Azucena Summary

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Azucena Summary o Lawful cause

o Proper procedure
Security of Tenure
ART 295: Regular and Casual Employment
 In cases of regular employment, the employer shall
NOT terminate the services of an employee except for The provisions of written agreement to the contrary,
just cause or when authorized by this title. An notwithstanding and regardless of the oral agreement of
employee who is unjustly dismissed from work shall the parties, an employment shall be deemed to be regular
be entitled to reinstatement without loss of seniority where the employee has been engaged to perform
rights and other privileges and to his full backwages, activities which are usually necessary in the usual course
inclusive of allowances, and to his other benefits or of business or trade of the employer, except where the
their monetary equivalent computed from the time his employment has been fixed for a specific project or
compensation was withheld from him to the time of undertaking, the completion or termination of which has
his actual reinstatement been determined at the time of engagement of the
 Right that cannot be easily denied, it is protected by employee or where the work or service or be performed is
the Constitution seasonal in nature and the employment is only for the
 Applies to both regular and irregular employees duration of the season.
o Probationary, project, contractual
 Also enjoys the security of tenure An employment shall be deemed to be casual if it is not
o Regular EE: Security of tenure for an covered by the preceding if it is not covered by the
unlimited period of time preceding paragraph, provided that any employee who
o Probationary, Project, Contractual: security has rendered at least one year of service, whether such
of tenure for a LIMITED period of time service is continuous or broken, shall be considered a
regular employee with respect to the activity in which he is
 Tenure of Managerial Personnel employed and his employment shall continue until such
o ERs have a wider latitude of discretion in activity exists
terminating these EEs
o Loss of trust and confidence is an enough  ART 295 is applicable only if an ER-EE
ground relationship exists
o Termination is not entirely up to ER  There is no ER-EE relationship:
o Also entitled to security of tenure, fair o Independent contractor
standards of employment and protection of o Agency
labor laws  If there is a dispute as to the ER-EE relationship,
o College dean is also entitled to security of this provision does not apply
tenure
REGULAR EMPLOYMENT
 NOTE: in-house counsel is
considered as a Regular EE  Reasonable connection between the particular
 Lawyer on retainer: not activity performed by the EE in relation to the
regular usual business of ER
 Rank and File EEs: Requires more proof when they  Depends on the nature of the work
will be terminated  TEST: Whether the work performed is usually
necessary and desirable
EMPLOYMENT AT WILL
REGULAR VS CASUAL
 EEs in this case have no assurance about their
working condition and employment  BASIS: Nature of the job
 Can be terminated by ER at anytime, for any reason  Work is integral part of the business but worker
 N/A in the Philippines has no independent professional service
 Applicable if knowingly entered into by a Filipino but o If the worker has an independent
the company is located abroad professional service with sufficient
 RA 1787: Employment with no definite period can capital, and there is no power of control
only be terminated for just cause over the worker, he is not an EE but an
independent contractor
Employment termination: must be accorded with due
process TWO KINDS OF REGULAR EEs
1) Regular EEs by nature of work: UND CASUAL EMPLOYEE
2) Regular EEs by years of service: Not UND, Casual
EEs that rendered at least a year of service  Regular EE by years of service
 Regular only for the activity in which he was hired
When the worker is hired  On and off, but when particular activity arises he/she
is the one who is to be rehired
 Nature of work is UND  Casual becomes regular after one year of service
o Regular EE  When a C.E. is converted to RE, there should be no
 XPN: If at the time of decrease in benefits.
engagement, it is known to
employee that he is only hired May regular jobs be contracted out?
for a specific project (Project
EE), For the duration of ONE  Terminating the work of EEs
season (Seasonal EE), Fixed  Reduces work horurs
term EE  Reduces/splits bargaining units
o But if an independent contractor, not an
EE Termination of work due to redundancy is an authorized
 IC reqts cause under the L.C. and so long as there is no grave
 Sufficient funds, no abuse of discretion, it is alright.
power of control and
sufficient equipment  For redundancy to be a valid cause for
termination, it must be done in good faith, hence
 When nature of work is UND
court will not interfere
o Rendered at least one year of service:
REGULAR
OUTSOURCING & CONTRACTING OUT IS THE SAME
In case there is the existence of trilateral relationship
 Occurs when the firms use subcontractors to
carry out specific tasks rather than hiring internal
 Principal
employees to do their work
o Hires the independent contractor and
o VALID, so long as no CBA violation?
the I.C. Supplies the workers
o No EE-ER with the worker  Management prerogative, workers permission
are not needed in this case
 Worker
o Works for the company of I.C.
PROJECT EMPLOYMENT

