Professional Documents
Culture Documents
REGULAR
PROJECT
SEASONAL
CASUAL, not regular, project or sasonal
PRESENTATION
JURISDICTION OF LABOR ARBITERS
1. UNFAIR LABOR PRACTICE (ULP);
2. TERMINATION DISPUTES;
2
EMPLOYER-EMPLOYEE RELATIONSHIP
14
See Joeb Aliviado, et al. v. Procter & Gamble Phils., Inc., et al., G.R. No. 160506, 9 March 2010.
DOLE Phils., Inc. v. Esteva, et al., 509 SCRA 332, 376, 30 November 2006.
16
Corporal v. NLRC, 341 SCRA 658, 666, 2 October 2000.
17
Abante v. Lamadrid Bearing and Parts Corp., 430 SCRA 368.
15
REGULAR EMPLOYMENT
It is settled that no particular form of employer-employee relationship is
required to prove the existence of employer-employee relationship. 20 Any
competent and relevant evidence to prove the relationship may be admitted. 21 In
fact, testimonial evidence is sufficient to prove employer-employee relationship,
and the absence of time sheet, time record or payroll has become
inconsequential.22 This is because if only documentary evidence would be
required to show that relationship, no scheming employer would even be brought
before the bar of justice, as no employer would wish to come out with any trace
of the illegality he has authored considering that it should take much weightier
proof to invalidate a written instrument. 23
The test of whether or not an employee is a regular employee has been
laid down in the case of DE LEON vs. NLRC, et al .24, in which the Supreme
Court held:
The primary standard, therefore, of determining whether
employment is regular is the reasonable connection between the
particular activity performed by the employee in relation to the usual
trade or business 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 a year, even if the performance
is not continuous and merely intermittent, the law deems 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 considered regular, but only with respect
to such activity, and while such activity exists.
(Emphasis
supplied)
business of the employer, taking into account all the circumstances, including the
length of time of its performance and its continued existence. 25
It bears stressing that the employment status of a person is defined and
prescribed law and not what the parties say it should be. 26
Thus, as defined under Article 280 of the Labor Code, a regular employee
is one who is engaged to perform activities which are usually necessary and
desirable in the usual business or trade of the employer as against those which
are undertaken for a specific project or seasonal. Even in these latter cases,
where such person has rendered at least one year of service, regardless of the
nature of the activity performed or of whether it is continuous or intermittent, the
employment is considered regular as long as the activity exists, it not being
indispensable that he be first issued a regular appointment or be formally
declared as such before acquiring a regular status. 27
Jurisprudentially, Article 280 of the Labor Code does not proscribe or
prohibit an employment contract with a fixed period. It does not necessarily follow
that where the duties of the employee consist of activities usually necessary or
desirable in the usual business of the employer, the parties are forbidden from
agreeing on a period of time for the performance of such activities. There is
nothing essentially contradictory between a definite period of employment and
the nature of the employees duties. What Article 280 of the Labor Code, as
amended, seeks to prevent is the practice of some unscrupulous and covetous
employers who wish to circumvent the law that protects lowly workers from
capricious dismissal from their employment. The aforesaid provision, however,
should not be interpreted in such a way as to deprive employers of the right and
prerogative to choose their own workers if they have sufficient basis to refuse an
employee a regular status. Management has rights which should also be
protected.
While Article 280 of the Labor Code, as amended, does not forbid fixed
term employment, it must, nevertheless, meet any of the following guidelines in
order that it cannot be said to circumvent security of tenure: (1) that 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 (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.28
A project employee is assigned to carry out a specific project or
undertaking the duration and scope of which are specified at the time the
employee is engaged in the project.29 A project employee is assigned to a project
which begins and ends at determined or determinable times. 30
In D. M. Consunji, Inc. v. NLRC,31 the Supreme Court has ruled that the
length of service of a project employee is not the controlling test of employment
tenure but whether or not the employment has been fixed for a specific project or
25
Bienvenido D. Goma vs. Pamplona Plantation, Inc., G.R. No. 160905, July 4, 2008.
