NATURE & SCOPE OF REGULAR EMPLOYEMeNT

Kinds of employees- Art. 280-282

A) REGULAR EMPLOYEE

-an employee 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. Art. 280

- a person who having satisfactorily passed through a probationary period of employment , is placed on the regular payroll of the company and is assigned to perform work directly related to the regular operations of the business establishments.

EXCEPTIONS:

-where employment has been fixed for a specific project or

undertaking, the completion of which shall automatically

terminate the employment; or

- when the work or service is seasonable in nature and the

employment is for the duration of the season.

CASUAL EMPLOYEE

-an employment shall be deemed to be casual if it

is not covered by the preceding paragraph.

(refers to Art. 280.)

-a] an employee or worker engaged to perform

work or functions which are not usually necessary

or desirable in the usual trade or business of the

employer. He is employed for an indefinite period

(may be for weeks, or months, or even years) and

to assist in the completion of a specific job; or

b] to fill in as temporary substitute in the absence of

another employee; or

c] a person hired occasionally or intermittently to

complete a job.

Casual employees are sometimes referred to as

emergency workers:

They may or may not possess special skills or qualifications.

Their tenure is temporary in nature and they are usually

assigned in clerical, janitorial or manual kinds of job.

They are not included in the permanent payroll of the

establishment.

SEASONAL EMPLOYEE

- when an employee is hired to perform work which is

seasonal in nature and his services are terminated at the

end of the season, then he is deemed a seasonal

employee.

Ex.

When additional women are hired by a department store

during the Christmas season and they are laid off at the

end of the Yuletide season.

PROBATIONARY EMPLOYEE

-is a person employed on a trial or probationary basis usually

for a period not exceeding six (6) months, unless it is

covered by an apprenticeship agreement.

A probationary employee may be terminated:

a] for a just cause or

b] when he fails to qualify as a regular employee according

to standards of the employer.

However, a probationary employee allowed continuing

working after the probationary period shall be considered

a regular employee.

TERMINATION OF EMPLOYEMENT BY EMPLOYER- (ART. 283-

284)

The following are some of the causes for the termination

of employment by employers:

a] for closing or cessation of operation of the establishment

by serving notice on the workers and the Department of

Labor and Employment one month before the intended

date of closure.

b] for serious misconduct of willful disobedience of lawful

orders of employer with respect to his work.

c] for gross and habitual neglect of his duties.

d] for fraud or willful breach of trust reposed in employee.

e] for commission of a crime or offense against the person of

the employer or any immediate member of his family, or

his duly authorized representative, and

f] other causes analogous to the above;

f.1 Theft- deliberate stealing of company

raw materials or supplies is a just cause

for dismissal. It will be unfair to have an

employer continue employing an

employee who has betrayed his trust.

Security of Tenure as guaranteed by the

Constitution does not intend to provide

protection to employees who have

committed acts inimical to the interest of

their employer.

f.2 Abandonment- mere prolong absence

from work does not constitute

abandonment of work. To be a valid

cause for dismissal, there must be a clear

intention on the part of the employee to

give up or abandon his work, like going

to leave without notice or permission

from the employer for a long time as to

disrupt or endanger the operations of

the employer.

It must be clearly shown that there is a

deliberate unjustified refusal of the employee

to resume his employment. Mere absence is

not sufficient ground dismissal.

Abandonment of position is a matter of

intention expressed in clearly certain and

unequivocal acts. (Jardine Davies, Inc. vs.

NLRC, GR #106915, 8/31/93.)

An employee who is terminated for any

of the above just causes is not entitled to

termination pay.

AUTHORIZED CASUES FOR THE TERMINATION OF EMPLOYMENT

a] for installation of labor-saving devices

within the establishment;

b] for redundancy;

c] for retrenchment to prevent losses; or

d] if an employee is suffering from a

disease; and his continued

employment is prohibited by law or his

prejudicial to his health and to his co-

employees.

An employee terminated under any of the above

authorized causes is entitled to collect termination pay.

In the case of cause [a] installation of labor-saving

devices and [b] redundancy, the laid-off

employer/worker is entitled to a separation pay of one

month pay or to at least one month for every year of

service, whichever is higher.

In cases of cause [c] retrenchment to prevent losses or in

cases of closure not due to serious losses, separation pay

will be one month pay or one-half month for every year of

service, whichever is higher. A fraction of at least six

months is also considered as one whole year.

In cases of causes [d] an employee suffering from a

disease, a separation pay of one month salary or one-half

month for every year of service, whichever is higher. A

fraction of at least six months is also considered as one

whole year.

MORAL AND EXEMPLARY DAMAGES MAY BE

RECOVERABLE

When the dismissal of the employee by the employer is

attended by fraud or bad faith, as when the latter

knowingly made false accusations or malicious

imputations of guilt, moral and exemplary damages

may be awarded in favor of the employee. Such

damages may also be awarded to an employee

whose dismissal was done anti-socially or oppressively.

TERMINATION OF EMPLOYEMENT BY EMPLOYEE – [ Art. 286]

An employee may terminate his employment without just

cause by simply giving a one month advance written

notice to his employer. He may be held liable for

damages by his employer if he fails to give such notice.

On the other hand, an employee may terminate his

employment without giving such notice mentioned in the

preceding paragraph for any of the following just causes.

a] serious insult by employer or his representative on the

honor and person of the employee;

b] in human and unbearable treatment by his employer or

representative;

c] commission of a crime or offense against the person of

the employee or any of his immediate family; and

Republic act No. 7641, approved on December 9, 1992,

provides retirement benefits to qualified private

employees in the absence of any retirement plan in the

establishment.

Art. 287- Retirement- Any employee may be retired upon

reaching the retirement age established in the collective

bargaining agreement or other applicable employment

contract.

In case of retirement, the employee shall be entitled to

receive such retirement benefits as he may have earned

under existing laws.

In the absence of a retirement plan or agreement providing

for retirement benefits of employees in the establishment,

an employee, upon reaching the age of sixty [60] year or

more, but not beyond sixty-five [65] years which is the

compulsory retirement age and has served at least five

[5] years in the said establishment.

SECURITY OF TENURE art. 279