16. Biboso et al, v. Victorias Milling &OP / GR No. L44360 / 3.31.

77 / Groups of
Employees - Probationary Employees 282 / Fernando, J p:

F: Ps assails the decision of Jacobe (OP Pres’l EA), declaring that as Probationary
Employees, they are not covered by the mantle of labor protection as guaranteed by the
Constitution. Ps are teachers in PRs school, who serves in a Year-to-Year
basis, signing new contracts each year, stipulated as ‘temporary as and when required
until…’ making Ps as probationary employees. Ps argues that they were subjected by
PR to unfair labor practice. PR on the other hand argues otherwise. NLRC favoured Ps,
OP PRs, hence this.
The Labor Code does not set the maximum probationary period at six months.
Under the Labor Code, the probationary period is the period required to learn a skill,
trade, occupation or profession. In other words, the Labor Code recognizes the
policy of the Bureau of Private Schools settling the maximum probationary period
for teachers at three years.'

I: WON the OP was correct.

R: The petition, as noted at the outset, cannot prosper. What is decisive is that
petitioners were well aware all the time that their tenure was for a limited
duration. Upon its termination, both parties to the employment relationship were free to
renew it or to let it lapse. It was the decision of private respondent that it should cease.
There is no question here, as noted in the assailed order of Presidential Executive
Assistant Clave, that petitioners did not enjoy a permanent status. During such period
they could remain in their positions and any circumvention of their rights, in
accordance with the statutory scheme, subject to inquiry and thereafter correction
by the Department of Labor. Thus there was the safeguard as to the duration of
their employment being respected. To that extent, their tenure was secure. The
moment, however, the period expired in accordance with contracts freely entered
into, they could no longer invoke the constitutional protection.
It is difficult to believe the submission of individual petitioners that they were terminated
from employment because they joined petitioner union VICSEA. This is indicated by the
fact that petitioners became members of petitioner union VICSEA only in January, 1973,
while being observed and monitored by PR. That the purpose of individual petitioners in
joining the union is to avert their forthcoming removal from the faculty roster was
impliedly admitted by one of the individual petitioners in her testimony: 'Q - But
according to you, precisely, the reason why you joined the union was because it would
be very hard for the school to terminate you if you are already a member of the union,
did you not say that? A — I said it!"

17. Int. Catholic Migration Commission (ICMC) v. NLRC & Galang / GR No. 72222 /
1.30.89 / Groups of Employees - Probationary Employees 282 / Fernan, J p:
F: ICMC, non-profit refugee org, hired PR as a Probationary cultural orientation teacher.
3 months in the ProB, he was advised orally and in writing that she failed
here evaluation, therefore she is being terminated, thereafter she acted strangely to the
point that she was hospitalized – P took care of her and was given her benefits. On
8.22.83 she sued P for illegal dismissal, unfair labor practice, unpaid wages and
reinstatement. P Countered, that she couldn’t claim such because she was terminated
for failure to qualify as a regular employee as prescribed by her employer. LA dismissed
the complaint but ordered payment of her wages for the unconsumed 3 months, NLRC
affirmed on majority decision.

I: WON PR is entitled to her salary for the unexpired portion of her six month.

R: Not entitled. We find unmeritorious, therefore, public respondent's argument that the
security of tenure of probationary employees within the period of their probation, as in
the case of herein private respondent, justified the award of salary for the unexpired
portion of her probationary employment. The termination of private respondent
predicated on a just cause negates the application in this case of the pronouncement in
the case of Biboso v. Victorias Milling Co., Inc., 12 on the right of security of tenure of
probationary employees.
Records show that private respondent was found by petitioner to be deficient in
classroom management, teacher-student relationship and teaching techniques. Failure
to qualify as a regular employee in accordance with the reasonable standards of the
employer is a just cause for terminating a probationary employee specifically
recognized under Article 282 (now Article 281) of the Labor Code
The legal basis of public respondent is erroneous. A probationary employee, as
understood under Article 282 (now Article 281) of the Labor Code, is one who is on
trial by an employer during which the employer determines whether or not he is
qualified for permanent employment. A probationary appointment is made to afford
the employer an opportunity to observe the fitness of a probationer while at work,
and to ascertain whether he will become a proper and efficient employee. The word
"probationary", as used to describe the period of employment, implies the purpose
of the term or period, but not its length.
"The right of a laborer to sell his labor to such persons as he may choose is, in its
essence, the same as the right of an employer to purchase labor from any person
whom it chooses. The employer and the employee have thus an equality of right
guaranteed by the Constitution. If the employer can compel the employee to work
against the latter's will, this is servitude. If the employee can compel the employer to
give him work against the employer's will, this is oppression."