Pedro Chavez v. NLRC, et al., G.R. No. 146530, 17 January 2005.
27
Article 280 of the Labor Code.
28
Rowell Industrial Corp. v. CA, 167714, 7 March 2007.
29
Integrated Contractor and Plumbing Works, Inc. v. NLRC and Glen Solon, G. R. No. 152427; Palomares
v. NLRC, 277 SCRA 439.
30
Id.
31
348 SCRA 441, 447.
26
PROBATIONARY EMPLOYMENT
In Manlimos v. NLRC,32 it was held that the constitutional protection on the
probationary employee ends upon the expiration of the period provided for in the
probationary contract of employment. Thus, a probationary employee remains
secure in his or her employment during the time that employment contract
remains in effect, but the moment the probationary period expires, the employee
can no longer invoke the constitutional protection. Thereafter, the parties are free
to renew the contract or not; or for the employer to extend to such employee a
regular or permanent employment. If the employee is not given a permanent or
regular employment contract on account of his unsatisfactory work performance,
it cannot be said that he was illegally dismissed. In such case, the contract
merely expired.33
The employment of a probationary employee may only be terminated
either: (1) for a JUST CAUSE; or (2) when the employee FAILS TO QUALIFY to
qualify as a regular employee in accordance with the REASONABLE
STANDARDS made known to him by the employer AT THE START OF HIS
EMPLOYMENT.
Unlike the first ground (just cause), the termination of probationary
employee under the second ground (failure to qualify) does not require notice
and hearing (Philippine Daily Inquirer, Inc. v. Leon Magtibay, Jr., et al., G.R. No.
164532, 27 July 2007). Due process of law for this second ground consists of
making the REASONABLE STANDARDS expected of the employee during his
probationary period KNOWN to him at the time of his probationary employment.
By the very nature of a probationary employee, the employee KNOWS from the
very start that he will be under close observation and continuous scrutiny by his
superiors. It is in APPRAISING him of the STANDARDS against which his
performance shall be CONTINUOUSLY ASSESSED where due process
regarding the second ground lies, and NOT in notice and hearing as in the case
of first ground.
TERMINATION DISPUTES
The statutory rule is that in illegal dismissal, the burden of proof rests on
the employer to show that the employee was dismissed on a valid and just
cause, and failing to discharge such burden, the employer should be adjudged
guilty of illegal dismissal. After all, dismissal connotes a permanent severance or
complete separation from the service on the initiative of the employer regardless
of the reasons therefor.34
This legal principle, nevertheless, presupposes that the employer has
committed a positive and overt act of dismissal, without which the complaint for
illegal dismissal must be dismissed outright. 35 Moreover, it has been held that
32
absent any showing that the employer intended to dismiss the employee, there
can be no dismissal.36
The rule that the employer bears the burden of proof in illegal dismissal
cases finds no application where the employer denies having dismissed the
employee. 37 While the employer bears the burden in illegal dismissal cases to
prove that the termination was for a valid or authorized cause, the employee
must first establish the fact of dismissal. 38 In other words, in illegal dismissal
cases, it is incumbent upon the employees to first establish the fact of their
dismissal before the burden is shifted to the employer to prove that the dismissal
was legal.39
It is a BASIC PRINCIPLE that in the dismissal of employees, the BURDEN
OF PROOF rests upon the employer to show that the dismissal is for a JUST
CAUSE and FAILURE to do so would necessarily mean that the dismissal is
NOT JUSTIFIED.40
The principle echoed and reechoed in jurisprudence is that the ONUS of
proving that the employee was dismissed for a JUST CAUSE rests on the
employer,41 and the latters FAILURE to discharge that burden would result in a
finding that the dismissal is UNJUSTIFIED.42
To discharge the BURDEN OF PROOF, the EMPLOYER must present
SUBSTANTIAL EVIDENCE to substantiate the CAUSE of a workers dismissal.
Substantial evidence is that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion, 43 even if other equally
reasonable minds might conceivably opine otherwise.
Case law holds that constructive dismissal occurs when there is cessation
of work because continued employment is rendered impossible, unreasonable or
unlikely; when there is demotion in rank or diminution in pay or both; or when a
clear discrimination, insensibility, or disdain by an employer becomes unbearable
to the employee.44 Constructive dismissal is a dismissal in disguise or an act
amounting to dismissal but made to appear as if it were not.
In cases of transfer of an employee, the rule is settled that the employer is
charged with burden of proving that its conduct and action are for valid and
legitimate grounds, such as genuine business necessity. The employer must
demonstrate that the transfer is not unreasonable, inconvenient, or prejudicial to
the employee and that the transfer does not involve a demotion in rank or
diminution in salary and other benefits, and the action is not motivated by
discrimination, bad faith or effected as a form of punishment or demotion without
36
sufficient cause.45 If the employer fails to overcome this burden of proof, the
employees transfer is tantamount to unlawful constructive dismissal. 46
Demotion involves a situation in which an employee is relegated to a
subordinate or less important position constituting a reduction to a lower grade or
rank, with a corresponding decrease in duties and responsibilities, and usually
accompanied by a decrease in salary.47 When there is a demotion in rank and/or
a diminution in pay, when a clear discrimination, insensibility or disdain by an
employer becomes unbearable to the employee, or when continued employment
is rendered impossible, unreasonable or unlikely, the transfer of an employee
may constitute constructive dismissal.48
An employee FORCED TO RESIGN is considered to have been
ILLEGALLY DISMISSED.49
DOUBT IN THE DISMISSAL OR TERMINATION OF EMPLOYMENT
RESOLVED IN FAVOR OF LABOR. When there is no showing of any clear,
valid, and legal cause for the termination of employment, the law
considers the matter a case of illegal dismissal. 50 Furthermore, Article 4
of the Labor Code expresses the basic principle that all doubts in the
interpretation and implementation of the Labor Code should be
interpreted in favor of the workingman. This principle has been
extended to cover doubts in the evidence presented by the employer
and the employee.51 Thus, the Supreme Court have held that if the
evidence presented by the employer and the employee are in
equipoise, the scales of justice must be tilted in favor of the latter. The
law looks tenderly on the laborers. Where the evidence may be
interpreted in two divergent ways, one prejudicial and the other
favorable to him, the balance must be tilted in his favor considering
the principle of social justice.
Unsubstantiated suspicions, accusations and conclusions of
employers do not provide legal justifications for dismissing
employees.52 Bare and unsubstantiated allegations do not constitute
substantial evidence and have no probative value.53
Consequently, having been illegally dismissed, the period of
complainants preventive suspension shall be included in computing
the time when compensation was withheld from him.54
The law, under Article 279 of the Labor Code, intends the award
of backwages and similar benefits to accumulate past the date of the
Labor Arbiters decision. But, if reinstatement is no longer possible, the
Supreme Court has consistently ruled that backwages should be
computed from the time of illegal dismissal until the date the decision
45
Mendoza v. Rural Bank of Lucban, 7 July 2004, 433 SCRA 756; Lanzaderas v. Amethyst Security and
General Services, Inc. 452 Phil. 621 (2003).
46
Merck Sharp and Dohme (Philippines) v. Robels, 25 November 2009, 605 SCRA 488, 500.
47
Norkis Trading Co., Inc. v. Gnilo, 11 February 2008, 544 SCRA 279, 291.
48
Benguet Electric Cooperative v. Fianza, 468 Phil. 980, 992 (2004).
49
Guatson Intl. Travel & Tours, Inc. v. NLRC, 230 SCRA 301.
50
Vinta Maritime Co. Inc. v. NLRC, 348 Phil. 714, Jan. 23, 1998
51
Penaflor v. Outdoor Clothing Manufacturing Corp., 21 January 2010, G.R. 177114, citing Fujitsu
Computer Products Corp. of the Philippines v. CA, 494 Phil. 697, 728 (2005).
52
See Mendoza v. NLRC, et al., G.R. No. 131405, 20 July 1999.
53
LNS Intl. Manpower Services v. Armando Padua, Jr., G.R. No. 179792, 5 March 2010.
54
Buhain v. CA and Swift Foods, Inc., 383 SCRA 602, 2 July 2002.
10
in this case becomes final and executory. 55 The same goes true with
the separation pay which should be computed from the time
complainant was employed until the finality of this Decision.56
EXCEPTIONS to computation up to finality of decision: (1) The
award of backwages should be computed from the time the employee
was illegally dismissed until the time when he was required by the
employer to report for work, but he refused to do so. (where
reinstatement is not the fault of the employer but of the employee); 57
(2) where the employee illegally dismissed is a project employee, the
backwages should be computed from the date of illegal dismissal until
the date of completion of the project.
The base figure in computing the award of backwages to an
illegally dismissed employee is the employees basic salary plus
regular allowances and benefits received at the time of dismissal,
unqualified by any wage and benefit increases granted in the interim. 58
Under existing jurisprudence, SEPARATION PAY is made an
alternative relief in lieu of reinstatement in certain circumstances, like:
(1) when reinstatement can no longer be effected in view of a long
period of time or because of the realities of the situation; (b)
reinstatement is inimical to the employers interest; (c) reinstatement
is no longer feasible; (d) reinstatement does not serve the best
interests of the parties involved; (e) the employer is prejudiced by the
workers continued employment; (f) facts that make execution unjust
or inequitable have supervened; or (g) strained relations between the
employer and employee.59
An employee who is illegally dismissed is entitled to: (1) either
reinstatement, if viable, or separation pay, if reinstatement is no longer
viable; and (2) backwages. These two reliefs are separate and distinct
from each other and are awarded conjunctively. 60
Dismissals have two facets: the legality of the act of dismissal
which constitutes substantive due process, and the legality of the
manner of dismissal which constitutes procedural due process. 61 Hence,
employers are barred from arbitrarily removing their workers whenever
and however they want. The law sets the valid grounds for termination
as well as the proper procedure to take when terminating the services
of an employee.
It should be emphasized at this point that the burden of proving the legality
of an employees dismissal lies with the employer. 62 The burden of proof rests on
the employer to establish that the dismissal is for a cause prescribed by law in
view of the security of tenure that employees enjoy under the Constitution and
the Labor Code. The employers evidence must clearly and convincingly show
55
Daniel P. Javellana, Jr. v. Albino Belen/Albino Belen v. Javellana Farms, Inc., et al., G.R. No.
181913/G.R. No. 182158, 5 March 2010; Petron Corp. v. NLRC, 505 SCRA 596, 616, 27 Oct. 2006.
56
Daniel P. Javellana, Jr. v. Albino Belen/Albino Belen v. Javellana Farms, Inc., et al., supra.
57
Bank of Lubao, Inc. v. Manabat, G.R. No. 188722, 1 February 2012.
58
BPI Employees Union Metro Manila and Zenaida Uy v. BPI; BPI v. BPI Employees Union Metro
Manila and Zenaida Uy, G.R. Nos. 178699 & 178735, 21 September 2011.
59
Escario v. NLRC (Third Division), G.R. No. 160302, 27 September 2010, 631 SCRA 261, 275.
60
Siemens v. Domingo, 560 SCRA 86, 100, 28 July 2008.
61
Tirazona v. CA, G.R. No. 169712, 14 March 2008.
62
Abel v. Philex Mining Corp. 594 SCRA 683, 692, 31 July 2009.
11
the facts on which the employees dismissal may be fairly made to rest. It must
be adequately proven by substantial evidence. Substantial evidence is such
relevant evidence which a reasonable mind might accept as adequate to support
a conclusion, even if other equally reasonable minds might opine otherwise. 63 It
is not the burden of the employee to prove his innocence but the law 64 reposed
that burden on the part of the employer. The employers case succeeds or fails
on the strength of its evidence and not on the weakness of that adduced by the
employee,65 in keeping with the principle that the scales of justice should be tilted
in favor of the latter in case of doubt in the evidence presented by them. 66 Pryce
Plaza failed to discharge this burden.
The free will of management to conduct its own business affairs to achieve
its purpose cannot be denied. 67 The only condition is that the exercise of
management prerogatives should not be done in bad faith 68 or with abuse of
discretion.69 Truly, while the employer has the inherent right to discipline,
including that of dismissing its employees, this prerogative is subject to the
regulation by the State in the exercise of its police power.70
The rule is that the act, misconduct or omission imputed to an employee
should merit only the CORRESPONDING PENALTY demanded by the
circumstances.71 It is cruel and unjust to impose the DRASTIC PENALTY OF
DISMISSAL if not commensurate to the gravity of the misdeed. The SUPREME
PENALTY OF DISMISSAL is the DEATH PENALTY to the working man. Thus,
extreme care should be exercised by employers in imposing dismissal to erring
employees. The penalty of dismissal should be availed of as a last resort. 72
It is a hornbook doctrine that infractions committed by an employee should
merit only the corresponding penalty demanded by the circumstances. The
penalty must be commensurate with the act, conduct or omission imputed to the
employee and must be imposed in connection with the disciplinary authority of
the employer.73 Thus, where a penalty less punitive would suffice, whatever
missteps may be committed by labor ought not to be visited with a consequence
so severe.74
The magnitude of the infraction committed by an employee must be
weighed and equated with the penalty prescribed and must be commensurate
thereto, in view of the gravity of the penalty of dismissal or termination from the
service. The employer should bear in mind that in termination dispute, what is at
stake is not simply the employees job or position but his very livelihood. 75
Indeed, the immortal words of former Chief Justice Enrique Fernando ring
true then as it they do now: where a penalty less punitive would suffice,
63
12
NLRC.78
The right of an employer to dismiss an employee differs from and should
not be confused with the manner in which such right is exercised. 79 Under
Article 277 (b) of the Labor Code, the employer must send the employee who is
about to be terminated, a written notice specifying the particular acts or
omissions for which the employer seeks his termination, and must give the
employee ample opportunity to be heard and to defend himself before
serving a second written notice informing the employee of the employers
decision to terminate him. Moreover, the law casts the burden on the employer to
prove that the employee has been served two (2) written notices and given
ample opportunity to be heard before he is dismissed.
Notice of the charges, ample opportunity to be heard, and notice of
termination.
As to the first notice requirement, this Office is guided by the
jurisprudence in Maquiling v. Philippine Tuberculosis Society, Inc. 80
where the Supreme Court held that the first notice must inform the employee
outright that an investigation will be conducted on the charges specified in such
notice, which if proven, will result in the employees dismissal. Said the Supreme
Court in explaining the rationale for this rule:
This notice will afford the employee an opportunity to
avail all defenses and exhaust all remedies to refute the
allegations hurled against him for what is at stake is his very
life and limb and his employment. Otherwise, the employee may
just disregard the notice as warning without any disastrous
consequence to be anticipated. Absent such statement, the first
notice falls short of the requirement of due process. Ones work is
everything, thus, it is too exacting to impose this strict
requirement on the part of the employer before the dismissal
process be validly effected. This is in consonance with the rule
that all doubts in the implementation and interpretation of the
provisions of the Labor Code, including its implementing rules
76
Almira v. B.F. Goodrich Philippines, Inc., 58 SCRA 120, 131, 25 July 1974, cited in the case of Julito
Sagales v. Rustans Commercial Corp., G.R. No. 166554, 27 Nov. 2008.
77
Solidbank Corporation v. NLTC, G.R. No. 165951, 30 March 2010
78
G.R. No. 165951, 30 March 2010, citing Philippine Commercial International Bank v. Abad, 492 Phil.
657, 663-664 (2005).
