TOPIC 3: RIGHT TO SECURITY OF TENURE

Security of Tenure – is the right of the employee to continue work until terminated for a just or
authorized cause (as provided by law).

CONSTITUTIONAL BASIS (Art. 13, Sec. 3, 1987 Constitution)

 The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
 It shall guarantee the rights of all workers to self-organizations, and peaceful concerted
activities, including the right to strike in accordance with law. They shall be entitled to security
of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision making processes affecting their rights and benefits as may be provided by law.
 The State shall promote the principle of shared responsibility between workers and employers
and the preferential use of voluntary modes in settling disputes, including conciliation, and shall
enforce their mutual compliance therewith to foster industrial peace.
 The State shall regulate the relations between workers and employers, recognizing the right of
labor to its just share in the fruits of production and the right of enterprises to reasonable
returns on investments, and to expansion and growth.

STATUTORY BASIS

ARTICLE 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 to his
backwages computed from the time his compensation was withheld from him up to time of his actual
reinstatement. (As amended by RA 6715)

CLASSIFICATION OF EMPLOYMENT AND KINDS OF EMPLOYEES

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 service 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.

ART. 281. Probationary employment. - Probationary employment shall not exceed six (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 just cause or 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.

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.

A Regular Employee may either be

a. Permanent – one who has an indefinite employment, whether passing the probationary stage or
not
b. Probationary – one who is placed in a trial period whose performance is assessed whether
satisfactory or not. If performance is satisfactory, it is followed by a regular employment, if not,
the employment is terminated; One who is on tentative employment during which the employer
determines whether he (employee) is qualified for permanent employment.
i. LC provides that the duration of probation is 6 months. The exceptions are the following (a)
xxx unless it is covered by an apprenticeship agreement stipulating a longer period and (b)
the Manual of Regulations for Private School provides a longer probationary period.
ii. Security of tenure is still available to probationary employees, but only for a limited period.

 An employer has the prerogative whether to subject the employee with probationary
employment or not. Thus, an employee may be considered as a permanent employee on his first
day of work.

Examples of Regular Employees:

 Usually necessary: ex. teller of a bank; machine operator of a manufacturing company

 Usually Desirable: Janitor, gardener, fireman of a garment factory (Guarin vs NLRC); dispatcher,
driver, mechanic of a taxi business; traffic operator of a telephone company (PLDT vs
Montemayor); Gardener, dishwasher of a recreational center or gold club (Baguio vs NLRC)
 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.
 i.e., A is engaged as a carpenter in a bank (casual since not usually necessary). A continued to do
carpentry works for 1 year so he becomes a regular employee BUT ONLY with respect to the
activity which he is engaged and as such after the completion of the project, his employment
also ceased.

2 Kinds of Regular Employees:

 By their nature of work – usually necessary or desirable to the trade of the employee
Ex: airline: pilot, maintenance crew, attendants; meter reader
Fast food Chain: service crew, dishwasher employed on day-to-day basis but worked for ten
months,
 By the Length of Service – those who rendered at least 1 year of service either continuous or
broken
Ex: Painter working at La Tondena for more than 1 year

ART. 280 applies where the existence of the employer employee relationship is not contested and It is
not a yardstick for determining the existence of an employment relationship because it merely
distinguishes between the 2 kinds of employees-regular and casual for the purpose of determining the
right of an employee to certain benefits, to join or form a union, or to security of tenure.

TEST/STANDARD: to determine a regular employment is the reasonable connection between the

particular activity performed by the employee in relation to the employer; has to be whether the former
is usually necessary or desirable to the usual business of the employer; nature of job and not the
contract

BASIC RULE: You CANNOT convert regular employment to another type BUT you can place a regular
employee under probation with the intent to make him permanent

 As to security of tenure, regular employee enjoys security of tenure indefinitely. He cannot be

removed unless for a just or authorized cause. While a probationary employee enjoys limited
security of tenure only for the period of probation.
 Rule is parties are prohibited to stipulate that employee is other than regular if a worker
performs job that is necessary and desirable to the business notwithstanding the written
provisions to the contrary.
 Exception to the rule above (even though you are performing work that is necessary and
desirable to the business of the employer, you are NOT considered holding regular
employment):
o 1. Project employee
o 2. Seasonal employee
PROBATIONARY EMPLOYMENT

GENERAL RULE: employment shall not exceed six months from the date the employee started working

EXCEPTIONS:

 where the work for which the employee has been engaged is learnable or apprenticeable in
accordance with the standards prescribed by the DOLE, the period of which shall be limited to
the authorized learnership or apprenticeship period whichever is applicable; - Job may be highly
technical which requires longer then 6 months
 When it involves academic personnel or those in the teaching/non teaching service
 REASON: Sec. 92 of the Manual of Regulation of Private Schools provide for the probation period
and it governs academic personnels
 Elementary –Secondary: not more than 3 consecutive years of satisfactory service
 Tertiary: not more than 6 consecutive semesters of satisfactory service
 Trimester: not more than 9 consecutive semesters of satisfactory service

May a probationary employment be extended?

General Rule

You CANNOT AGREE TO HAVE PROBATIONARY EMPLOYMENT BEYOND 6MONTHS

Exception

In Mariwasa Manufacturing, Inc. vs. Leogardo (G.R. No 74246, 26 January 1989), the Supreme Court
stated that the extension of the probationary period was ex gratia, an act of liberality on the part of the
employer affording the employee a second chance to make good after having initially failed to prove his
worth as an employee. Such an act cannot 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, the employee 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.

 Period of probation is for the benefit of both the employer and employee that is why it cannot
be extended or shortened unilaterally. Consent must be taken. If it was shortened it will
prejudice the employee.
 Probationary employee becomes regular after the lapse of 6 months except the exceptions;
contracts cannot override the mandate of law; they become regular employees by operation of
the law; ex. not required that employee be issued a regular appointment or must first be
declared as such to attain regular status
  Shall Not Exceed six months means that law provides it merely as a ceiling and that the
probationary period can be shorter (Central Negros Electric Corp vs NLRC)employer determines
initially
 Probation – period within which the FITNESS and the QUALIFICATION of the employees are
tested
 Applying Article 13 of the Civil Code, the probationary period of six (6) months consists of one
hundred eighty (180) days. This is in conformity with paragraph one, Article 13 of the Civil Code,
which provides that the months which are not designated by their names shall be understood as
consisting of thirty (30) days each. The number of months in the probationary period, six (6),
should then be multiplied by the number of days within a month, thirty (30); hence, the period
of one hundred eighty (180) days. (Mitsubishi Motors Phls vs. Chrsyler Phls Labor Union)
 Start counting 6 months from day one started working unless the contract provide otherwise
bec. That will be the start of the assessment.
 Important bec. It will be basis when you become regular. Significance: regular has security of
tenure while probationary no security of tenure; benefits given by employer
 PROBATIONARY EMPLOYEE IS A REGULAR EMPLOYEE (Art. 280)

Termination of Probationary Employees

The services of an employee who has been engaged on probationary basis may be terminated only for a
just or authorized cause, when he fails to qualify as a regular employee in accordance with the
reasonable standards prescribed by the employer; means they have limited tenure and he cannot be
removed except for cause during the period of his probation and such cause is provided by law

 If unsatisfactory – employer has option NOT to hire or to terminate

 If satisfactory – made regular since it is not an option to terminate unless there is a just or
authorized cause

Reasonable standards:

1. Work initiative

2. Quality of Work

3. Discipline

LIMITATIONS TO TERMINATION OF PROBATIONARY EMPLOYEE:

 It must be exercised in accordance with specific requirements of the contract;

 If a particular time is prescribed, the termination must be within such time and if formal notice
is required, then that form must be used;
 the employer’s dissatisfaction must be real and in good faith, not feigned so as to circumvent
the contract or the law
 there must be no unlawful discrimination (Manila Hotel Corp vs. NLRC)
INSTANCES WHERE PROBATIONARY EMPLOYEE BECOMES REGULAR:

1. Probationary employee allowed to continue to work beyond the probationary period.

2. Employee is NOT informed of the standards required to qualify as regular employee.

 Clarion Printing: The hiring of probationary but not informed of the standards: regular since day
started working

3. Employee successfully passes the period of probation

Reason for probation: in order to afford the employer an opportunity to observe the fitness of the
probationary employee while at work and to ascertain where he will become a proper and efficient
employee. Probation implies the purpose of term or period and not the length (International Catholic
Commission vs NLRC)

NO successive probations allowed otherwise it would circumvent right to security of tenure

WHEN PROBATION IS PERMISSIBLE

 When the work requires special qualifications, skills, training or experience

 When the work, job, or position involved is permanent, regular, stable or indefinite, and not
merely casual or intermittent
 When the work is not intended to circumvent the employee’s right to security of tenure
 When it is necessary or customary for the position or job involved