 Independent contractor  Employment is fixed for a specific period or


o Hired by the principal, has ER-EE undertaking and it is known at the time of
relationship with worker engagement
 Work is seasonal in nature, and employment is
 Labor only contracting: frowned upon, and only only for the duration of the season
supply manpower to the company, in effect, the EEs
supplied become EEs of the principal Requisites
o HOW DO YOU BECOME LOC?
 No sufficient capital or equipment  Designated as a project employee
 Principal exercises power of control  Clear from the time of engagement
over you  Specificity of the project
 DURATION: Coterminous with the project for
NOTE: Perpetual employment is not allowed under the which they were hired
L.C.
PRINCIPAL TEST:
Case: Day to day contractuals are deemed Regular EEs
as they were repeatedly hired for more than a year, and  Assigned to carry out a specific project
work is UND in the nature of the business  Duration of time is known or at least determinable
at the time of engagement
NOTE: ERs are required to submit the fact of termination 1) Regular seasonal: called to work from time to
of each project EE, to the proper authority, otherwise, the time, season after season
EE will be deemed as a regular EE o Same line of work
o If free to work with anyone, seasonal
TWO TYPES OF PROJECT EES only

1) Performed UND CASUAL EMPLOYMENT


2) No connection to the business of ER
 An employee is engaged to perform a job/work
When the work is UND, the worker either becomes or service which is merely incidental to the
business of the employer and such job, work or
 Regular EE service is for a definite period made known to EE
 Project EE  If more than a year, becomes a regular
 Seasonal EE

Project & Seasonal EE are also entitled to security of


tenure, at least for the duration of the period of their work FIXED PERIOD DOCTRINE

D.O. 10 Section 2-2  Difference with project EE is that a project


Employment's duration is predetermined at the
 That the duration of the specific/identified time of hiring
undertaking for which the EE is hired is  A project employment is a fixed period
reasonably determinable employment
 Conditions in letter is confined in an employment
agreement and reduced in writing Requisites for a fixed-term employment to be valid
 The work or service performed by EE in in
connection with the project for which he is  There is no vitiation of consent when the
engaged employee entered such contract
 EE while not employed is free to work for others  Must be on equal footing with the employer,
 Termination of project EE is reported to the hence, no moral ascendancy
proper authority  Intention of contract is not to circumvent the
security of tenure
WORK POOL – employees of a workpool are either
regular and project or either, depends on a case to case Notes
basis
 ER cannot preterminate the EE if there is no just
PROJECT EEs or valid cause
 If EEs are retained even after the fixed-term
 Not entitled to separation pay if separation is period, in the absence of a new contract they
after the completion of such project maintain their regularity
 Clearance is not needed, only the report of the  If contracts are intentionally made to circumvent
termination is what is needed security of tenure, such contracts are VOID.
 If the project EEs contract has already expired, o ENDGAME: Regular EE
but the PROJECT EE still works, he should not
be terminated Rules on seafarers
 If rehired after continuance: regular
 Domestic: Regular EEs, enjoy security of tenure
 OVERSEAS: fixed-period

SEASONAL EMPLOYMENT

 Hired only to work in a job that is seasonal in PROBATIONARY EMPLOYMENT


nature, and is hired only for the duration of ONE
 Probationary employment shall not exceed 6 months
season
from the time EE started working
o XPN: apprenticeship agreement stipulating a
longer period
 Termination grounds of a probationary EE
o Just causes
o valid causes
o when he fails to quality as a regular
employee
 standards, in order to qualify in this
case, should have been made
known to him at the time of
engagement
 An EE who is allowed to work after probationary
period is a regular EE

CONDITIONS AND STANDARDS OF PROBATION

 Must be expressly agreed upon, otherwise


regular
 Terminated only for just, authorized, fails to
qualify
 Employee at the time of engagement should be
informed of the standards EE should meet,
otherwise, regular

Limitations of termination of probation

 Must be exercised in accordance with specific


requirements of a contract
 If a particular time is prescribed, the termination
must be within such time and if formal notice is
required. Then that form must be used
 ER, satisfaction must be real and in good faith
 No unlawful discrimation

Duration & Termination of employment

 Probationary EE can be dismissed at any time


for cause
 If extends after 6 months, regular
o XPN: Can still be probationary, if upon
entering the contract, the probationary
period is more than 6 months
 Same is established by
company policy
 Nature of work requires
o XPN: If the EE was extended because
of ex gratia on part of ER, it is valid
 Probation in sister company is not allowed
o EE after probationary period is sent to a
sister company to be Probationary
employee again
 If this is done, employee is
deemed to be as REGULAR

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