Art. 218. Powers of the Commission. The Commission shall have the power and authority: XXXXXXXX d.

notice, direct parties to be joined in or excluded from the proceedings, correct, amend, or waive e. any error, defect or irregularity whether in substance or in form, give all such directions as it may XXXXXXXX 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. (As amended by Section 34, Republic Act No. 6715, March 21, 1989) 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.

Art. 286. When employment not deemed terminated. The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
II. EMPLOYER EMPLOYEE RELATIONSHIP (EER) A. ELEMENTS OF RELATIONSHIP Jurisprudential Tests to Determine Existence of EER: A. The employer has the ability (need not be actual) to exercise control over the following: 1. Payment of Wages payment of compensation by way of commission does not militate against the conclusion EER exists. Under Art. 97 of the Labor Code, "wage" shall mean "however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, price or commission basis"(Insular Life Assurance Co., Ltd. V. NLRC, GR No.119930, 12 March 1998) Wages are defined as remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered, and included the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. [Ruga v. NLRC,181 SCRA 266 (1990)]

2. Hiring employment relation arises from contract of hire, express or implied [Ruga v. NLRC, 181 SCRA 266 (1990)] Selection and engagement of the workers rests with the employers Not a conclusive test since it can be avoided by the use of subcontracting agreements or other contracts other than employment contracts 3. Firing disciplinary power exercised by employer over the worker and the corresponding sanction imposed in case of violation of any of its rules and regulations 4. Control, not only over the end product / RESULT of the work, but more importantly, control over the MEANS through which the work is accomplished. (most essential element; without it, there is no EER) B. Economic Relations Test a subordinate / alternative test. Existing economic conditions between the parties are used to determine whether EER exists. 1. payment of PAG-IBIG Fund contributions 2. payment / remittance of contributions to the State Insurance Fund 3. deduction of withholding tax 4. deduction / remittance of SSS contributions V. POST-EMPLOYMENT A. REGULAR, CASUAL, PROBATIONARY EMPLOYMENT Art. 280. Regular and casual employment Art. 281. Probationary employment Regular Employment Engaged to perform tasks usually necessary and desirable to the business of the employer Regular employment does not mean permanent employment - A probationary employee is considered regular after 6 months, becomes regular. May be terminated only for just /authorized causes Test to determine regular employment Universal Robina Corporation v. Catapang, GR No. 164736. October 14, 2005 The primary standard of determining regular employment is; 1. the reasonable connection between the particular activity performed by the employee to the usual trade or business of the employer. The test

is whether the former is usually necessary or desirable in the usual business or trade of the employer. 2. Also, the performance of a job for at least a year is sufficient evidence of the jobs necessity if not indispensability to the business. This is the rule even if its performance is not continuous and merely intermittent. The employment is considered regular,but only with respect to such activity and while such activity exists.The practice of entering into employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. Casual Employment Activity performed is not usually necessary or desirable in the usual business or trade of the employer, not project and not seasonal Except: if he has rendered at least 1 year of service, whether such service is continuous or broken, he is considered a REGULAR employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Despite the distinction between regular and casual employment, every employee shall be entitled to the same rights and privileges, and shall be subject to the same duties as may be granted by law to regular employees during the period of their actual employment. Fixed-Term Employment Period is agreed upon knowingly and voluntarily by the parties without force, duress, or improper pressure exerted on the employee. Brent case: fixed-term employment repealed by Labor Code. But the Civil Code, a general law, allows fixedterm employment Employee hired on a fixed-term is regular if job is necessary and desirable to business of employer. (Philips Semiconductor v. Fadriquela, GR No.141717, April 2004) Project Employment One whose employment has been fixed for a specific project or undertaking the completion of which has been determined at the time of engagement of the employee; the period is not the determining factor, so that even if the period is more

than 1 year, employee does not necessarily become regular Maraguinot v. NLRC, 284 SCRA 539 (1998) Repeated hiring on a project to project basis is considered necessary and desirable to the business of the employer. Thus, employee is regular. FilSystems v. Puente, GR No. 153832, 18 March 2005 Repeated hiring does not necessarily mean regular employment. Day Certain Rule project employment ends on a certain date does not end on an exact date, but on the completion of the project . Phil. Global Communication case: usual and desirable does not matter because employer hires without intent of making them regular. Regularization is not a management prerogative. It is a mandate of law. (PAL v. Pascua, 15 August 2003) Nature of employment determines regular employment. Art. 280 does not apply to OFWs. (LC does not apply to migrant workers, RA 8042 does.) Poseidon Fishing case: if engaged in deep-sea fishing, locally-hired employees, 280 applies Probationary Employment GR: Not to exceed 6 months Exceptions: a. covered by an apprenticeship agreement stipulating a longer period b. voluntary agreement of parties (especially when nature of work requires a longer period) c. the employer gives the employee a second chance to pass the standards set Termination of Probationary Employment a. just / authorized causes b. when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to employee at the time of his engagement If allowed to work after the probationary period, he shall be considered a REGULAR employee After lapse of probationary period (6 months), the employee becomes regular. (Voyeur Visage, 2005)

Probationary employee may be dismissed before end of the probationary period. Aberdeen Court, Inc. v. Agustin, GR No. 149371, 13 April 2005 There is probationary employment where the employee, upon his engagement, is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement. The services of an employee who has been engaged on probationary basis may be terminated only for a just cause, when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer. In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. Mariwasa Manufacturing, Inc. v. Leogardo, Jr., 26 January 1989 Issue: May the employer and the employee validly agree to extend the probationary period beyond six months? Held: YES. Such an extension may be lawfully agreed upon, despite the seeming restrictive language of Article 281. A voluntary agreement extending the original probationary period to give the employee a second chance to pass the probation standards constitutes a lawful exception to the statutory limit. UST v. NLRC, 15 February 1990 Issue: For private school teachers, what are the legal requirements for acquisition of permanent employment? Held: (1) The teacher is a full-time teacher; (2) the teacher must have rendered three consecutive years of service; and (3) such service must have been satisfactory. Seasonal Employment Work or services to be performed is seasonal in nature and the employment is for the duration of the season Hacienda Fatima v. National Federation of Sugarcane Workers-Food and General Trade, GR No. 149440, 28 January 2003 The fact that seasonal workers do not work

continuously for one (1) whole year but only for the duration of the season does not detract from considering them in regular employment since in a litany of cases, the Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during offseason are not separated from service in said period, but merely considered on leave until re-employed. Workers who have performed the same tasks every season for several years are considered regular employees for their respective tasks. Piece Rate employees who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. The piece rate basis of compensating workers has no bearing on the issue of regularity of their employment. The mere fact that they are paid on a piece rate does not necessarily negate their status as a regular employee. The following factors if present would show that piece-rate employees are regular: Their work is usually necessary or desirable in the usual business or trade of the employer.(Article 280 Labor code) They worked for the employer throughout the year, their work not dependent from a certain project or season. They worked for the employer for more than one year. (Lambo vs. NLRC; Labor of Congress of the Philippines vs. NLRC) B. SECURITY OF TENURE Art. 279. Security of tenure Applies to all establishment or undertakings whether for profit or not Project employees have no security of tenure. Full backwages are computed from the time wages are withheld up to the time the employee is actually reinstated. In the case of project employees, you cannot demand wages for the time when there is no project. Thus, 279 does not apply to project employees. Constructive Dismissal 1. No formal dismissal 2. The employee is placed in a situation by the employer such that

his continued employment has become UNBEARABLE. Veterans Security Agency v. Vargas, GR No. 159293. 16 December 2005 Constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. Abandonment, as a just and valid cause for termination, requires a deliberate and unjustified refusal of an employee to resume his work, coupled with a clear absence of any intention of returning to his or her work. Abandonment is incompatible with constructive dismissal. Article 286 applies only when there is a bona fide suspension of the employers operation of a business or undertaking for a period not exceeding 6 months. In security agency parlance, being placed off detail or on floating status means waiting to be posted. It is the inherent prerogative of an employer to transfer and reassign its employees to meet the requirements of its business. Be that as it may, the prerogative of the management to transfer its employees must be exercised without grave abuse of discretion. The exercise of the prerogative should not defeat an employee's right to security of tenure. The employers privilege to transfer its employees to different workstations cannot be used as a subterfuge to rid itself of an undesirable worker. RELIEFS FOR ILLEGAL DISMISSAL 1. Backwages + Reinstatement without loss of seniority rights, or if reinstatement impossible 2. Backwages + Separation Pay Where reinstatement is ordered, but the position is already filled up, the dismissed employee must still be reinstated if it is still possible. Preventive Suspension justified where the employees continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers (there is a REASONABLE POSSIBILITY of the employee posing such a threat) must not exceed 1 month It is only for the purpose of investigating the offense to determine whether he is to be dismissed or not. IT IS NOT A PENALTY. if more than 1 month, the employee must be actually reinstated or reinstated in the payroll

 officers liable only if with malice and bad faith