Peremptorily terminating probationary contract before end considered illegal in 2003 Cebu Marine
Beach Resort as fixing of probation is for the benefit of both parties; see 2005 Mauricio involving valid
termination of probationary bank employee who despite several reminders failed to submit
reemployment requirements

CASUAL EMPLOYMENT

An employment shall be deemed to be casual if it is not covered by the preceding paragraph (regular
employment); does not have security of tenure before reaching the one-year period, however, if he has
rendered at least one year of service, whether such service is continuous or broken, he 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. (Art. 280)

 Definition: Where an employee is engaged to perform a job, work or service which is merely
incidental to the business of the employer, and such job, work or service is for a definite period
made known to the employee at the time of the engagement; Sec.5 (b) Rule I Book V
Casual employment if:

1. employed to perform work merely incidental to the business of the employer; ex. janitor in a bank;
cutter of cogon grass in a cultured milk company

2. employment is for a definite period (usually short duration or less than a year)

3. employment status made known to him at the time of the engagement

 If he works for more than a year, he is deemed a regular employee. Continuous or broken he is
still considered a regular employee after 1 year. But only with respect to the activity he is
employed and as long as the activity continues to exist.
 Being a regular casual is coterminous to the existence of activity after which it may be
terminated by operation of law.
 The continuous or broken period of 1 year includes authorized absence.
 No security of tenure – bec.it applies only to regular worker.
 Termination of Service once service has been performed ex. painting of a classroom

Pier 8 Arrastre and Stevedoring Services Inc. vs. Boclot

A casual employee who has not worked for 1 year, whether continuous or broken; Not Regular Employee

PASSI is engaged in providing stevedoring and arrastre services in the port area in Manila. Stevedoring,
dock and arrastre operations include, but are not limited to, the opening and closing of a vessel’s
hatches; discharging of cargoes from ship to truck or dock, lighters and barges, and vice-versa;
movement of cargoes inside vessels, warehouses, terminals and docks; and other related work. In line
with this, petitioners hire stevedores who assist in the loading and unloading of cargoes to and from the
vessels.

Petitioners concede that whenever respondent worked as a reliever stevedore due to the absence of a
regular stevedore, he performed tasks that are usually necessary and desirable to their business.
Petitioners, however, contend that this in itself does not make him a regular stevedore, postulating that
the hiring of respondent as a reliever is akin to a situation in which a worker goes on vacation leave, sick
leave, maternity leave or paternity leave; and the employer is constrained to hire another worker from
outside the establishment to ensure the smooth flow of its operations.

Based on the circumstances of the instant case, this Court agrees. It takes judicial notice that it is an
industry practice in port services to hire “reliever” stevedores in order to ensure smooth-flowing 24-
hour stevedoring and arrastre operations in the port area. No doubt, serving as a stevedore, respondent
performs tasks necessary or desirable to the usual business of petitioners. However, it should be
deemed part of the nature of his work that he can only work as a stevedore in the absence of the
employee regularly employed for the very same function. Bearing in mind that respondent performed
services from September 1999 until June 2003 for a period of only 228.5 days in 36 months, or roughly
an average of 6.34 days a month; while a regular stevedore working for petitioners, on the other hand,
renders service for an average of 16 days a month, demonstrates that respondent’s employment is
subject to the availability of work, depending on the absences of the regular stevedores. Moreover,
respondent does not contest that he was well aware that he would only be given work when there are
absent or unavailable employees. Respondent also does not allege, nor is there any showing, that he
was disallowed or prevented from offering his services to other cargo handlers in the other piers at the
North Harbor other than petitioners. As aforestated, the situation of respondent is akin to that of a
seasonal or project or term employee, albeit on a daily basis.

Anent petitioners’ contention that respondent is neither a probationary nor a casual employee, this
Court again refers to Article 280 of the Labor Code.

The second paragraph thereof stipulates in unequivocal terms that all other employees who do not fall
under the definitions in the first paragraph of regular, project and seasonal employees, are deemed
casual employees. Not qualifying under any of the kinds of employees covered by the first paragraph of
Article 280 of the Labor Code, then respondent is a casual employee under the second paragraph of the
same provision.