79
Globe Mackay Cable and Radio Corp. v. CA, 176 SCRA 778 [1989]
80
450 SCRA 465
13
Mamac83 as a period of at least five (5) calendar days from receipt of the
notice.
As held in Felix Perez, et al. v. PTTC, et al.,
84
a formal hearing or
conference becomes mandatory when requested by the employee in writing or
substantial evidentiary disputes exist or a company rule or practice requires
it, or when similar circumstances justify it.
In Felix Perez, et al. v. PTTC, et al., the following GUIDING
PRINCIPLES in connection with the HEARING REQUIREMENT in DISMISSAL
CASES:
1. AMPLE OPPORTUNITY means ANY MEANINGFUL OPPORTUNITY
(verbal or written) given to the employee to answer the charges
against him and submit evidence in support of his defense, whether in
a hearing, conference or some other fair, just and reasonable way;
2. a FORMAL HEARING or CONFERENCE becomes MANDATORY
ONLY (a) when requested by the employee in writing or (b) substantial
evidentiary disputes exist or (c) a company rule or practice requires it,
or (d) when similar circumstances justify it;
3. the AMPLE OPPORTUNITY TO BE HEARD STANDARD in the Labor
Code prevails over the hearing or conference requirements in the
implementing rules and regulations.
While the TWIN REQUIREMENTS of NOTICE AND HEARING are
INDISPENSABLE for a VALID DISMISSAL, failure to observe these requirements
does not necessarily operate to invalidate or nullify the DISMISSAL for a JUST
AND VALID CAUSE. A distinction should be made between the LEGALITY of the
ACT of DISMISSAL and the LEGALITY of the MANNER by which the act of
dismissal was performed. The first refers to the SUBSTANTIVE requirement of
VALID CAUSE, the second involves the observance of the PROCEDURAL
requirement of DUE PROCESS. It is now settled that where the dismissal of an
employee is proven to be for a just and valid cause, but he is not accorded his
right to procedural due process, the dismissal shall be upheld, but the employer
81
14
15
(First Division, thru Justice Teresita J. Leonardo-De Castro) G.R. No. 165381, 9 February 2012. Note
that this case involved valid dismissal due to authorized cause of redundancy, but without observance of
procedural due process.
90
442 SCRA 573, 17 November 2004.
91
252 Phil. 73 (1989).
92
(Second Division, thru Justice Jose Portugal Perez) G.R. No. 181974, 1 February 2012. This case
involved valid dismissal for just cause (serious misconduct/theft), but without observance of procedural due
process.
93
Maria Lourdes C. De Jesus v. Hon. Raul T. Aquino, et al. (First Division, Justice Lucas P. Bersamin),
G.R. No. 164662, 18 February 2013. This involved valid dismissal due to loss of trust and confidence but
without observance of procedural due process.
94
Serrano v. NLRC, 387 Phil. 345 (2000)
95
G.R. No. 185829, 25 April 2012.
16
San Miguel v. Lao, 384 SCRA 504, 11 July 2002; Central Phils. Bandag Retreaders,
Inc. v. Prudencio J. Diasnes, G.R. No. 163607, 14 Jul 2008
97
537 SCRA 171, 222-223 [2007]
98
G.R. No. 163607, 14 July 2008
99
Reno Foods, Inc. and/or Vicente Khu v. Nagkakaisang Lakas ng Manggagawa (NLM)
- KATIPUNAN on behalf of its member, Nenita A. Capor, G.R. No. 164016, 15 March
2010, citing San Miguel Corp. v. NLRC, 325 Phil. 940, 952 (1996).
100
Jerry Mapili v. Philippine Rabbit Bus Lines, Inc./Natividad Nisce, G.R. No. 172506, 27
July 2011.
101
Challenge Socks Corp. v. CA, et al., G. R. No. 165268, 8 Nov. 2005
102
344 Phil. 522, 531 (1997).
103
Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, 395 SCRA 720, 22
January 2003.
104
Flores v. NLRC, et al., G.R. No. 96969, 2 March 1193.
96
17
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