18. Ver Buiser, Acuña & Intengan v. Leogardo (MOLE) & Gen Telephone Dir /
GR Nol L-63316 / 7.31.84 / Groups of Employees - Probationary Employees
282(281) / Guerrero, J p:
F: Ps are employed by PC Company as sales reps, Ps entered as ProBs for 18 months,
during w/c they will be evaluated, and w/ quotas. Failing to meet, they were dismissed,
thus the suing, assailing that they’ve already met the 6 month
Mandatory ProB requirements, thus making them regular employees. MOLE RD
dismissed, although claims for allowances were ordered to be paid. Appealing, MOLE
PR affirms, justifying the unusual period of the ProB.Hence this.
I: WON MOLE PR committed grave abuse of discretion in finding otherwise.
R: Dismissed. We reject petitioners' contentions. They have no basis in law. 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. Policy Instruction No. 11 of the
Minister of Labor and Employment has clarified any and all doubts on the period of
probationary employment. It states as follows: “Under the Labor Code, six (6)
months is the general probationary period, but the probationary period is actually
the period needed to determine fitness for the job. This period, for lack of a better
measurement is deemed to be the period needed to learn the job.”
In the case at bar, it is shown that private respondent Company needs at least
eighteen (18) months to determine the character and selling capabilities of the
petitioners as sales representatives. Publication of solicited ads are only made a
year after the sale has been made and only then will the company be able to
evaluate the efficiency, conduct, and selling ability of its sales representatives, the
evaluation being based on the published ads. Moreover, an eighteen-month
probationary period is recognized by the Labor Union in the private respondent
company.
The practice of a company in laying off workers because they failed to make the work
quota has been recognized in this jurisdiction. In the case at bar, the petitioners' failure
to meet the sales quota assigned to each of them constitute a just cause of their
dismissal, regardless of the permanent or probationary status of their
employment. Failure to observe prescribed standards of work, or
to fulfill reasonable work assignments due to inefficiency may constitute just cause
for dismissal. This management prerogative of requiring standards may be availed of
so long as they are exercised in good faith for the advancement of theemployer's
interest.

19.Mariwasa & Dazzzo v. Leogardo (MOLE PR) & Dequila / GR No. 74246 / 1.26.89 /
Groups of Employees - Probationary Employees 282(281) / Narvasa, J p:

F: PR was hired by P under ProB, after such period she was advised that her
performance was unsatisfactory, to give her a chance instead of dispensing, another 3
months will be added to her ProB. P didn’t improved, she was terminated. Suing, NCR
MOLE dismissed her case, appealing to the MOLE reversing, declaring her already a
regular employee when dismissed. Hence this.

I: WON ProB status may be extended.

R: Petition Granted. MOLE order reversed. It was held in Buiser vs. Leogardo, 131
SCRA, 151, 156 July 31, 1984, that a stipulation in an employment contract providing
for an eighteen-month probationary period constitutes a lawful exception to the
statutory prescription limiting such periods to six months. 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.
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 proscribing 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.

20. Holiday Inn Manila, Liner &or Disquitado v. NLRC & Honasan / GR No. 109114 /
9.14.93 / Groups of Employees - Probationary Employees 282(281) / Cruz, J p:
F: Honasan PR was hired as an OJT, after w/c, as an ProB for 6mos. 4
days (11.8.91) before the end of her ProB she was dismissed on the ground that she had
not come up to the standards of the P Hotel. Suing, LA found dismissal justified,
appealing, NLRC found her to had become a regular employee then, hence this.

I: WON P had become a Regular Employee.

R: Dismissed. On the issue of illegal dismissal, we find that Honasan was placed by
the petitioner on probation twice, first during her on-the-job training for three
weeks, and next during another period of six months, ostensibly in accordance with
Article 281. Her probation clearly exceeded the period of six months prescribed by
this article. Even if it be supposed that the probation did not end with the
three-week period of on-the-job training, there is still no reason why that period
should not be included in the stipulated six-month period of
probation. Honasan was accepted for on-the-job training on April 15, 1991. Assuming
that her probation could be extended beyond that date, it nevertheless could continue
only up to October 15, 1991, after the end of six months from the earlier date. Under this
more lenient approach, she had become a regular employee of Holiday Inn and acquired
full security of tenure as of October 15, 1991.
Art. 279. 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. The grounds for the removal of a regular employee are
enumerated in Article 282, 283 and 284 of the Labor Code. The procedure for such
removal is prescribed in Rule XIV, Book V of the Omnibus Rules Implementing
the Labor Code. These rules were not observed in the case at bar as Honasan was
simply told that her services were being terminated because they were found to be
unsatisfactory. No administrative investigation of any kind was undertaken to justify this
ground.
The policy of the Constitution is to give the utmost protection to the working class
when subjected to such maneuvers as the one attempted by the petitioners. This
Court is fully committed to that policy and has always been quick to rise
in defense of the rights of labor, as in this case.

21. St. Theresita’s Academy vs. NLRC (AJG)

G. R. No. 94523 (1992)

Petitioners: St. Theresita ’ s Academy and/or the Servants of St. Joseph,

represented by Sr. Anita Bago
Respondents: NLRC and Lilia Ariola

SUMMARY: Lilia Ariola worked as a school teacher for STA for 22 years before
retiring. Took a break for 3 years, then rehired again by the school because of the
school’s need for good teachers. Because of some issues, the board of directors of the
school decided that they would not rehire retired teachers and that present teachers who
are rehired will not be entitled to a renewal of their contract. After 4 years of
satisfactory service, Ariola was terminated, hence filed for illegal dismissal. LA to SC
ruled that the dismissal was illegal. According to the Manual of Regulations for private
schools, full time teachers who rendered 3 years of satisfactory service shall be
considered permanent. Also, when she was rehired, she need not have to undergo the
3-year probationary employment for new teachers for her teaching competence had
already been tried and tested during her 22 years of service to the school in 1954 to 1976.
Hence, she re-entered service as a permanent teacher already. She could not be
discharged solely because of the expiration of her contract.
FACTS:
Lilia Ariola worked as a school teacher for St. Theresita ’s Academy (STA) for 22
years or for 1954 up to her retirement in 1956.
3 years later, in 1979, the Mother Superior needed her to teach again because the
school is in need of qualified and good Math and English teachers. She agreed, on the
condition that she will be rehired as a regular and not as a newly-hired teacher. STA
accepted.
Pre-termination issue: There is this summer living allowance being paid to the
teachers in 1979-81. After that, STA stopped giving them such, explaining that the
payment of such allowance was a mistake and that they are not anymore able to afford
to give it to them. The teachers protested. This made the owner of STA in Silay City
(Siervas de San Jose) angry! So they issued a resolution which prohibits rehiring of a
retired teacher, and that any rehired teacher who is present as a faculty member shall be
notified that the contract shall not be renewed for the coming year.
After four (4) years of continuous satisfactory service, complainant was notified on
March 1, 1983 that her contract would no longer be renewed at the end of the school
year 1982-83.
Hence, Ariola filed with the NLRC a complaint for illegal dismissal and some
benefits.

Labor Arbiter’s Ruling:

o Ordered STA to pay separation pay.

NLRC’s Ruling:
o The year-to-year contract between petitioner and private respondent violated the
Labor Code, hence, despite the fixed period provided therein, private respondent
became a "regular" employee who could not be dismissed except for cause.
o When the year-to-year contracts went beyond three years, private respondent became
a "regular" or "permanent" employee, pursuant to Sec. 75 of the Manual of Regulations
for private schools, which provides that "full-time teachers who have rendered three
consecutive years of
satisfactory service shall be considered permanent.”
o The policy of the school of no longer renewing the year-to-year contracts of teachers
who had been recalled from retirement, violated the security of tenure of the
complainant.

Hence, this petition

ISSUES:
1. Whether or not Ariola is a regular employee --- YES

HELD:
Petition DISMISSED.
Decision of NLRC affirmed.
RATIO:
STA’s Argument
The NLRC ruling confuses the three year-to-year probationary contracts given to
new teachers before they become "regular and permanent," with the year-to-year or
other fixed period contract given to teachers who are being recalled from retirement;
for the year-to-year contract with a retired teacher is not intended to test the teacher's
fitness to be hired on a permanent basis, unlike a new teacher who must first be tested;
and
It is the prerogative of an employer to adopt a policy of not rehiring retired teachers
and of not renewing the annual contracts of teachers who have been recalled from
retirement.