The same provision, however, provides that a casual employee can be considered as regular employee if
said casual employee has rendered at least one year of service regardless of the fact that such service
may be continuous or broken. Section 3, Rule V, Book II of the Implementing Rules and Regulations of
the Labor Code clearly defines the term “at least one year of service” to mean service within 12 months,
whether continuous or broken, reckoned from the date the employee started working, including
authorized absences and paid regular holidays, unless the working days in the establishment as a matter
of practice or policy, or that provided in the employment contract, is less than 12 months, in which case
said period shall be considered one year. 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 of the employer. Applying the foregoing, respondent, who has performed
actual stevedoring services for petitioners only for an accumulated period of 228.5 days does not fall
under the classification of a casual turned regular employee after rendering at least one year of service,
whether continuous or intermittent.

OTHER CLASSIFICATION (SPECIAL LAWS)

CONSTRUCTION INDUSTRY

a. Project

b. Non-Project

b.1. probationary
 b.2. regular

b.3. casual

Please see - Department Order No. 19, Series of 1993 or the GUIDELINES GOVERNING THE
EMPLOYMENT OF WORKERS IN THE CONSTRUCTION INDUSTRY

Goma vs. Pamplona Plantation Incorporated, G.R. No. 160905, July 4, 2008

Failure To Report To The DOLE The Completion Of The Project Ad Required By DOLE D.O. No. 19 Is
Indicative That Employee Is Regular And Not Project

The principal test used to determine whether employees are project employees as distinguished from
regular employees, is whether or not the employees were assigned to carry out a specific project or
undertaking, the duration or scope of which was specified at the time the employees were engaged for
that project. In this case, apart from respondent’s bare allegation that petitioner was a project
employee, it had not shown that petitioner was informed that he would be assigned to a specific project
or undertaking. Neither was it established that he was informed of the duration and scope of such
project or undertaking at the time of his engagement.

Most important of all, based on the records, respondent did not report the termination of petitioner’s
supposed project employment to the Department of Labor and Employment (DOLE). Department Order
No. 19 (as well as the old Policy Instructions No. 20) requires employers to submit a report of an
employee’s termination to the nearest public employment office every time the employment is
terminated due to a completion of a project. Respondent’s failure to file termination reports,
particularly on the cessation of petitioner’s employment, was an indication that the petitioner was not a
project but a regular employee.

IN PRIVATE EDUCATIONAL INSTITUTIONS

Please see CHED Memorandum Circular No. 40, s. 2008

LEGAL REQUISITES FOR A TEACHER TO BE PERMANENT

1. Teacher is a full time teacher

 Full time Teacher: (2010 Revised Manual of Regulations for Private Schools in Basic Education.
Full time and Part Time Faculty.)
 Section 66. Full-Time and Part-Time School Employment. – As a general rule, all private schools
shall employ full-time school personnel. An applicant shall be eligible for a full-time employment
 in a private school whenever he has the minimum qualifications prescribed in this Manual, has
no other remunerative employment requiring regular working hours elsewhere, and whose
services to the extent of at least eight hours during each working day are available during the
entire time the school operates.

A FULL TIME academic personnel or technology teacher is one who meets all the following
requirements:

1. Possesses at least the minimum academic qualification prescribed by the authority under this
Manual for all academic and technology personnel;

2. Paid monthly or hourly, based on the regular teaching loads as provided for in the policies,
rules and standards of the authority of said school;

3. Total working day of not more than 8 hours a day is devoted to the school

4. no other remunerative occupation elsewhere requiring regular hours of work that will conflict
with the working hours in the school;

5. Not teaching full-time in any other educational institution

 All teaching personnel who do not meet the foregoing qualifications are considered part time.

2. Teacher must have rendered three consecutive years of service

3. Such service must have been satisfactory (UST vs NLRC)

CASE: Lacuesta vs Ateneo: Court held that based on the above rules, the 3 semesters served as part time
lecturer could not be credited to her computing the number of years she has served to qualify her
permanent status.

PROBATIONARY PERIOD FOR ACADEMIC PERSONNEL

2010 Revised Manual of Regulations for Private Schools

Section 63. Probationary Period; Regular or Permanent Status. A probationary period of not more than
three years in the case of the school teaching personnel and not more than six months for non-teaching
personnel shall be required for employment in all private schools. A school personnel who has
successfully undergone the probationary period herein specified and who is fully qualified under the
existing rules and standards of the school shall be considered permanent.
IN HOSPITALS

BASIS:

Omnibus Rules, Book III, Rule X, Sec.15

Residents in training. — There is employer-employee relationship between resident physicians and the
training hospitals, UNLESS

 there is a training agreement between them and

 the training program is duly accredited or approved by the appropriate government agency. Xxx

EXCEPTIONS TO REGULAR EMPLOYMENT

IN THE LABOR CODE

1. Seasonal Employment

2. Project Employment

3. Casual Employment

JURISPRUDENCE (Brent School vs. Zamora, February 9, 1990)

4. Fixed Term/Period Employment – an employment that will last only for a definite period, as agreed by
the parties. This kind of employment is not per se illegal or against public policy, even if this kind of
employment is not mentioned in Art. 280 of the Code. Such kind of employment contract may be
justified in the Civil Code.

