LABOR 2 DISINI NOTES (PART 1: TERMINATION OF EMPLOYMENT)
MA. ANGELA AGUINALDO ATENEO LAW 2010
which are usually necessary or desirable in the usual business or tradeof the employer, except where the employment has been fixed for aspecific project or undertaking the completion or termination of whichhas been determined at the time of the engagement of the employee orwhere the work or service to be performed is seasonal in nature andthe employment is for the duration of the season.An employment shall be deemed to be casual if it is not covered by thepreceding paragraph: Provided, That any employee who has renderedat least one year of service, whether such service is continuous orbroken, shall be considered a regular employee with respect to theactivity in which he is employed and his employment shall continuewhile such activity exists.
CLASSIFICATION OF EMPLOYMENT STATUS
This article is
not a yardstick
for determining the existence ofthe an employment relationship because it
regular and casual employees, for purposes of determining theright of an employee to certain benefits, to join or form aunion, or to security of tenure (Phil. Global case, June 2005)
Any agreement may provide that one party shall renderservices for and in behalf of another for a considerationwithout being hired as an employee. This is true in the case ofindependent contractorship as well as in agency agreements.
REGULAR EMPLOYMENT, TEST OF DETERMINATION
An employment is deemed regular where the employee either:1.
Has been engaged to perform which are usually necessary ordesirable in the usual business or trade of an employera.
Opulencia Ice Plant and Storage v. NLRC, 46 SCAD 821:
Determination of regular or casual employment is notaffected by the fact of the employee’s regularpresence in the place of work is not required, themore significant consideration being that the work ofthe employee is usually necessary or desirable in thebusiness of the employer.b.
Lagrama, 387 SCRA 393:
the primary standardor test for determining regular employment is thereasonable connection between the particular activityperformed by the employee in relation to the usualtrade or business of the employer.c.
RJL Martinez v.
NLRC, 127 SCRA 445
: it can be inferredfrom the length of time that an employee has beenmade to do the job if the activities performed by himis usually necessary or desirable in the usual businessor trade of the employer.2.
Has rendered at least one year of service, whether such serviceis continuous or broken, with respect to the activity in whichhe is employed.a.
The employment is also considered regular but onlywith respect to such activity and while such activityexists.
Caparoso v. CA, 15 February 2007
: even if an employeeis engaged to perform activities that are necessary ordesirable in the usual trade or business of theemployer, it does not preclude the fixing ofemployment for a definite period.
Regular employment automatically attaches to theemployee upon the cessation of his employment ascasual employment
Where an employee is engaged to work on a specific project orundertaking, the completion of which has been determined atthe time of the engagement of the employee
The decisive determinant should not be the activities that theemployees is called upon to perform, but the day certainagreed upon by the parties for the commencement andtermination of their employment relationship
Day certain: that which must necessarily come, although itmay not known when
While the SC upheld the validity of this form of employment, itdid so with a
that where the circumstances wereapparent that the period has been imposed to frustrate theacquisition of regular status, the same should be struck downas contrary to law, morals, customs, public order, and publicpolicy.