Alcatel vs delos Reyes

The principal test for determining whether a particular employee is a project

employee or a regular employee is whether the project employee was assigned to
carry out a specific project or undertaking, the duration and scope of which were
specified at the time the employee is engaged for the project.[18] Project may refer
to a particular job or undertaking that is within the regular or usual business of
the employer, but which is distinct and separate and identifiable as such from the
undertakings of the company. Such job or undertaking begins and ends at
determined or determinable times.

A project employee or a member of a work pool may acquire the status of

a regular employee when the following concur:

1) There is a continuous rehiring of project employees even after the

cessation of a project; and

2) The tasks performed by the alleged project employee are vital,

necessary and indispensable to the usual business or trade of the employ

Belle corp vs Macasusi

Under Article 282 (b) of the Labor Code, negligence must be both gross and
habitual to justify the dismissal of an employee. As borne out by the records,
there was lack of substantial evidence to prove that respondent was grossly
negligent. Petitioner failed to submit evidence to disprove respondents allegation
that the equipment was replaced in April 1999 since it was already old and not
functioning properly. Neither did it show that the equipment was operated solely
by respondent so as to attribute the equipments failure to him. Thus, the
mechanical failure could have been brought about by factors such as ordinary
wear and tear and use by other grader operators. Furthermore, there was no
evidence that respondent operated the equipment without even the slightest
care. While respondent heard a loud cracking sound, there was doubt when he
heard the succeeding cracking sounds. These may have come immediately after
the first such that there was not enough time to stop the equipment immediately.
In any event, respondent stopped the equipment after the succeeding sounds.

POSEIDON VS NLRC

. The test to determine whether employment is regular or not is the reasonable connection between
the particular activity performed by the employee in relation to the usual business or trade of the
employer. And, if the employee has been performing the job for at least one year, even if the
performance is not continuous or merely intermittent, the law deems the repeated and continuing
need for its performance as sufficient evidence of the necessity, if not indispensability of that activity
to the business. Ostensibly, in the case at bar, at different times, private respondent occupied the
position of Chief Mate, Boat Captain, and Radio Operator. The act of hiring and re-hiring in various
capacities is a mere gambit employed by petitioner to thwart the tenurial protection of private
respondent. Such pattern of re-hiring and the recurring need for his services are testament to the
necessity and indispensability of such services to petitioners’ business or trade.

Even if petitioners’ contention that its industry is seasonal in nature, once a project or work pool
employee has been: (1) continuously, as opposed to intermittently, re-hired by the same employer
for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to
the usual business or trade of the employer, then the employee must be deemed a regular
employee.

HACIENDA VS NAT FED SUGARCANE

The primary standard of determining regular employment 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 trade or
business 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.

Marisawa vs Leonardo

The SC in its decision in Buiser vs. Leogardo, Jr. (1984) said that “Generally, the probationary period of employment is
limited to six (6) months. The exception to this general rule is when the parties to an employment contract may
agree otherwise, such as when the same is established by company policy or when the same is required by the
nature of work to be performed by the employee. In the latter case, there is recognition of the exercise of
managerial prerogatives in requiring a longer period of probationary employment, such as in the present case where
the probationary period was set for eighteen (18) months, i.e. from May, 1980 to October, 1981 inclusive, especially
where the employee must learn a particular kind of work such as selling, or when the job requires certain
qualifications, skills experience or training.”
In this case, the extension given to Dequila could not have been pre-arranged to avoid the legal consequences of a
probationary period satisfactorily completed. In fact, it 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.
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. By reasonably
extending the period of probation, the questioned agreement actually improved the probationary employee’s
prospects of demonstrating his fitness for regular employment.

G.R. No. 181490 : April 23, 2014

MIRANT (PHILIPPINES) CORPORATION, ET. AL., Petitioners, v. JOSELITO A. CARO, Respondent.

VILLARAMA, JR., J.:

FACTS:

Petitioner corporation is organized and operating under and by virtue of the laws of the Republic of the
Philippines. It is a holding company that owns shares in project companies such as Mirant Sual
Corporation and Mirant Pagbilao Corporation (Mirant Pagbilao) which operate and maintain power
stations located in Sual, Pangasinan and Pagbilao, Quezon, respectively. Petitioner corporation and its
related companies maintain around 2,000 employees detailed in its main office and other sites. Petitioner
corporation had changed its name to CEPA Operations in 1996 and to Southern Company in 2001. In
2002, Southern Company was sold to petitioner Mirant whose corporate parent is an Atlanta-based power
producer in the United States of America. Petitioner corporation is now known as Team Energy
Corporation.

Petitioner Edgardo A. Bautista (Bautista) was the President of petitioner corporation when respondent
was terminated from employment.

Respondent was hired by Mirant Pagbilao on January 3, 1994 as its Logistics Officer. In 2002, when
Southern Company was sold to Mirant, respondent was already a Supervisor of the Logistics and
Purchasing Department of petitioner. At the time of the severance of his employment, respondent was the
Procurement Supervisor of Mirant Pagbilao assigned at petitioner corporations corporate office. As
Procurement Supervisor, his main task was to serve as the link between the Materials Management
Department of petitioner corporation and its staff, and the suppliers and service contractors in order to
ensure that procurement is carried out in conformity with set policies, procedures and practices. In
addition, respondent was put in charge of ensuring the timely, economical, safe and expeditious delivery
of materials at the right quality and quantity to petitioner corporations plant. Respondent was also
responsible for guiding and overseeing the welfare and training needs of the staff of the Materials
Management Department. Due to the nature of respondents functions, petitioner corporation considers
his position as confidential.

Respondent filed a complaint for illegal dismissal and money claims for 13th and 14th month pay,
bonuses and other benefits, as well as the payment of moral and exemplary damages and attorneys fees.
It is the contention of respondent that he was illegally dismissed by petitioner corporation due to the
latters non-compliance with the twin requirements of notice and hearing. He asserts that while there was
a notice charging him of unjustified refusal to submit to random drug testing, there was no notice of
hearing and petitioner corporations investigation was not the equivalent of the hearing required under the
law which should have accorded respondent the opportunity to be heard.

In a decision dated August 31, 2005, Labor Arbiter Aliman D. Mangandog found respondent to have been
illegally dismissed. The Labor Arbiter also found that the quitclaim purportedly executed by respondent
was not a bona fide quitclaim which effectively discharged petitioners of all the claims of respondent in
the case at bar. If at all, the Labor Arbiter considered the execution of the quitclaim as a clear attempt on
the part of petitioners to mislead its office into thinking that respondent no longer had any cause of action
against petitioner corporation.

On appeal to the NLRC, petitioners alleged that the decision of the Labor Arbiter was rendered with grave
abuse of discretion for being contrary to law, rules and established jurisprudence, and contained serious
errors in the findings of facts which, if not corrected, would cause grave and irreparable damage or injury
to petitioners. The NLRC, giving weight and emphasis to the inconsistencies in respondents explanations,
considered his omission as unjustified refusal in violation of petitioner corporations drug policy.
Respondent filed a motion for reconsideration, while petitioners filed a motion for partial reconsideration
of the NLRC decision. In a Resolution dated June 30, 2006, the NLRC denied both motions.

SSUES:

1) Whether the petition for certiorari filed by respondent with the CA should have been summarily
dismissed as it lacked the requisite verification and certification against forum shopping under Sections 4
and 5, Rule 7 of the Rules;

2) Whether respondent was illegally dismissed

HELD:
STATUTORY CONSTRUCTION
This jurisdiction has adopted in the field of labor protection a liberal stance towards the construction of the
rules of procedure in order to serve the ends of substantial justice. This liberal construction in labor law
emanates from the mandate that the workingmans welfare should be the primordial and paramount
consideration. Thus, if the rules of procedure will stunt courts from fulfilling this mandate, the rules of
procedure shall be relaxed if the circumstances of a case warrant the exercise of such liberality.

If we sustain the argument of petitioners in the case at bar that the petition for certiorari should have been
dismissed outright by the CA, the NLRC decision would have reached finality and respondent would have
lost his remedy and denied his right to be protected against illegal dismissal under the Labor Code, as
amended.

It is beyond debate that petitioner corporations enforcement of its Anti-Drugs Policy is an exercise of its
management prerogative. It is also a conceded fact that respondent failed to take the random drug test as
scheduled, and under the said company policy, such failure metes the penalty of termination for the first
offense. A plain, simple and literal application of the said policy to the omission of respondent would have
warranted his outright dismissal from employment if the facts were that simple in the case at bar. Beyond
debate the facts of this case are not and this disables the Court from permitting a straight application of
an otherwise prima facie straightforward rule if the ends of substantial justice have to be served.

It is the crux of petitioners argument that respondents omission amounted to unjust refusal because he
could not sufficiently support with convincing proof and evidence his defenses for failing to take the
random drug test. For petitioners, the inconsistencies in respondents explanations likewise operated to
cast doubt on his real reasons and motives for not submitting to the random drug test on schedule. In
recognition of these inconsistencies and the lack of convincing proof from the point of view of petitioners,
the NLRC reversed the decision of the Labor Arbiter. The CA found the ruling of the Labor Arbiter to be
more in accord with the facts, law and existing jurisprudence.

LABOR LAW

We agree with the disposition of the appellate court that there was illegal dismissal in the case at bar.

While the adoption and enforcement by petitioner corporation of its Anti-Drugs Policy is recognized as a
valid exercise of its management prerogative as an employer, such exercise is not absolute and
unbridled. Managerial prerogatives are subject to limitations provided by law, collective bargaining
agreements, and the general principles of fair play and justice. In the exercise of its management
prerogative, an employer must therefore ensure that the policies, rules and regulations on work-related
activities of the employees must always be fair and reasonable and the corresponding penalties, when
prescribed, commensurate to the offense involved and to the degree of the infraction. The Anti-Drugs
Policy of Mirant fell short of these requirements.

Petitioner corporations subject Anti-Drugs Policy fell short of being fair and reasonable.

First. The policy was not clear on what constitutes unjustified refusal when the subject drug policy
prescribed that an employees unjustified refusal to submit to a random drug test shall be punishable by
the penalty of termination for the first offense. To be sure, the term unjustified refusal could not possibly
cover all forms of refusal as the employees resistance, to be punishable by termination, must be
unjustified. To the mind of the Court, it is on this area where petitioner corporation had fallen short of
making it clear to its employees as well as to management as to what types of acts would fall under the
purview of unjustified refusal. Even petitioner corporations own Investigating Panel recognized this
ambiguity.
Marcial aparece vs Morales

Book VI, Rule I, Section 2(d), of the Omnibus Rules Implementing the
Labor Code provides the procedure for terminating an employee, viz:
(d) In all cases of termination of employment, the following standards
of due process shall be substantially observed:
For termination of employment based on just causes as defined in
Article 282 of the Labor Code:
(i) A written notice served on the employee specifying the ground or
grounds for termination, and giving said employee reasonable
opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned,
with the assistance of counsel if he so desires is given opportunity
to respond to the charge, present his evidence, or rebut the
evidence presented against him.
(iii) A written notice of termination served on the employee,
indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination.

In dismissing an employee, the employer has the burden of proving that the
former has been served two notices: (1) one to apprise him of the particular acts or
omissions for which his dismissal is sought, and (2) the other to inform him of his
employers decision to dismiss him.[17] The first notice must state that dismissal is
sought for the act or omission charged against the employee. Otherwise, the notice
cannot be considered sufficient compliance with the rules.[18]

Furthermore, the first notice must inform the employee outright that an
investigation will be conducted on the charges particularized therein which, if
proven, will result to his dismissal. Such notice must not only contain a plain
statement of the charges of malfeasance or misfeasance but must categorically state
the effect on his employment if the charges are proven to be true. [19] Obviously, the
purpose of the first notice is to afford the employee the opportunity to defend
himself against the charges hurled against him.

Manila Pen vs Alipio

Article 280 of the Labor Code provides:

ART. 280. 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 services 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. (Emphasis supplied.)

Thus, an employment is deemed regular when the activities performed by

the employee are usually necessary or desirable in the usual business of the
employer. However, any employee who has rendered at least one year of service,
even though intermittent, is deemed regular with respect to the activity performed
and while such activity actually exists.[11]

In this case, records show that Alipios services were engaged by the hotel
intermittently from 1993 up to 1998. Her services as a reliever nurse were
undoubtedly necessary and desirable in the hotels business of providing
comfortable accommodation to its guests. In any case, since she had rendered more
than one year of intermittent service as a reliever nurse at the hotel, she had
become a regular employee as early as December 12, 1994. Lastly, per the hotels
own Certification dated April 22, 1997, she was already a regular staff nurse until
her dismissal.
 Being a regular employee, Alipio enjoys security of tenure. Her services
may be terminated only upon compliance with the substantive and procedural
requisites for a valid dismissal: (1) the dismissal must be for any of the causes
provided in Article 282[12] of the Labor Code; and (2) the employee must be given
an opportunity to be heard and to defend himself.[13]

School of holy spirit vs Taguiam

Under Article 282[15] of the Labor Code, gross and habitual neglect of duties is a
valid ground for an employer to terminate an employee. Gross negligence implies
a want or absence of or a failure to exercise slight care or diligence, or the entire
absence of care. It evinces a thoughtless disregard of consequences without
exerting any effort to avoid them.[16] Habitual neglect implies repeated failure to
perform ones duties for a period of time, depending upon the circumstances.[

As a result of gross negligence in the present case, petitioners lost its trust
and confidence in respondent. Loss of trust and confidence to be a valid ground for
dismissal must be based on a willful breach of trust and founded on clearly
established facts. A breach is willful if it is done intentionally, knowingly and
purposely, without justifiable excuse, as distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently.[23] Otherwise stated, it must rest on
substantial grounds and not on the employers arbitrariness, whims, caprices or
suspicion; otherwise, the employee would eternally remain at the mercy of the
employer. It should be genuine and not simulated; nor should it appear as a mere
afterthought to justify earlier action taken in bad faith or a subterfuge for causes
which are improper, illegal or unjustified. It has never been intended to afford an
occasion for abuse because of its subjective nature. There must, therefore, be an
actual breach of duty committed by the employee which must be established by
substantial evidence.[24]

As a teacher who stands in loco parentis to her pupils, respondent should

have made sure that the children were protected from all harm while in her
company.[25] Respondent should have known that leaving the pupils in the
swimming pool area all by themselves may result in an accident. A simple
reminder not to go to the deepest part of the pool [26] was insufficient to cast away
all the serious dangers that the situation presented to the children, especially when
respondent knew that Chiara Mae cannot swim.[27] Dismally, respondent created an
unsafe situation which exposed the lives of all the pupils concerned to real
danger. This is a clear violation not only of the trust and confidence reposed on her
by the parents of the pupils but of the school itself.