SC’s Ruling
The Labor Code defines regular employment. However, with respect to school
teachers, paragraph 75 of the Manual or Regulations for Private Schools provides:
o FULL-TIME TEACHERS WHO HAVE RENDERED THREE (3) YEARS OF
SATISFACTORY SERVICE SHALL BE CONSIDERED PERMANENT. (SABI
NGA SA TALK KANINA, CTRL+SHIFT+K)
Furthermore, paragraphs 7 and 9 of the Teacher's Contract which the petitioner and
the private respondent signed, categorically stipulated:
o Par. 7 - This CONTRACT SHALL BE IN FULL FORCE AND EFFECT during the
school year 1982-1983 from June to March, unless sooner terminated by either party for
valid causes and approved by the Director of Private Schools. In the absence of valid
cause(s) for termination of services, this CONTRACT shall be rendered for the same
period until the teacher shall have gained a Regular or Permanent Status, pursuant to
the pertinent provisions of the Manual of Regulations for Private
Schools.
o Par. 9 - This CONTRACT shall not affect the Permanent Status of the teacher, even if
entered into every school year; provided that the Probationary Period for new teachers
shall be three (3) years.
Ariola, after being rehired, worked for four more satisfactory years.
When she was rehired in 1979 she did not have to undergo the 3-year probationary
employment for new teachers for her teaching competence had already been tried and
tested during her 22 years of service to the school in 1954 to 1976. She re-entered the
service in 1979 as a regular or permanent teacher.
She could not be discharged solely on account of the expiration of her fourth annual
contract. She could only be dismissed for cause and with due process, as provided in
the Labor Code.

22. Philippine Daily Inquirer vs. Magtibay (2007)

FACTS: The Philippine DAily Inquirer (PDI) hired Magtibay, on contractual basis, to
assist, for a period of 5 months, the regular phone operator.
After the expiration of Magtibay’s contractual employment, PDI announced the
creation and availability of a new position for a 2nd telephone operator who would
undergo probationary employment.

After the usual interview for the 2nd telephone operator slot, PDI chose to hire
Magtibay on a probationary basis for a period of 6 months. The signing of a
written contract of employment followed.

A week before the end the agreed 6-month probationary period,a PDI
officer handed Magtibay his termination paper, grounded on his alleged failure to
meet company standards. Aggrieved, Magtibay immediately filed a complaint for
illegal dismissal and damages before the LA.

ISSUE: was there illegal dismissal?

HELD: NO

LABOR CODE, Art. 281. Probationary employment.Ç Probationary employment

shall not exceed 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 (1) just cause or (2) 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.

It is undisputed that PDI apprised Magtibay of the ground of his termination,

i.e., he failed to qualify as a regular employee in accordance with reasonable
standards made known to him at the time of engagement, only a week before the
expiration of the six-month probationary period. Given this perspective, does this
make his termination unlawful for being violative of his right to due process of law?

It does not.

Unlike under the first ground for the valid termination of probationary employment
which is for just cause, the second ground does not require notice and
hearing. 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 employment, the employee knows from the very start that he will be
under close observation and his performance of his assigned duties and functions
would be under continuous scrutiny by his superiors. It is in apprising 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 the first ground.

23. CANADIAN OPPORTUNITIES UNLIMITED, INC., Petitioner,

v. BART Q. DALANGIN, JR., Respondent.

BRION, J.:

FACTS:

Dalangin was hired by the company in October 2001, as Immigration and

Legal Manager, with a monthly salary of P15,000.00. He was placed on
probation for six months. He was to report directly to the Chief Operations
Officer, Annie Llamanzares Abad. His tasks involved principally the review
of the clients applications for immigration to Canada to ensure that they
are in accordance with Canadian and Philippine laws.

Through a memorandum signed by Abad, the company terminated

Dalangins employment, declaring him "unfit" and "unqualified" to
continue as Immigration and Legal Manager. The following are the reasons
for Dalangins termination: Obstinacy and utter disregard of company
policies, Lack of concern for the company's interest despite having just
been employed in the company, lack of enthusiasm toward work, and lack
of interest in fostering relationship with his co-employees.

Labor Arbiter Eduardo G. Magno declared Dalangins dismissal illegal. On

appeal, the NLRC reversed the LA decision. Dalangin moved for
reconsideration, but the NLRC denied the motion, prompting him to go to
the CA on a petition for certiorari under Rule 65 of the Rules of Court.

In its decision, the CA reversed the NLRC ruling. As the labor arbiter did,
the CA found that the company failed to support, with substantial evidence,
its claim that Dalangin failed to meet the standards to qualify as a regular
employee.

The CA denied the company's subsequent motion for reconsideration in its.

Hence, this appeal.

ISSUE: Whether or not Dalangin was validly dismissed

HELD:

Labor Law
In International Catholic Migration Commission v. NLRC, the Court
explained that a probationary employee, as understood under Article 281 of
the Labor Code, is one who is on trial by an employer, during which, the
latter determines whether or not he is qualified for permanent employment.
A probationary appointment gives the employer an opportunity to observe
the fitness of a probationer while at work, and to ascertain whether he
would be a proper and efficient employee.

Dalangin was barely a month on the job when the company terminated his
employment. He was found wanting in qualities that would make him a
"proper and efficient" employee or, as the company put it, he was unfit and
unqualified to continue as its Immigration and Legal Manager.