PROJECT EMPLOYMENT

One 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

Elements:

 where 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;
Note: if one element is absent, your employment is not project employment but may be a regular
employment

Specific Project/Underdaking: an activity which was 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 until the
completion of the project.

Services of project employees are coterminous with the project and may be terminated upon the end or
completion of that project for which they were hired; as compared to regular employees who are legally
entitled to remain in service of their employer until their services are terminated by one or another of
the recognized modes of termination of service. At the end of the project, project employees’
employment is deemed terminated or ended by operation of the law. (Does a Project employee have
security of tenure?)

Length of service of project employee is NOT the controlling test of tenure since the provision on Art
280 that an employee who has served for at least 1 year shall be considered as a regular employee
relates to casual employees and NOT project employees.

NO SUCH THING AS PROBATIONARY PROJECT EMPLOYEE.

TEST: Whether or not the project employees were assigned to carry out a specific project or
undertaking, the duration and scope of which were specified at the time the employees were engaged
for the project; there has to be a PREDETERMINATION of the DURATION OR PERIOD of project
employment;

Illustration:

1. ER hired EE as a fastfood crew and 3 days later after work, ER gives EE a contract as a fixed term
employee. HELD: contract NOT VALID because EE was already a regular employee at onset

2. Same situation but ER offered 2 months probation. HELD: Not valid since the employee must be
informed of the trial period from the time of his engagement

 Project employees may or may not be members of a work pool since a work pool may either be
a project or a regular employee
 Project employees are not entitled to separation pay except if the projects they are working on
have not yet been completed when their services are terminated.
 Employer must report to the regional office of DOLE the termination of the project employee or
the completion of the project. If NOT reported, it does NOT mean that he is NOT a project
employee but it is a badge of regular employment, that is NOT conclusive.
 Completion of Project Not valid reason to separate a project employee who has become regular
  Computing the backwages of project employee who has become regular; the NO Work NO Pay
Principle applies

CIRCUMSTANCES THAT MAKE PROJECT EE REGULAR

1. When there is a continuous rehiring of project employees even after the cessation of a project;

2. When the task performed by the alleged project employee are vital, necessary and indispensable to
the usual business or trade of the employer

Cosmos case:

These projects are distinct and separate, and are identifiable as such, from its usual business of bottling
beverage. Their duration and scope are made known prior to their undertaking and their specified goal
and purpose are fulfilled once the projects are completed. When private respondent was initially hired
for a period of one month and re-hired for another five months, and then subsequently re-hired for
another five months, he was assigned to the petitioner's Maintenance Division tasked with the-
installation and dismantling of its annex plant machines. Evidently, these projects or undertakings, the
duration and scope of which had been determined and made known to private respondent at the time
of his employment, can properly be treated as "projects" within the meaning of the "first" kind.
Considered as such, the services rendered by private respondent hired therein for the duration of the
projects may lawfully be terminated at the end or completion of the same.

Clearly, therefore, private respondent being a project employee, or to use the correct term, seasonal
employee, considering that his employment was limited to the installation and dismantling of
petitioners annex plant machines after which there was no more work to do, his employment legally
ended upon completion of the project.

Purefoods case

Not Project Employee

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.

Alcatel Phils, Inc. vs. Relos

A project employee or a member of a work pool may acquire the status of a regular employee when the
following concur:

 There is a continuous rehiring of project employees even after the cessation of a project; and
 The tasks performed by the alleged project employee are vital, necessary and indispensable to
the usual business or trade of the employer. (Maraguinot, Jr. v. NLRC)

While Relos performed tasks that were clearly vital, necessary and indispensable to the usual business
or trade of Alcatel, Relos was not continuously rehired by Alcatel after the cessation of every project.

