Published — February 28, 2018
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Related Topic: How to Dismiss an Erring Employee the Right Way
When hiring employees, business owners need to be conscious as to the status of their employees. It is so because this directly affects the latter’s right to security of tenure, which the employer is duty-bound not to curtail despite its inherent prerogative to discipline employees and to shape its own workforce. To begin with, security of tenure means that employment can be terminated by an employer only if there is just or authorized cause as provided by law.
Types of employment
Though employees enjoy the right to be secured in their tenure, the application of the right may vary depending upon the employee’s status of employment. Under the Labor Code [Arts. 259 & 296], there are five kinds of employment:
- Regular employment;
- Project employment;
- Seasonal employment;
- Casual employment;
- Probationary employment;
Philippine jurisprudence, however, has added another type, which is the “fixed-term employment” [See: G.R. No. L-48494].
Security of tenure on regular employment
Regardless of the written or oral agreements of the parties, an employment is deemed 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. The full protection of the right to security of tenure applies to regular employment [See: Mañalac, Philippine Labor Laws and Jurisprudence, 6th Ed. (2003), pp. 116-117]. Under the law, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement [See: G.R. No. 106600].
Security of tenure on project employment
A project employee has been defined to be one whose 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 [G.R. No. 170351]. The end or completion of a project effectively terminates the employment of the project employees [Mañalac, Supra].
Security of tenure on seasonal employment
Seasonal employment operates much in the same way as project employment, though it involves work or service that is seasonal in nature or lasting for the duration of the season. To be considered a “seasonal” employee, the employer must show that: (1) the employee must be performing work or services that are seasonal in nature; and (2) he had been employed for the duration of the season.
Hence, when the “seasonal” workers are continuously and repeatedly hired to perform the same tasks or activities for several seasons or even after the cessation of the season, this length of time may likewise serve as badge of regular employment. In fact, even though denominated as “seasonal workers,” if these workers are called to work from time to time and are only temporarily laid off during the off-season, the law does not consider them separated from the service during the off-season period. The law simply considers these seasonal workers on leave until re-employed [See: G.R. No. 186439].
Security of tenure on casual employment
The Labor Code classifies as casual an employment that does not fall within the definition of regular, project and seasonal employment. Under the law, 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 [Art. 295].
Security of tenure on probationary employment
Probationary employment shall not exceed 6 months from the date the employee started working. An employee who is allowed to work after a probationary period shall be considered a regular employee [Art. 296].
A probationary employee, like a regular employee, enjoys security of tenure. However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of the engagement. Thus, the services of an employee who has been engaged on probationary basis may be terminated for any of the following: (1) a just or (2) an authorized cause; and (3) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer [G.R. No. 177937].
Security of tenure on fixed-term employment
An employee is said to be under a fixed-term employment when he is hired under a contract which specifies that the employment will last only for a definite period. The decisive determinant in fixed-term employment should not be the activities that the employee is called upon to perform, but the day certain agreed upon by the parties for the commencement and termination of their employment relationship [See: G.R. No. 211263].
The following indicators for fixed-term employment should be present, so that it could not be construed as a circumvention of the law on security of tenure:
- 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 upon the employee and absent any other circumstances vitiating his consent; or
- It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter [Ibid].
Since every employment type would differ in determining the employees’ rights to be secured in their tenure, ensuring that such employees fall within the intended classification should be a priority for every employer the moment they hire. After all, making informed decisions regarding personnel actions, especially in exercising the management’s prerogative to discipline its own employees, would depend a lot on how well the employer knows how their employees are classified.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding employment disciplinary procedures, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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