The CA did not believe that the company could fully assess Dalangins
performance within a month. It viewed Dalangins dismissal as arbitrary,
considering that the company had very little time to determine his fitness
for the job.

Contrary to the CAs conclusions, we find substantial evidence indicating

that the company was justified in terminating Dalangins employment,
however brief it had been. Time and again, we have emphasized that
substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.

Dalangin overlooks the fact, wittingly or unwittingly, that he offered

glimpses of his own behavior and actuations during his four-week stay with
the company; he betrayed his negative attitude and regard for the company,
his co-employees and his work.

Dalangin admitted in compulsory arbitration that the proximate cause for

his dismissal was his refusal to attend the company's "Values Formation
Seminar" scheduled for October 27, 2001, a Saturday. He refused to attend
the seminar after he learned that it had no relation to his duties, as he
claimed, and that he had to leave at 2:00 p.m. because he wanted to be with
his family in the province.

When Abad insisted that he attend the seminar to encourage his

co-employees to attend, he stood pat on not attending, arguing that
marked differences exist between their positions and duties, and
insinuating that he did not want to join the other employees. He also
questioned the scheduled 2:00 p.m. seminars on Saturdays as they were
not supposed to be doing a company activity beyond 2:00 p.m.
The "Values Formation Seminar" incident is an eye-opener on the kind of
person and employee Dalangin was. The incident also reveals Dalangins
lack of interest in establishing good working relationship with his
co-employees, especially the rank and file; he did not want to join them
because of his view that the seminar was not relevant to his position and
duties.

Additionally, very early in his employment, Dalangin exhibited negative

working habits, particularly with respect to the one hour lunch break policy
of the company and the observance of the companys working hours.

However, since the company failed to observe the required due process in
terminating probationary employees, Dalangin is entitled to nominal
damages.

GRANTED

24. PEDY CASERES and ANDITO PAEL, Petitioners,

vs.
UNIVERSAL ROBINA SUGAR MILLING CORPORATION (URSUMCO) and/or
RESIDENT MANAGER RENE CABATE, Respondents.

FACTS: Universal Robina Sugar Milling Corporation (respondent) is a corporation

engaged in the cane sugar milling business. Petitioners were employees.

At the start of their respective employments, they were made to sign a Contract of
Employment for Specific Project or Undertaking. Petitioners’ contracts were
renewed from time to time, until May 1999 when they were informed that their
contracts will not be renewed anymore.

Petitioners filed a complaint for illegal dismissal, regularization, incentive leave pay,
13th month pay, damages and attorney’s fees.

LABOR ARBITER: They were not regular employees

NLRC and CA: affirmed

ISSUE: WON they are regular employees

HELD: They are NOT regular employees

ART. 280. Regular and Casual Employees. – The provision 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 actually exists.

The principal test for determining whether an employee is a project employee or a

regular employee is whether 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.

A true project employee should be assigned to a project which begins and ends at
determined or determinable times, and be informed thereof at the time of hiring.

The very nature of the terms and conditions of complainants’ hiring reveals that
they were required to perform phases of special projects for a definite period after,
their services are available to other farm owners. This is so because the planting of
sugar does not entail a whole year operation, and utility works are comparatively
small during the off-milling season.

It must be noted that there were intervals in petitioners’ respective employment

contracts, and that their work depended on the availability of such contracts or
projects. Consequently, the employment of URSUMCO’s work force was not
permanent but co-terminous with the projects to which the employees were
assigned and from whose payrolls they were paid

The fact that petitioners were constantly re-hired does not ipso facto establish that
they became regular employees. Their respective contracts with respondent show
that there were intervals in their employment. In petitioner Caseres’s case, while his
employment lasted from August 1989 to May 1999, the duration of his employment
ranged from one day to several months at a time, and such successive employments
were not continuous. With regard to petitioner Pael, his employment never lasted
for more than a month at a time. These support the conclusion that they were
indeed project employees, and since their work depended on the availability of such
contracts or projects, necessarily the employment of respondent’s work force was
not permanent but co-terminous with the projects to which they were assigned and
from whose payrolls they were paid.
Moreover, even if petitioners were repeatedly and successively re-hired, still it did
not qualify them as regular employees, as length of service is not the controlling
determinant of the employment tenure of a project employee, but whether the
employment has been fixed for a specific project or undertaking, its completion has
been determined at the time of the engagement of the employee. Further, the
proviso in Article 280, stating that an employee who has rendered service for at
least one (1) year shall be considered a regular employee, pertains to casual
employees and not to project employees.

25. Moises De Leon v. NLRC and La Tondeña (G.R. No. 70705)

Facts:

Petitioner De Leon was employed by respondent company La Tondeña as

maintenance man whose work consisted mainly of painting company building
and equipment, and other odd jobs relating to maintenance. After having
worked for respondent for more than a year, petitioner requested that he be
included in the payroll of regular employees, to which the former responded
by dismissing petitioner from his employment. Petitioner having been
refused reinstatement filed a complaint before the Labor Arbiter. Petitioner
asserts that he is a regular employee performing similar functions as of a
regular maintenance and was rehired by respondent company’s labor agency
to perform the same tasks. Respondent company meanwhile claims
petitioner was a casual worker hired only to paint a certain building in the
premises and that his work as painter terminated upon completion of the job.
The Labor Arbiter ruled in favor of petitioner but was reversed on appeal by
the NLRC tribunal.

Issue:

Whether or not petitioner De Leon is a regular employee of respondent.

Ruling: YES.

The primary standard, therefore, of determining a regular employment is the

reasonable connection between the particular activity performed by the
employee in relation to the usual business or trade of the employer. The test
is whether the former is usually necessary or desirable in the usual business
or trade of the employer.
It is not tenable to argue that the painting and maintenance work of
petitioner are not necessary in respondent’s business of manufacturing
liquors and wines, just as it cannot be said that only those who are directly
involved in the process of producing wines and liquors may be considered as
necessary employees. Otherwise, there would have been no need for the
regular Maintenance Section of respondent company’s Engineering
Department, manned by regular employees whom petitioner often worked
with.

The law demands that the nature and entirety of the activities performed by
the employee be considered. In the case of petitioner, the painting and
maintenance work given him manifest a treatment consistent with a
maintenance man and not just a painter, for if his job was truly only to paint
a building there would have been no basis for giving him other work
assignments in between painting activities.

Furthermore, the petitioner performed his work of painting and maintenance

activities during his employment in respondent’s business which lasted for
more than one year. Certainly, by this fact alone he is entitled by law to be
considered a regular employee. And considering further that weeks after his
dismissal, petitioner was rehired by the company through a labor agency and
was returned to his post in the Maintenance Section and made to perform
the same activities that he used to do, it cannot be denied that as activities
as a regular painter and maintenance man still exist.

26.

27. PURE FOODS CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS

COMMISSION, RODOLFO CORDOVA, VIOLETA CRUSIS, ET AL., * respondents.

FACTS: The private respondents were hired by petitioner Pure Foods to work for a fixed
period of five months at its tuna cannery plant in General Santos City. After the expiration of
their respective contracts of employment, their services were terminated. They forthwith
executed a "Release and Quitclaim" stating that they had no claim whatsoever against the
petitioner. Private respondents then filed before the NLRC-Sub-RAB a complaint for illegal
dismissal against the petitioner.

The Labor Arbiter dismissed the complaint on the ground that the private respondents were
mere contractual workers, and not regular employees; hence, they could not avail of the law
on security of tenure. The termination of their services by reason of the expiration of their
contracts of employment was, therefore, justified.
The private respondents appealed the decision to the NLRC which affirmed the LA’s decision.
However, on private respondents' motion for reconsideration, the NLRC rendered another
decision holding that the private respondent and their co-complainants were regular
employees. It declared that the contract of employment for five months was a "clandestine
scheme employed by the petitioner to stifle private respondents' right to security of tenure" and
should therefore be struck down and disregarded for being contrary to law, public policy, and
morals. Hence, their dismissal on account of the expiration of their respective contracts was
illegal. Its motion for reconsideration having been denied, the petitioner came to this Court
contending that respondent NLRC committed grave abuse of discretion amounting to lack of
jurisdiction in reversing the decision of the Labor Arbiter.

ISSUE: Whether or not private respondents are regular employees of petitioner company or
mere contractual employees.

HELD: The SC held that the petition devoid of merit. Under Art. 280, there are two kinds of
regular employees are (1) those who are engaged to perform activities which are necessary or
desirable in the usual business or trade of the employer; and (2) those casual employees who
have rendered at least one year of service, whether continuous or broken, with respect to the
activity in which they are employed.

In the instant case, the private respondents' activities consisted in the receiving, skinning,
loining, packing, and casing-up of tuna fish which were then exported by the petitioner.
Indisputably, they were performing activities which were necessary and desirable in
petitioner's business or trade. Contrary to petitioner's submission, the private respondents
could not be regarded as having been hired for a specific project or undertaking. The term
"specific project or undertaking" under Article 280 of the Labor Code contemplates an activity
which is not commonly or habitually performed or such type of work which is not done on a
daily basis but only for a specific duration of time or until completion; the services employed
are then necessary and desirable in the employer's usual business only for the period of time it
takes to complete the project. The fact that the petitioner repeatedly and continuously hired
workers to do the same kind of work as that performed by those whose contracts had expired
negates petitioner's contention that those workers were hired for a specific project or
undertaking only.

Although, this Court has upheld the legality of fixed-term employment, none of the criteria had
been met in the present case. It could not be supposed that private respondents and all other
so-called "casual" workers of the petitioner KNOWINGLY and VOLUNTARILY agreed to the
5-month employment contract. Cannery workers are never on equal terms with their employers.
Almost always, they agree to any terms of an employment contract just to get employed
considering that it is difficult to find work given their ordinary qualifications. Their freedom to
contract is empty and hollow because theirs is the freedom to starve if they refuse to work as
casual or contractual workers. Indeed, to the unemployed, security of tenure has no value. It
could not then be said that petitioner and private respondents "dealt with each other on more
or less equal terms with no moral dominance whatever being exercised by the former over the
latter.

The petitioner does not deny or rebut private respondents' averments (1) that the main bulk of
its workforce consisted of its so-called "casual" employees; (2) that as of July 1991, "casual"
workers numbered 1,835; and regular employee, 263; (3) that the company hired "casual"
every month for the duration of five months, after which their services were terminated and
they were replaced by other "casual" employees on the same five-month duration; and (4) that
these "casual" employees were actually doing work that were necessary and desirable in
petitioner's usual business. This scheme of the petitioner was apparently designed to prevent
the private respondents and the other "casual" employees from attaining the status of a regular
employee. It was a clear circumvention of the employees' right to security of tenure and to
other benefits like minimum wage, cost-of-living allowance, sick leave, holiday pay, and 13th
month pay. Indeed, the petitioner succeeded in evading the application of labor laws. Also, it
saved itself from the trouble or burden of establishing a just cause for terminating employees
by the simple expedient of refusing to renew the employment contracts.

The five-month period specified in private respondents' employment contracts having been
imposed precisely to circumvent the constitutional guarantee on security of tenure should,
therefore, be struck down or disregarded as contrary to public policy or morals. To uphold the
contractual arrangement between the petitioner and the private respondents would, in effect,
permit the former to avoid hiring permanent or regular employees by simply hiring them on a
temporary or casual basis, thereby violating the employees' security of tenure in their jobs.

Petition is dismissed.

28.Magsalin v. National Organization of Working Men

Facts:
1. The private respondents worked as sales route helpers for the petitioner (Coca Cola)
for 5 months and thereafter they were hired on a daily basis. According to the petitioner,
the respondents were merely hired as substitutes for regular helpers when the latter were
unavailable or due to shortage of manpower/high volume of work. These workers would
then wait every morning outside the gates and if hired, they would be paid their wages at
the end of the day.

2. The respondents asked the petitioner to make them regular but the latter refused.
Hence, 23 of these temporary workers filed a case for illegal dismissal.

Issue: W/N the respondents' work is deemed necessary and desirable in the usual
business or trade of the petitioner
RULING: Yes. The repeated hiring of the respondent workers and continuing need of their
daily services clearly attest to the necessity or desirability of their services in the regular
conduct of the business/trade of petitioner.

In determining whether employment is regular or not, the applicable test is the reasonable
connection between a particular activity performed in relation to the usual business or
trade of the employer. The nature of work must be viewed from the perspective of the
business in its entirety and not confined scope.

29. G.R. No. 110524, July 29, 2002

Douglas Millares and Rogelio Lagda, petitioners
vs NLRC, Trans-global MAritime Agency, Inc., and Esso International Shipping
Co.,LTD., respondents
Ponente: Kapunan

Facts:
On March 14, 2000, the court promulgated its decision ruling in favor of the petitioners
setting aside and reversing the decision of NLRC over the case of the case between
parties.

A motion for reconsideration was filed by the private respondents to which petitioners
filed an opposition.

Court resolve to deny the motion for reconsideration with finality. Subsequently,
FAME filed a motion for leave to intervene and to admit a motion for reconsideration
in intervention. Private respondents also filed a motion for leave to file a second
motion for reconsideration of our decision.

In both petitions of respondent and FAME pray to reconsider the court's ruling
that"Filipino seafarers are considered regular employees within the context of Article
280 of the Labor Code." They claim that the decision may establish a precedent that
will adversely affect the maritime industry.

Millares was employed by ESSO through its local manning agency, Trans-global on
November 1968 as a machinist, in 1975 he was promoted as chief engineer until he
retired in 1989.

On June 1989, Millares applied for leave of absence for one month which was
approved byt trans-globa. Then Millares wrote to the operations managerinforming
hijm of his intention to avail the optional retirement considering that he rendered more
than 20 years of service to the company. But ESSO denied the retirement for the
following grounds: (1) he was employed on a contractual basis (2) his contract of
enlistment did not provide for retirement before age of 60 and (3) he did not comply
with requirement for claiming benefits under CEIP.
On August 1989 Millares requested for an extension of his leave of absence and the
crewing manager then wrote to Millares advising him that respondent ESSO "has
corrected the deficiency in its manpower requirement specifically in the Chief
Engineer rank by promoting a First Assistant Engineer to this position as a result of
(his) previous leave of absence which expired last August 8, 1989. The adjustment in
said rank was required in order to meet manpower schedules as a result of (his)
inability."

On September 26, 1989, ESSO advised MIllares that in view of his absence without
leave, which is equivalent to abandonment of his position, he had been dropped from
the roster of crew members effective September 1, 1989.

On the other hand. Lagda was employed by ESSO as wiper in June 1969, promoted as
Chief engineer in 1980 until his last COE expired on April 10, 1989. On May 1989,
Lagda applied for a leave of absence which was approved by Trans-global and advised
him to report for re-assignment on July 21, 1989.

On June 26, 1989 Lagda wrote to ESSO through Trans-global oresident informing him
of his intention to avail of the optional retirement plan in vies of his 20 years of service.
It was denied by Trans-global on the same grounds as with Millares. He requested to
extend his leave of absence and was approved but later informed by ESSO that in view
of his "unavailability for contractual sea service" he had been droppped from the roster
of crew memebers effective September 1, 1989.

On October 5, 1989, Millares and LAgda filed a complaint-affidavit before POEA for
illegal dismissal and non-payment of employee benefits against ESSO and
Trans-global.POEA dismissed the complaint for lack of merit, which was affirmed by
NLRC. So petitioners elevated their case to this court and obtained favorable action.

Issues: (1) are the petitioners regular or contractual employees? (2) assuming that they
are regular employees, were they dismissed without just cause? (3) does provision of
POEA standard contract for sea farers on board foreign vessels preclude the attainment
by seamen of the status of regular employees? (4) does the decision to contravene
international maritime las, allegedly part of the land?

Ruling:
(1) Petitioners contends that they performed activities which are usually necessary to
the usual business or trade of the company and the fact that they served for 20 years
already is an express acknowledgment that they are regular employees by the private
respondents.Respondents invoke that under the POEA rules and regulation governing
overseas employment seafarers are not regular employees based on international
maritime practice. While intervenor FAME avers that our decision of not reconsidered
will have negative consequence of the manning industry in the Philippines.
From the foregoing cases, it is clear that seafarers are considered contractual
employees. They can not be considered as regular employees under Article 280 of the
Labor Code. Their employment is governed by the contracts they sign everytime they
are rehired and their employment is terminated when the contract expires. Their
employment is contractually fixed for a certain period of time. They fall under the
exception of Article 280 whose employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of
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.19 We need not depart
from the rulings of the Court in the two aforementioned cases which indeed constitute
stare decisis with respect to the employment status of seafarers.

From all the foregoing, we hereby state that petitioners are not considered regular or
permanent employees under Article 280 of the Labor Code. Petitioners' employment
have automatically ceased upon the expiration of their contracts of enlistment (COE).
Since there was no dismissal to speak of, it follows that petitioners are not entitled to
reinstatement or payment of separation pay or backwages, as provided by law.

With respect to the benefits under the Consecutive Enlistment Incentive Plan (CEIP),
we hold that the petitioners are still entitled to receive 100% of the total amount
credited to him under the CEIP. Considering that we have declared that petitioners are
contractual employees, their compensation and benefits are covered by the contracts
they signed and the CEIP is part and parcel of the contract.

In our March 14, 2000 Decision, we, however, found that petitioners Millares and
Lagda were not guilty of "abandonment" or "unavailability for contractual sea
service," as we have stated:
The absence of petitioners was justified by the fact that they secured the approval of
private respondents to take a leave of absence after the termination of their last
contracts of enlistment. Subsequently, petitioners sought for extensions of their
respective leaves of absence. Granting arguendo that their subsequent requests for
extensions were not approved, it cannot be said that petitioners were unavailable or had
abandoned their work when they failed to report back for assignment as they were still
questioning the denial of private respondents of their desire to avail of the optional
early retirement policy, which they believed in good faith to exist.26
Neither can we consider petitioners guilty of poor performance or misconduct since
they were recipients of Merit Pay Awards for their exemplary performances in the
company.

Partial grant. Petitioners reinstated with modification.