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G.R. No. 122917 MARITES BERNARDO et al. vs.

NLRC
THIRD DIVISION
PANGANIBAN, J.
Daylo, Jerome Dela Cruz July 12, 1999 Series: 7FACTS:
The 43 petitioners are deaf-mutes who were hired on various periods from 1988
to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and
Counters through a uniformly worded agreement called "Employment Contract
for Handicapped Workers". The said agreement provides for the manner of how
they are hired and be rehired, the amount of their wages (P118.00 per day),
period of employment (5 days a week, 8 hours a day, training for 1 month, 6
months period) and the manner and methods of how their works are to be done
(Sort out bills according to color; Count each denomination per hundred, either
manually or with the aid of a counting machine; Wrap and label bills per hundred;
Put the wrapped bills into bundles; and Submit bundled bills to the bank teller for
verification.) Many of their employments were renewed every six months.
Claiming that they should be considered as regular employees they filed a
complaint for illegal dismissal and recovery of various benefits.
Labor arbiters decision: complaint is dismissed for lack of merit (the
terms of the contract shall be the law between the
parties.). Affirmed by the NLRC (Art. 280 is not controlling herein but Art. 80) (the
Magna Carta for Disabled Persons was not applicable, "considering the
prevailing circumstances of the case.") and denied motion for reconsideration.
ISSUES:
Does petitioners considered as regular employees?
LAW:
Art.78 & 80 of the Labor Code and the Magna Carta for Disabled Persons.
RULING: Yes.
The petition is meritorious. However, only the employees, who worked for more
than six months and whose contracts were renewed are deemed regular. Hence,
their dismissal from employment was illegal. The stipulations in the employment
contracts indubitably conform with Article 80, however, the application of Article
280 of the Labor Code is justified because of the advent of RA No. 7277 (the
Magna Carta for Disabled Persons) which mandates that a qualified disabled
employee should be given the same terms and conditions of employment as a
qualified able-bodied person (compensation, privileges, benefits, fringe benefits,
incentives or allowances) 27 of the petitioners are considered regular employees
by provision of law regardless of any agreement between the parties as
embodied in article280 in relation to article 281 of the Labor Code. The test is
whether the former is usually necessary or desirable in the usual business or
trade of the employer. Hence, the employment is considered regular, but only
with respect to such activity, and while such activity exist. Without a doubt, the
task of counting and sorting bills is necessary and desirable to the business of
respondent bank. When the bank renewed the contract after the lapse of the sixmonth probationary period, the employees thereby became regular employees.
No employer is allowed to determine indefinitely the fitness of its employees.
Those who have worked for only 6 months and employments were not renewed
are not considered regular employees.
OPINION:
The Court correctly finds that 27 of the handicapped workers are regular
employees. The test is whether the activity is usually necessary or desirable in
the usual business or trade of the employer. The employment is considered
regular, but only with respect to such activity, and while such activity exist.
Without a doubt, the task of counting and sorting bills is necessary and desirable
to the business of respondent bank. As regular employees, the twenty-seven
petitioners are entitled to security of tenure; that is, their services may be
terminated only for a just or authorized cause.