Article 295

Regular Casual
Project/ Seasonal
-Nature and - Becomes regular if
Activity of the - There must be employed for one
business awareness that you are year.
a project employee - The proviso do not
_____vs NLRC apply to Regular,
continuesly engage to Project and Seasonal.
a vita and necessary
Fixed period acitivity
- Only if engaged in a
-Brent vs Zamora single season. If
engage in more than
Illegal if used to
one season, then
violate security of
considered as regular
tenure
seasonal employee
1. No moral Mercado case
dominance
2. __________
Article 296

Probationary Employee - up to 6
months

2 ways to terminate How to determine 6 months

i. just and authorized cause Arcira case vs Mitsubishi case

ii. not qualified with the standards
Mariwasa Doctrine extended
observation period.
- Employee should be informed
of the Standard
- Arcira citing _____ case day
of appointment to the same
calendar day of 6 months
following the appointment.
(latest jurisprudence)
- Mitsubishi (30 days x 6)

Aleli vs _____

2 ways to regularize

1. Work for more than 6 months

2. Not informed of the standards
 - Passage of time is a badge of regular employment
- Project employee doesnt become regular by the passage of time.
- Hacienda Binoy v Mercado case
- Article 294 applies
- Article 292-B Standard of due process
- Serano vs NLRC
o Statutory not constitutional will apply
o Constitutional due process is
a limitation to the Government
Adversarial
Employer cannot be impartial of its own cause
- Abot Laboratory nominal damages for violation of company policy
- No need for conference except if it is provided in the company Rules
- PTNT Doctrine
- Perez case
o What is ample opportunity
o What due process will apply

Article 292. Miscellaneous Provisions. "(b) Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a just or authorized cause and without
prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the
worker whose employment is sought to be terminated a written notice containing a statement of the
causes for termination and shall afford the latter ample opportunity to be heard and to defend himself
with the assistance of his representative if he so desires in accordance with company rules and regulations
promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken
by the employer shall be without prejudice to the right of the worker to contest the validity or legality of
his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.
The burden of proving that the termination was for a valid or authorized cause shall rest on the employer.
The Secretary of Labor and Employment may suspend the effects of the termination pending resolution
of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor
and Employment before whom such dispute is pending that the termination may cause a serious labor
dispute or is in implementation of a mass lay-off.

Art. 294. Security of tenure. In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this Title. 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.

Art. 295. Regular and casual employment. The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to
be 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, except where the 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 or where the work or service to be performed is seasonal in
nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided,
that 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. 296. Probationary employment. Probationary employment shall not exceed six (6) months from the
date the employee started working, unless it is covered by an apprenticeship agreement stipulating a
longer period. The services of an employee who has been engaged on a probationary basis may be
terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable
standards made known by the employer to the employee at the time of his engagement. An employee
who is allowed to work after a probationary period shall be considered a regular employee.

Mariwasa vs Leogardo

For aught that appears of record, the extension of Dequila's probation was ex gratia, an act of liberality
on the part of his employer affording him a second chance to make good after having initially failed to
prove his worth as an employee. Such an act cannot now unjustly be turned against said employer's
account to compel it to keep on its payroll one who could not perform according to its work standards.
The law, surely, was never meant to produce such an inequitable result.

By voluntarily agreeing to an extension of the probationary period, Dequila in effect waived any benefit
attaching to the completion of said period if he still failed to make the grade during the period of
extension. The Court finds nothing in the law which by any fair interpretation prohibits such a waiver. And
no public policy protecting the employee and the security of his tenure is served by prescribing voluntary
agreements which, by reasonably extending the period of probation, actually improve and further a
probationary employee's prospects of demonstrating his fitness for regular employment.

Brent School vs Zamora

Fixed period employment is said to be not in violation of the right to security of tenure if:

1. It was agreed upon knowingly and voluntarily 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. where 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 over the
latter.

Serrano vs NLRC

There are three reasons why, on the other hand, violation by the employer of the notice
requirement cannot be considered a denial of due process resulting in the nullity of the employees
dismissal or layoff.
 1. The first is that the Due Process Clause of the Constitution is a limitation on governmental
powers. It does not apply to the exercise of private power, such as the termination of employment
under the Labor Code. This is plain from the text of Art. III, 1 of the Constitution, viz.: "No person
shall be deprived of life, liberty, or property without due process of law. . . ." The reason is simple:
Only the State has authority to take the life, liberty, or property of the individual. The purpose of
the Due Process Clause is to ensure that the exercise of this power is consistent with what are
considered civilized methods.
2. The second reason is that notice and hearing are required under the Due Process Clause before
the power of organized society are brought to bear upon the individual. This is obviously not the
case of termination of employment under Art. 283. Here the employee is not faced with an aspect
of the adversary system. The purpose for requiring a 30-day written notice before an employee is
laid off is not to afford him an opportunity to be heard on any charge against him, for there is
none. The purpose rather is to give him time to prepare for the eventual loss of his job and the
DOLE an opportunity to determine whether economic causes do exist justifying the termination
of his employment.
3. The third reason why the notice requirement under Art. 283 can not be considered a requirement
of the Due Process Clause is that the employer cannot really be expected to be entirely an
impartial judge of his own cause. This is also the case in termination of employment for a just
cause under Art. 282 (i.e., serious misconduct or willful disobedience by the employee of the
lawful orders of the employer, gross and habitual neglect of duties, fraud or willful breach of trust
of the employer, commission of crime against the employer or the latters immediate family or
duly authorized representatives, or other analogous cases).

Perez vs. Philippine Telegraph and Telephone Company

Due Process in the Labor code vs Implementing Rules

We note a marked difference in the standards of due process to be followed as prescribed in the Labor
Code and its implementing rules. The Labor Code provides that an employer must provide the employee
ample opportunity to be heard and to defend himself with the assistance of his representative if he so
desires.

The omnibus rules implementing the Labor Code, on the other hand, require a hearing and conference
during which the employee concerned is given the opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him.

In case of conflict, the law prevails over the administrative regulations implementing it. The authority to
promulgate implementing rules proceeds from the law itself. To be valid, a rule or regulation must
conform to and be consistent with the provisions of the enabling statute. As such, it cannot amend the
law either by abridging or expanding its scope.

Meaning of Ample Opportunity

(a) ample opportunity to be heard 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.
(b) a formal hearing or conference becomes mandatory only 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.

(c) the ample opportunity to be heard standard in the Labor Code prevails over the hearing or
conference requirement in the implementing rules and regulations.

Alcira vs NLRC

We reiterate our ruling in CALS Poultry Supply: Our computation of the 6-month probationary period is
reckoned from the date of appointment up to the same calendar date of the 6th month following.