance an excuse?
employer liable for monetary penalty.  Employee claims ignorance of the company
policy he violated, the employer should
Two group causes disprove his ignorance otherwise the
 The valid causes of dismissal are called employee cannot be punished. (element #2)
“just” under Art. 297 and “Authorized” under  The implied contract binds both the
Art. 298 and 299. employer and employees which means that
changes in company policy can happen after
employees have been hired.
Just cause
 refer to faults, misdeeds, of the Prohibited Relationship
employee  A policy prohibiting an employee from
 dismissal for a just cause does not having a relationship with an employee of a
make the employer liable for competitor company, so as to protect the
separation pay except that, based employer’s business secrets, is a valid
on compassion financial assistance exercise of management prerogatives.
 consist in notifying and hearing the “Non-compete” clause; conflict of interest
employee
 dismissal due to just cause is Refusal to Transfer
determined by the employer  An employee should, as a rule, obey an
Authorized cause employer’s order transferring him from one
 causes refer to business or job assignment, or one location, to another.
economic reasons  Inconvenience to the employee does not
 employer is required by law to pay justify disobedience to the transfer order.
separation pay to the employee,
except in the case of closure or Neglect of Duties
cessation of operation due to  To constitute a just cause for the employee’s
serious business losses duly dismissal, the neglect of duties must not be
proved. gross but also habitual
 No hearing is needed but notices to
 Absence of that diligence that an ordinarily
the employee and to DOLE should
prudent man would use his own affairs.
be given 30 days before the
 Abandonment of job is a form of neglect of
employee’s separation
duty, two elements must concur:
 Separation due to an authorized
1) The failure to report for work or absence
cause takes effect at least 30 days
without valid or justifiable reason
after the employee received the
2) A clear intention to sever the employer-
notice.
employee relationship, with the second
element as the more determinative
 Due process should be observed in both the factor and being manifested by some
just and the authorized causes. overt acts
Just Causes: Serious Misconduct Fraud, Loss of Confidence
 Misconduct is improper or wrong conduct  Fraud has been defined as any act, mission
 Transgression of some established and or concealment which involves a breach of
definite rule of action, a forbidden act, a legal duty, trust or confidence justly reposed,
declaration of duty, willful in character, and as is injurious to another.
implies wrong intent and not mere error in
judgment.
 Serious within the meaning of the Act must
be of such a grave and aggravated
character and not merely trivial or
unimportant.

Willful Disobedience
 This may constitute a just cause for
termination employment must meet three
elements: