INTRODUCTION

The nature of the employment is determined by law, regardless of

any employment contract expressing otherwise.

KINDS OF The law is superior to the name of the contract and the stipulations
provided therein. This is to emphasize the importance of the
EMPLOYMENT constitutional policy in order to afford full protection to
labor. Labor contracts are given importance than ordinary
contracts because it is imbued with public interest, as such it is
subject to the police power of the State. (GMA Network, Inc. vs.
Carlos P. Pabriga, Geoffrey F. Arias, Kirby N. Campo, Arnold L.
Lagahit, and Armand A. Catubig, G.R. No. 176419. November 27,
2013)

However, if it is apparent EXAMPLE

from the circumstances
of the case, that periods
have been imposed to
preclude acquisition of
tenurial security by the
employee," such project
or fixed term contracts
are disregarded for
being contrary to public
policy, (Poseidon Fishing v.
NLRC, 518 Phil. 146,
(2006), as in this case.
KINDS OF EMPLOYMENT
• Juan employment at ABC
Corp. is by virtue of several 1.Regular
project or fixed term contracts
spanning more than 5 years. 2. Casual
The law will disregard these
contracts because it was 3. Probationary
obviously made to prevent
Juan from becoming a regular 4. Project Employment
employee. The project or fixed
term contracts will be 5. Term or Fixed Employment
disregarded for being contrary
157 to public policy. 6. Seasonal Employment

REGULAR EMPLOYMENT

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. (Art. 280, PD 442)
 Example:
(a) those who are Juana was hired by
engaged to perform (b) those who have ABC Corporation as
activities which are rendered at least one packer on July 25,
usually necessary year of service, whether 2021. She continue to
or desirable in the continuous or broken, work at the same
usual business or corporation up to the
with respect to the
trade of the present. Since she had
employer activity in which they are worked for more than a
employed. year, Juana is a regular
employee of ABC
Corporation.
TWO TYPES OF REGULAR TWO TYPES OF REGULAR
EMPLOYEE EMPLOYEE

The test to determine whether one is a regular employee, has been

laid down in Universal Robina Corporation v. Catapang, 509 Phil.
765 (2005) citing Abasolo v. NLRC, 400 Phil. 86, 103 (2000), to wit:
1. The primary standard 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 activity is
usually necessary or desirable in
the usual business or trade of the
employer. The connection can be
determined by considering the
nature of work performed and its
relation to the scheme of the
particular business or trade in its
entirety.
In a construction company, the
Example
No. 1: work of an engineer has
reasonable connection to the
2. If the employee has been usual trade or business of the
performing the job for at least a
year, even if the performance is employer.
not continuous and merely
intermittent, the law deems
repeated and continuing need for The work of the engineer is
its performance as sufficient
evidence of the necessity if not usually necessary or desirable in
indispensability of that activity to the usual business or trade of the
the business. Hence, the
employment is considered construction company. Without
regular, but only with respect to the engineer the construction
such activity and while such
activity exists. (Emphasis and company’s operation will be
underscoring supplied.
greatly affected.

The second test focus on the period of Regular or Permanent

time the employee had been working Employment enjoy the
with the company. If the employment last benefit of security of
for at least a year it means the work of
tenure. They can only
the employee is necessary to the
business. be terminated for
As such, the employee is considered causes provided by law
regular with respect to his work and and after affording them
while such work exist in the company. due process.

If the employee has rendered service
for at least one (1) year in a particular
company, whether continuous or
broken, the employee shall be
considered a regular employee with
respect to the activity they are
employed and will continue to render
the service while such activity exists.
Casual Employment performs work
that is not usually necessary or
primarily related to the employer’s
business or trade.
Casual Employment performs work that is not
usually necessary or primarily related to the
employer’s business or trade.
SUBSTANTIVE DUE
PROCESS
Substantive due process
means that the dismissal
must be for any of the: (1)
just causes provided
under Article 297 (Art.
282) of the Labor Code or
the company rules and
regulations promulgated
by the employer; or (2)
authorized causes under
Article 285 (Art. 300).
CASUAL EMPLOYMENT
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.
Due process means the dismissal of
DUE PROCESS
regular employees by the employer
requires the observance of the two-
fold due process, namely: (1)
substantive due process; and (2)
procedural due process. Alphaland
failed to observe both substantive and
procedural due process in dismissing
Agustin from employment. (Redentor Agustin
vs. Alphaland Corporation, et al., G.R. No. 218282, September
09, 2020)
PROCEDURAL DUE In the case of termination of employment
PROCESS
Procedural due process for offenses and misdeeds by employees,
means that the
employee must be
i.e., for just causes under Article 297
accorded due process (Art. 282) of the Labor Code, employers
required under Art. 292
(b) of the Labor Code, are required to adhere to the so-called
the elements of which
are the twin-notice rule
"two-notice rule." Orlando Farms Growers Association v. National
Labor Relations Commission, 359 Phil. 693, 701(1998) [Per J. Romero, Third Division]
and the employee's. Lima
Land, Inc. v. Cuevas, 635 Phil. 36
(2010).
 This was explained in King of Kings
Transport v. Mamac, G.R. No.
166208 June 29, 2007 outlined what
"should be considered in terminating the
services of employees"
(1) The first written notice to
be served on the employees
should contain the specific
causes or grounds for
termination against them,
and a directive that the
employees are given the
opportunity to submit their
written explanation within a
reasonable period.
"Reasonable opportunity" under the
Omnibus Rules means every kind of
TWO-NOTICE RULE
assistance that management must accord
to the employees to enable them to
prepare adequately for their defense.
This should be construed as a period of at
least five (5) calendar days from receipt of
the notice to give the employees an
opportunity to study the accusation
against them, consult a union official or
lawyer, gather data and evidence, and
decide on the defenses they will raise
against the complaint.
After serving the first notice, the
employers should schedule and
conduct a hearing or conference
wherein the employees will be given
the following opportunity to:
(a) explain and clarify their defenses to
the charge against them;
(b) present evidence in support of their
defenses; and
(c) rebut the evidence presented
against them by the management.

TWO-NOTICE RULE
(2) After determining that termination of employment is
justified, the employers shall serve the employees a written
notice of termination indicating the following:
(a) all circumstances involving the charge against the
employees have been considered; and
(b) grounds have been established to justify the severance of
their employment.

PROBATIONARY EMPLOYMENT As a general rule, EXAMPLE

probationary employment ANSWER
cannot exceed six
months. Otherwise, the Juana should be
Probationary employment shall not exceed six (6) employee concerned Juana was hired by ABC Corporation as
months from the date the employee started working, shall be regarded as a
considered a
a probationary employee on
unless it is covered by an apprenticeship agreement regular employee. An regular employee.
stipulating a longer period. (Art. 296 (Art. 281), PD employee who is allowed May 2, 2023. From May 2, 2023 up to
442 as amended) to work after a November 5, 2023 she still works for Juana had worked
Moreover, it is indispensable in probationary employment that the
probationary period shall ABC Corporation for more than six
be considered a regular
employer informs the employee of the reasonable standards that employee. (Art. 296 (Art. months from the
will be used as basis for his or her regularization at the time of his
or her engagement. In the event that the employer fails to comply
281), PD 442 as time she started
amended)
with the aforementioned, then the employee is considered a
QUESTION: working.
regular employee.[Philippine National Oil Company-Energy Development
Corporation v. Buenviaje, 788 Phil. 508, 529 (2016).] What is the employment
status of Juana?
 A probationary employee is
one who is placed on trial by
an employer, during which the
employer determines whether
or not the probationary A probationary employee enjoys security of Hence, the services of a probationary
employee is qualified for tenure. However, they can be terminated for a employee may be terminated for any of
just or authorized cause. They can also be the following:
permanent employment.[Canadian dismissed due to failure to qualify in (1) a just cause;
Opportunities Unlimited, Inc. v. Dalangin, Jr., 681 accordance with the standards of the employer (2) an authorized cause; and
Phil. 21, 33 (2012) (3) when he or she fails to qualify as a
made known to him or her at the time of his or
regular employee in accordance with
her engagement. the reasonable standards prescribed by
the employer.[Abbott Laboratories,
Philippines v. Alcaraz, 714 Phil. 510, 533
(2013)]

EXAMPLE Answer:
Yes, the employer
Juan was hired as a probationary employee on May 1,
2023. At the start of employment, Juan was informed of
can validly terminate
the standards set by the company. One such standard is the probationary
a monthly production quota and good attendance. employment
On May 2023 – Juan failed to meet the monthly contract, because
production quota and he was tardy for 15 days. Juan failed to meet
On June 2023 – Juan again failed to meet monthly
production quota and he was tardy for 10 days.
the company
On July 2023 – Juan managed to meet the monthly standard and his
production quota but is tardy for 10 days. employment does
not exceeds six
months.
Question: Can the employer
terminate the probationary
employment on August
2023? Why?

PROJECT EMPLOYMENT The project could either be: Example No. 1

(1) a particular job or
undertaking that is within the (1) a particular job or undertaking that is within the regular or usual business of the employer
regular or usual business of the company, but which is distinct and separate, and identifiable as such, from the other undertakings of
Project Employment is where an employee is hired for a employer company, but which is the company;
specific project or undertaking and the employment distinct and separate, and
duration is specified by the scope of work and/or length of identifiable as such, from the
the project. other undertakings of the An example of the first type is a particular construction job or project of a construction company. A
company; or construction company ordinarily carries out two or more identifiable construction projects: e.g., a
(2) A particular job or twenty-storey building in Manila; a commercial mall in Makati City; and a building in Cebu City.
TEST TO DETERMINE PROJECT EMPLOYMENT undertaking that is not within the
regular business of the
According to jurisprudence, the principal test for corporation. University of Sto.
determining whether particular employees are Employees who are hired for the carrying out of one of
Tomas (UST) vs. Samahang
properly characterized as "project[based] Manggagawa ng UST, Fernando these separate projects, the scope and duration of which
employees" as distinguished from "regular Pontesor, Rodrigo Clacer, Santiago has been determined and made known to the employees at
employees," Buisa, Jr., and Jimmy the time of employment, are properly treated as “project
Whether or not the employees were assigned to Nazareth, G.R. No. 184262, April employees,” and their services may be lawfully terminated at
carry out a "specific project or undertaking," the 24, 2017
duration (and scope) of which were specified at the completion of the project.
time they were engaged for that project.
Example No. 2 EXAMPLE
(2) A particular job or undertaking that is not within the regular business of the corporation.
Brief examples of what may or may not be considered identifiably
distinct from the business of the employer are in order.
The term “project” could also refer to, secondly, a particular
job or undertaking that is not within the regular business of the In Philippine Long Distance Telephone Company v. Ylagan, G.R. No.
corporation. Such a job or undertaking must also be 155645, November 24, 2006, the Court held that accounting duties
identifiably separate and distinct from the ordinary or regular were not shown as distinct, separate and identifiable from the usual
business operations of the employer. The job or undertaking undertakings of therein petitioner PLDT. Although essentially a
also begins and ends at determined or determinable times. telephone company, PLDT maintains its own accounting department to
which respondent was assigned. This was one of the reasons why the
Court held that respondent in said case was not a project employee.

On the other hand, in San Miguel Corporation v. National Labor
In order to safeguard the rights of
Relations Commission, G.R. No. 125606. October 7, 1998, respondent
workers against the arbitrary use of the
was hired to repair furnaces, which are needed by San Miguel
word "project" to prevent employees
Corporation to manufacture glass, an integral component of its
from attaining a regular
packaging and manufacturing business. The Court, finding that status, employers claiming that their
respondent is a project employee, explained that San Miguel workers are project[-based] employees
Corporation is not engaged in the business of repairing should not only prove that the duration
furnaces. Although the activity was necessary to enable petitioner to and scope of the employment was
continue manufacturing glass, the necessity for such repairs arose specified at the time they were
only when a particular furnace reached the end of its life or operating engaged, but also, that there was
cycle. Respondent therein was therefore considered a project indeed a project. Omni Hauling Services v.
employee. Bon, 742 Phil. 335, 343-344 (2014) (Emphases
and underscoring supplied)
If the particular job or
undertaking is within the
regular or usual business of
the employer company and it
is not identifiably distinct or
separate from the other
undertakings of the company,
there is clearly a constant
necessity for the
performance of the task in
question, and therefore said
job or undertaking should not
be considered a project.

FIXED TERM EMPLOYMENT Term or Fixed-Term

Employment is an This type of
employment contract employment is
where an employee determined not by
renders service for a the activities that
definite period of time the employee is
engaged to perform
and the employment
but from the
contract ends after
commencement and
the expiration of such termination of the
period. employment
relationship.
 Fixed-term employment to be valid is subject to
In Brent School, Inc. v. Zamora, (G.R. No. the following criteria:
L-48494. February 5, 1990, the SC
ruled that such a fixed term employment 1. It is voluntarily and 2. It satisfactorily
knowingly agreed upon appears that the
contract which specifies that employment by the parties without employer and the
will last only for a definite period, is not any force, duress or employee dealt with
improper pressure each other on more or
per se illegal or against public policy. being brought to bear less equal terms with no
upon the employee and moral dominance
absent any vices of exercised by the former
consent; or over the latter.

More importantly, there must

The SC applied the criteria in the following cases:
Pure Foods Corporation v. National
Labor Relations Commission, G.R.
No. 122653 December 12, 1997
the Court struck down a fixed-
term employment contract after
having found that the employees
and the employer did not deal
with each other in more or less
equal terms. In that case, the
employees were compelled to
accept five (5)-month employment
contracts given the difficulty of
finding work as cannery workers.
Lynvil Fishing Enterprises, Inc. v.
Ariola, G.R. No. 181974, February
1, 2012
the Court held that the fixed-term
employment was invalid because
the employees were doing tasks
necessary to the employer's
business and they were
repeatedly rehired for more than
10 years. It stressed that the
employees' need for a continued
source of income forced them to
accept the fixed-term
employment.
be a contract evidencing the Such day certain is specifically
stated in the employment contract
fixed-term employment. The without the contract, the day
absence of a contract cast certain cannot be determined
with clarity.
doubt on a fixed-term
employment. As the Court
held in the Brent vs. Zamora
case, the decisive
determinant in fixed-term
employments is "the day
certain agreed upon by the
parties for the
commencement and
termination of their
employment relationship.

Example of 1. Overseas employment contracts, which

fixed-term begins and ends at determined or fixed term.
employment
2. Appointments of dean, assistant dean, college
secretary, principal, and other administrative offices in
educational institutions, which are by practice or tradition
rotated among the faculty members, and where fixed
terms are a necessity, without which no reasonable
rotation would be possible.

3. Certain company officials may be elected for

what would amount to fixed periods, at the
expiration of which they would have to stand
down because the stockholders or the board of
directors for one reason or another did not re-
elect them. (Brent School, Inc. v. Zamora, (G.R.
No. L-48494. February 5, 1990)
 SEASONAL EMPLOYMENT
Article 295 of the Labor Code defines
seasonal employees as those whose
work or engagement is seasonal in
nature and the employment is only for
the duration of the season.

Seasonal employees may be

Seasonal employment is an considered as regular
arrangement where an employee is employees. Seasonal
hired to work during a particular
season in an activity that is usually employment becomes regular
necessary or desirable in the usual seasonal employment when the
business or trade of the employer. employees are called to work
from time to time. (Hacienda Cataywa v.
Lorezo, 756 Phil. 263, 273 (2015).
This is an employment where the job, work or service to be done
or performed is seasonal in nature and the employment is only
for the duration of the season. For Seasonal employees, their
employment legally ends upon completion of the seasonal
activity.

The requisites for seasonal employees to Seasonal workers who are The nature of their
become regular employees are as follows: called to work from time to relationship with the
time and are temporarily laid employer is such that
1. The seasonal employees 2. They must have been off during off-season are not during the off season,
should perform work or employed for more than one separated from service in that they are temporarily laid
services that are seasonal (1) season.
period, but merely off; but reemployed
in nature; and during the summer
considered on leave until season or when their
re-employed. services may be needed.

Hacienda Fatima v. National

Federation of Sugarcane
Mercado, Sr. v. NLRC
EXAMPLE
Workers-Food & General
Trade In ABC Tobacco Farm, Juan and Juana were
regularly called back to work during tobacco
the Court held that it was held that when harvest for several years. On the other hand, Toto
seasonal workers who seasonal employees are only worked as picker for one season because he
free to contract their was offered a higher pay by another farmer.
have worked for one
services with other farm
season only may not owners, then the former
be considered regular are not regular Juan and Juana will be considered as
employees. employees. regular seasonal employees. Toto who only
work once because he offered his services
to other farm is only a seasonal employee.
At present, aside from farm
industry, farm workers
EXAMPLE seasonal work in business
generally fall under the
definition of seasonal
employees. Nowadays,
employers in the business
industry resort to seasonal
Hotels, restaurants and
employment. They hire resorts- may hire
“regular seasonal employees” Retail Store such as SM, additional staff to answer
who are called to work during
peak seasons (e.g. Christmas Robinsons, Ayala Malls the demand during peak
season) and are temporarily and others – may hire season.
suspended during off-
seasons. additional promodisers,
baggers, checkers during
Christmas season.

FOR CASE DIGEST

6 Abbott Laboratories, Philippines v. Alcaraz, 714 Phil. 510, 533 (2013)

1 Redentor Agustin vs. Alphaland Corporation, et al., G.R. No. 218282,

7 GMA Network, Inc. vs. Carlos P. Pabriga, Geoffrey F. Arias, Kirby N. Campo, Arnold L.
September 09, 2020
Lagahit, and Armand A. Catubig, G.R. No. 176419, November 27, 2013
2 University of Sto. Tomas (UST) vs. Samahang Manggagawa ng UST, Fernando
Pontesor, Rodrigo Clacer, Santiago Buisa, Jr., and Jimmy Nazareth, G.R. No. 8 Lynvil Fishing Enterprises, Inc. v. Ariola, G.R. No. 181974, February 1, 2012
184262, April 24, 2017

3 Philippine National Oil Company-Energy Development Corporation v. Buenviaje, 9 Canadian Opportunities Unlimited, Inc. v. Dalangin, Jr., 681 Phil. 21, 33 (2012)
788 Phil. 508, 529 (2016).

4 Hacienda Cataywa v. Lorezo, 756 Phil. 263, 273 (2015). 10 St. Luke's Medical Center, Inc. v. Notario, 648 Phil. 258 (2010)

5 Omni Hauling Services v. Bon, 742 Phil. 335, 343-344 (2014)

11 Lima Land, Inc. v. Cuevas, 635 Phil. 36 (2010) 16 Benares v. Pancho, G.R. No. 151827, April 29, 2005

12
Philippine Long Distance Telephone Company v. Ylagan, G.R. 17 Hacienda Fatima v. National Federation of Sugarcane Workers-Food &
General Trade, G.R. No. 149440, January 28, 2003
No. 155645, November 24, 2006
13 Poseidon Fishing v. NLRC, 518 Phil. 146, 157 (2006)
18 Magsalin v. National Organization of Working Men, 451 Phil. 254, 262 (2003)
14 Universal Robina Corporation v. Catapang, 509 Phil. 765 (2005)
19 Abasolo v. NLRC, 400 Phil. 86, 103 (2000)
15 Manila Electric Co. v. NLRC, 506 Phil. 338 (2005
20 San Miguel Corporation vs. NLRC, G.R. No. 125606. October 7, 1998
21 Pure Foods Corporation v. National Labor Relations Commission, G.R. No.
122653 December 12, 1997

22 Mercado, Sr. v. NLRC, G.R. No. 79869 September 5, 1991

23 Brent School, Inc. v. Zamora, G.R. No. L-48494. February 5, 1990

24 International Catholic Migration Commission v. NLRC, 251 Phil. 560 (1989)

25 Pascua v. NLRC, 351 Phil. 48 (1998)