2 TYPES OF PROJECT EMPLOYEES

 A particular job WITHIN the regular or usual business of the employer company but which is
DISTINCT and SEPARATE, and IDENTIFIABLE as such from the undertakings of the company; ex.
construction jobs in a hotel and terminal project; installation of computers in a school
 A particular job NOT WITHIN the regular or usual business of the employer company but which
is DISTINCT and SEPARATE, and IDENTIFIABLE from the ordinary or regular business operations
of the employer (cafeteria in a hospital/mall in a school)

TERM OF PROJECT EMPLOYEES

Equipment Technical Services vs. CA

The Court has consistently held, the service of project employees are coterminous with the project and
may be terminated upon the end or completion of that project or project phase for which they were
hired. Regular employees, in contrast, enjoy security of tenure and are entitled to hold on to their work
or position until their services are terminated by any of the modes recognized under the Labor Code.

SEASONAL EMPLOYMENT

Definition

One where the work or service to be performed is seasonal in nature and the employment is for the
duration of the season.
Court decisions consider seasonal employees as regular employees, as their employment relationship is
never severed but only suspended. (Manila Hotel, September 30, 1963; Phil. Tobacco Flue-curing,
December 10, 1998)

REQUISITES FOR A SEASONAL UNDERTAKING:

 Dependent on climatic or Natural Causes – its operations must be limited to a regular, annual, or
recurring part or parts of each year and regularly closes during the remainder of the year due to
climatic or other natural causes;
 Activity is agricultural where the crops are available only in certain times of the year

Regular Seasonal Employees

Refers to seasonal employees who are hired season after season

Nature of Relationship

During the off season they are temporarily laid off but during the summer season they are reemployed,
or when their services may be needed. They are not strictly speaking separated from service but they
are merely considered on leave of absence without pay until they are re employed. Their employment is
never severed but only suspended. (Manila Hotel vs CIR)

 Employer Employee Relationship Exists Between Milling Company and its Workers Even during
off season; during the temporary layoff the laborers are considered free to seek other
employment is natural since they are not being paid yet and must find means of support and
should not mean starvation of the employees and their families since no compensation is
demanded during the period of the layoff
 Upon assumption of the season, employer is obliged to rehire the seasonal employee, he enjoys
security of tenure to that extent.
 Seasonal employees enjoys security of tenure but only for a limited extent; only within the
duration of the season

FIXED TERM EMPLOYMENT

Definition

An employee performing work that is usually necessary and desirable in the business of the employer
wherein the contract of employment stipulates the duration or term of employment

 Not a regular employee even though performing work that is necessary or desirable in the
business of the employer Zamora)
  Not permanent but deemed regular in two senses:

1. the nature of his work is necessary or desirable in the principal business of the employer

2. he enjoys security of tenure during the limited time of employment as before the end of the
agreed period, he cannot be removed without a valid cause and valid procedure otherwise
employer has to pay for the unexpired portion of the term

Brent School vs. Zamora

Fixed Term Employment

Art. 280 does not proscribe or prohibit an employment contract with a fixed period, provided the same
is entered into by the parties without any force, duress or improper pressure being brought to bear
upon the employee and absent any other circumstances vitiating the consent; contracts of employment
governs the relationship of parties.

Accordingly, and since the entire purpose behind the development of legislation culminating in the
present Article 280 of the Labor Code clearly appears to have been, as already observed, to prevent
circumvention of the employee's right to be secure in his tenure, the clause in said article
indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of
regular employment as defined therein should be construed to refer to the substantive evil that the
Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It should
have no application to instances where a fixed period of employment was agreed upon knowingly and
voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon
the employee and absent any other circumstances vitiating his consent, or where it satisfactorily
appears that the employer and employee dealt with each other on more or less equal terms with no
moral dominance whatever being exercised by the former over the latter. Unless thus limited in its
purview, the law would be made to apply to purposes other than those explicitly stated by its framers; it
thus becomes pointless and arbitrary, unjust in its effects and apt to lead to absurd and unintended
consequences.

CREITERIA LAID BY BRENT DOCTRINE: (under which term employment cannot be said to be in
circumvention of security of tenure)

1. must not be entered into merely to circumvent the employee’s security of tenure

2. the fixed period of employment was knowingly and voluntarily agreed upon by the parties without
any force, duress or improper pressure being brought to bear upon the employee and absent any other
circumstances vitiating his consent;

3. It satisfactorily appears that the employer and the employee dealt with each other on more or less
equal terms with no moral dominance exercised by the former or the latter
NOTE: Doctrine is not followed if it is between construction worker (unschooled, illiterate) and the
construction company – not in equal footing

 Employment of deans nothing irregular because they have to be hired for a fixed term to give
the other teachers the opportunity to become deans, principals (Brent School vs. Zamora)