POST EMPLOYMENT

Title I
TERMINATION OF EMPLOYMENT
Art. 292 [278]. Coverage.
The provisions of this Title shall apply to all establishments or undertakings, whether for
profit or not.
Art. 293 [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.
1. CONSTITUTIONAL GUARANTY OF TENURE

Security of tenure

Social justice

Sec 3, Art 13 of the Constitution

1.1. NON-REGULAR EMPLOYEES

Art 279 is defective because it recognizes security of tenure only in cases of

regular employment

Probationary, project or seasonal employees also enjoy security of tenure even

only for a limited period of their employment

There is security of tenure for:

o
Limited Period (nonregular/temporary employment)
o
Unlimited Period (regular/permanent employment)
2. TENURE OF MANAGERIAL PERSONNEL

But while managerial employees may be dismissed merely on the ground of loss
of confidence, the matter for determining whether the cause for dismissing an
employee is justified on the ground of loss of confidence cannot be entirely left
to the employer (De Leon vs NLRC)

Even managerial employees are entitled to security of tenure

o
The fact that one is a managerial employee does not by itself exclude
him from the protection of security of tenure
o
Cruz vs Medina

Dean of a college = managerial level position

entitled to ST
o
Equitable Banking Corp vs Sadac/ Hydro Resources Contractors
Corp vs Pagalilauan

In house legal counsel = employee = ST

Similar arrangement may exist as to doctors, nurses,

dentists, public relations practitioners and other
professionals
Art. 294 [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
Michelle Duguil

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.
1. ESSENTIALITY OF EMPLOYER-EMPLOYEE RELATIONSHIP

Art 294 presupposes the existence of employer-employee relationship

X apply where the existence of E to E rel is an issue in dispute

1.2 EXAMPLES OF NON-EMPLOYMENT

SINGER SEWING MACHINE CO VS DRILON ET AL Commission Agent

o
Commission agent = x employee
o
X apply 294 where the existence of an employment relationship is in
dispute
o
Agreement:

X observe office hours

X devote time exclusively for Singer

Manner and method solely to discretion of the collection

agent

Collection agents shoulder their transportation expense

Paid strictly on commission basis

Paid commission based on actual collections

Net amount is what is remitted to singer

Retained Physician
o
Company physician on retained basis = X employee (Philippine Global
Communications, Inc vs De Vera)

A non-employee even after 11 years

o
Lawyer on retained basis for 11 years in the prosecution of illegal
occupants within the mining area without being controlled in the
manner of accomplishing his task
o
Where there is no E to E rel, the non-employee remains as such
despite passage of time
o
One party may render services for and in behalf of another no matter
how necessary for the latters business, even without being hired as
an employee (Atok Big Wedge Co vs Gison)
2. REGULAR EMPLOYMENT

4 kinds of employment:
1. Regular
2. Project
3. Seasonal
4. Casual
5. Fixed period or term employment (*added by the court)

TEST to determine regular employment: Whether the former is usually

necessary or desirable in the usual business or trade of the employer (nature of
the job)

Labor Congress of the Philippines vs NLRC

o
Piece-rate packers of cheese curls or other products to receive a
certain amount for every thousand cheese curls = regular employees

Contract of services does not necessarily negate the existence of employment

relationship (Paguio vs NLRC)

2 KINDS OF REGULAR EMPLOYEES

1

1.
2.

Regular employees by nature of work

Regular employees by years of service

2.1. EXAMPLES OF REGULAR EMPLOYMENT BY NATURE OF WORK

DE LEON VS NLRC maintenance man & painter

o
Moises = Maintenance and painted in wine manufacturing company
o
Paid on a daily basis through petty cash vouchers
o
Served for more than 1 year requested for payroll of regular
workers dismissed
o
La Tondea claimed that Moises was contracted on a casual basis to
paint certain company building
o
LA = reinstate with backwages
o
NLRC = reversed LA
o
Held:

Regular employee

Painting and maintenance work = maintenance man not just

a painter

It is of no moment that Moises was told that when he was

hired, he would only be a casual employee What is
controlling is the nature of the activities performed by the
employee
2.1.a WORKERS SUPPLIED BY LABOR-ONLY CONTRACTOR CONSIDERED
REGULAR EMPLOYEES OF CONTRACTEE

ECAL VS NLRC
o
Company Hi-Line Timber
o
Mr. Ecal labor only contractor

Employee who became a contractor and supplied workers

to Hi-Line Timber

Resignation letter ako po ay magreresign na sa aking

trabaho sapagkat nakita ko na mas malaki kikitain kung
mangongontrata lamang
o
Held:

Petitioner workers = employee of Hi Line Timber

necessary and desirable to main business of Hi-Line

2.2 CONTRACTUAL PROJECT EMPLOYEE BECOMING REGULAR

MAGANTE VS NLRC - carpenter

o
Magante = carpenter made molds (forma or siding of cement posts)
o
Made to sign an employment contract every 3 months
o
Petitioner was told that he could not work anymore because he was
too old Dismissed from work
o
Illegal dismissal case
o
LA = Terms of contract as project employee is not controlling
o
NLRC = reversed
o
SC Held:

Reserved NLRC

Never deployed from project to project of the employer but

was regularly assigned to perform carpentry work

necessary and desirable (ND) in the usual business

X project based
2.1.c DAY TO DAY CONTRACTUAL EMPLOYEE BECOMING REGULAR

BAGUIO COUNTRY CLUB CORP VS NLRC gardener repeatedly hired

o
Calamba = employed as dishwasher and gardener of BCC for 10
months
Michelle Duguil

Rehired as gardener several times

Dismissed
Filed illegal dismissal (ID)
Held:

Employee was repeatedly re-hired to perform tasks ranging

from dishwashing and gardening, aside from performing
maintenance work

ND

Regular Employee (RE)

Performed tasks for more than one year

MAGSALIN VS NOWM sales route helpers for soft drinks company
o
Sales route helpers for soft drinks company
o
Wait every morning outside company premises so that when regular
sales route helpers were absent or additional helpers were needed,
they would be hired and paid a daily wage
o
Undertook tasks of loading and unloading soft drink products
o
Held:

Regular Employee (RE)

Even if postproduction activities = still ND

o
o
o
o

2.1.d TEMPORARY EMPLOYEES BECOMING REGULAR EMPLOYEES

BETA ELECTRIC CORP V NLRC typist clerk

o
Typist clerk
o
Contention of employer: hired for purposes of meeting seasonal or
peak demands of business = untenable
o
probationary employee
o
RE after 6 months
o
ND
2.1.e NO LEGAL ROOM FOR PERPETUAL EMPLOYMENT

SORREDA BS CAMBRIDGE ELECTRONICS CORPORATION technician;

crushed arm
o
Sorredo = hired as technician on per project basis for 5 months
o
5 weeks into the job crushed his left arm; amputated company
officials assured him that he would be made a RE as long as the
company existed
o
After he recovered X allowed to work made to sign
memorandum of resignation
o
Filed ID case Changed it to breach of contract contending that
company refused to fulfill the perfected contract
o
Company contends that they only gave words of encouragement and
not perfected contract
o
LA = reinstatement
o
NLRC and CA = disagreed
o
Held:

Perpetual employment cannot be accommodated by law

A conduct of perpetual employment deprives management

of its prerogative to decide whom to hire, fire and promote
and renders inutile the basic precepts of labor relations

2.2. CASUAL EMPLOYEE; REGULAR EMPLOYEE BY YEAR (S) OF SERVICE

Casual employee, who after one year of service, becomes regular

2

But he is only regular for that work activity for which he was hired
A casual employee may become regular even if he is not issued a regular
appointment
PHILIPPINE GEOTHERMAL VS NLRC carpenter, 3-5 years
o
Occupied positions ranging from carpenter to Clerk II worked under
individual contracts for a period ranging from 15 days to 3 months
o
Rendered service from 3-5 years
o
Employment terminated because employer replaced them with so
called contract workers
o
Issue: W/N respondents may be considered RE due to their length of
service in the company despite the fact that their employment is on
contractual or casual basis
o
Held:

2 kinds of regular employees:

1. ND or
2. 1 year of service

Employees right to security of tenure; casual employee

becoming regular employee

RE

2.2a CASUAL EMPLOYEE WITH LESS THAN 1 YEAR OF SERVICES DOES NOT
BECOME REGULAR

CAPULE VS NLRC cut cogon grass and weed + less than 1 year
employment
o
Hired to cut cogon grass at the back of the factory building
o
X fixed schedule
o
Worked on any day on their own discretion
o
Services terminated by employer
o
Filed ID
o
LA = illegal dismissal
o
NLRC = reversed LA
o
Issue: W/N casual or temporary employees may be dismissed by the
employer before the expiration of the 1 year period of employment
o
Held:

Usual business of employer is the manufacture of cultured

milk

Cutting of cogon = XND X RE

Dismissed before 1 year of service X RE

2.2.b SALARY OF CASUAL EMPLOYEE CONVERTED TO REGULAR SHOULD NOT
BE REDUCED

PHILIPPINE AMERICAN MANAGEMENT ASSOCIATION VS CIR increase

in MW
o
There were casual employees receiving more than the statutory MW
at the time who were converted to regular employees but salaries
determined under a different formula
o
In their case, their actual rate was reduced to the minimum rate and
this was then also multiplied by 30 calendar days
o
Held:

The casual employees have been converted to regular

employees and so should be entitled to be treated as such
in every respect

Otherwise, they would be effectively demoted in rank

P10 x 30 days = 300 monthly salary

Michelle Duguil

2.3. MAY REGULAR JOBS BE CONTRACTED OUT?

Qualified yes or no

Contracting out of job, work or service that results in termination of regular

employees and reduction of work hours or reduction or splitting of bargaining
unit

Allowed when 2 conditions are present:

1. Good faith
2. Exigencies of business

SERRANO VS ISETANN
o
Abolished some regular positions and instead hired regular
contractors
o
Efficiency and economy
o
Subject to following legal bars:
1. Contractor must be a legitimate one and not labor-only
contracting
2. Contracting is not one of the arrangements prohibited under Sec
6 of DO 18-02

DE OCAMPO VS NLRC 3 mechanics

o
Upheld termination of 3 mechanics and their replacement by a
company rendering maintenance and repair services
o
Cost saving program
o
X GAD and malicious
o
management prerogative

ASIAN ALCOHOL CORP VS NLRC water pump tenders

o
Upheld termination of water pump tenders and their replacement by
independent contractors
o
GF
o
Promote efficiency and economy
2.4. CONTRACTING OUT ALMOST ALL REGULAR JOBS

WACK-WACK GOLF AND COUNTRY CLUB VS NLRC

o
Part of wackwack country club was destroyed by fire
o
Suspended the operations of its food and beverage department
notified the DOLE and affected employees
o
Contending that the suspension of operations was discriminatory
employees filed a notice of strike
o
Conciliation Separation benefit or retirement package given
o
Waiver and QC in favor of wack-wack
o
Wack wack entered into a management contract with the Business
Staffing and Management Inc
o
The personnel officer and telephone operator of Wack Wack Golf and
Country club filed application for employment with BMSI hired as
project employees on probationary status identified positions as
redundant termination of employment Filed ID against WW and
BMSI
o
Issue:

W/N there was a severance of employment relationship with

WW? Legal?

W/N the contracting out of the complaints job with BSMI

legal and valid?
o
Held:

YES. Employees themselves availed of the special

separation package, signed a quit claim voluntarily with full
knowledge of the consequences
3

BSMI = independent contractor, sufficient capital and

resources, provided management service to various
industrial and commercial establishment
2.5 DOES CONTRACTING OUT REQUIRE UNIONS CONFORMITY?

NO!

Contracting out is a management rights, subject to regulations already existing

San Miguel Employees Union vs Besamira/ Manila Electronic Co vs

Quisumbing

3. PROJECT EMPLOYMENT: MEANING AND SCOPE

Regular job: usually necessary and desirable in the usual business or trade of
the employer

Project employment and Seasonal employment

o
Entitled to ST at least for the duration of the project or of the season
o
Difference from RE is not in the nature of the work but the duration of
existence

PROJECT EMPLOYEE One whose 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 employer or where the work or
service to performed is seasonal in nature and the employment is for the
duration of the season

Alcatel vs Relos
o
Worker hired by Alcatel for jobs outsourced by PLDT spanning for
more than 7 years
o
SC project employees
3.1. TWO TYPES OF PROJECT ACTIVITIES
1. Particular job or undertaking that is within the regular or usual business
of the employer company, but which is distinct and separate, and
identifiable as such, from the other undertaking of the company

Example: Construction company job

Begins and ends at a determined or determinable time

2. Particular job or undertaking that is not within the regular business of the
corporation which must be identifiably separate and distinct from the
ordinary or regular business operations of the employer and begins and
ends at determined or determinable times

Must be in GF and not merely as a means of evading otherwise applicable

requirements of labor laws

Services of project employees are coterminous with the project and may be
terminated upon the end or completion of the project for which they are hired
3.2. PRINCIPAL TEST

W/N the project employees were assigned to carry out a specific project or
undertaking, the duration (and scope) of which are specified at the time the
employees were engaged for the project

VIOLETA VS NLRC
o
Employee was definitely hired for a project but the absence of
definite duration of the project left to the court to conclude that the
employee was regular
o
DATE OF COVERAGE part are left blank
o
Failure to submit reports of termination = employees are regular
employees

HILARIO VS RADA/ MERCADO SR. VS NLRC

Michelle Duguil

Length of service of a project employee is not the controlling test of

employment tenure but w/n the employment has been for a specific
project or undertaking the completion and termination of which has
been determine at the time of the engagement of the employee
The 2nd paragraph of Art 294 providing that an employee who has
served for at least 1 year shall be considered a RE relates to
CASUAL EMPLOYEES, not project employees

3.3. PROJECT EMPLOYEES IN THE CONSTRUCTION INDUSTRY

FERNANDEZ VS NLRC AND DM CONSUNJI

o
DM consunji presented material documents showing that petitioner
was hired as a project employee with the specific dates of hiring
o
Petitioners = X continuously worked with DM consunji but only
intermittently as he was hired solely for specific projects
o
2 types of employees in the construction industry: (Policy #20)
1. Project Employees X entitled to separation pay if they are
terminated as a result of the completion of the project or any
phase thereof
2. Non-Project employees

Policy instruction #20 superseded by DO19

o
Policy Instruction requires the employer company to report to the
near Public Employment Office the fact of termination of a project
employee as a results of the completion of the project
o
DO 19 X totally dispense with notice requirement but makes and
considers it only as one of the indicators that a worker is a project
employee
3.4. INDICATORS OF PROJECT EMPLOYMENT

Either one or more of the following circumstances may be considered as

indicators that an employee is a project employee:
1. Duration of the specific/ identified undertaking is reasonably determined or
determinable
2. Such is defined in an employment agreement and is made clear to the
employee at the time of hiring
3. Work is in connection with the particular project/undertaking for which he is
engaged
4. Termination of his employment is reported to the DOLE Regional office
having jurisdiction within 30 days following his date of separation from work
5. Undertaking to pay completion bonus to the project employee as practiced
by most construction companies

Samson vs NLRC
o
Failure to report termination = clear indication that the petitioner was
not a project employee
3.5. WORK POOL

Members of a work pool from which a construction company draws its

employees, if considered employee of the construction company while in the
work pool = non-project employees or employees for an indefinite period

If they are employed in a particular project, the completion of the project or any
phase thereof will not mean severance of e to e rel

PHIL NATIONAL CONSTRUCTION CORP (PNCC) vs NLRC

o
Members of a work pool can either be project employees or regular
employees
o
X Finding as to whether the private respondents were indeed free to
leave anytime and offer their services to the employers
4

NLRCs conclusion of regular employment has no factual support and

is thus unacceptable
o

3.5.a PROJECT EMPLOYEE

CARTAGENAS VS ROMAGO Electrical Contractor

o
Romago = electrical contractor
o
Depends for its business on the contracts it is able to obtain from real
estate developers and builders of buildings
o
Work depends on availability of such contracts or projects
o
Held:

Project employees (PE)

Appointments were coterminous with the phase or item of

work assigned to them in said project

Remain PE despite the number of projects in which they

have worked
3.5b PROJECT EMPLOYEES NOT ENTITLED TO SEPARATION PAY; EXCEPTION

GR: SALAZAR VS NLRC project or construction engineer

o
Construction engineer for Monte Piedad building project
o
Petitioners services are coterminous with completion of construction
o
Held:

PE

X entitled to Separation pay

Policy No 20

X required to get clearance for termination; only report

Lack of notice does not entitle the employee to nominal

damage

E: De OCAMPO ET AL VS NLRC contract expired, but project still

ongoing
o
Although the contracts of the project workers had expired, the project
itself was still ongoing and so continued to require the services of the
workers for its completion
o
Real reason for termination of services was because the project
workers filed and participated in strike against the employer
o
Real purpose was for management to retaliate against the worker
3.6. NON PROJECT EMPLOYEE; THREE TYPES

DE JESUS VS PNCC carpenter who vomited blood

o
Carpenter for construction company who vomited blood who was
treated at company clinic and then was no longer accepted
o
Filed for reinstatement + back wages + legal benefits
o
Employer contends that he is a PE because he was employed only for
a specific period and work and subject to Policy #20
o
Held:

Regular employee

Rendered service for more than 10 years

ND in the construction business

Petitioners engagement X predetermined because the

duration of work is contingent upon the progress of
accomplishment

And the company is free to determine the personnel and

the number as the work progresses
Michelle Duguil

Members of a work pool of workers = non-project

employees
3 TYPES OF NON-PROJECT EMPLOYEES:
1. Probationary employees
2. Regular Employees
3. Casual Employees

*Note:

GR: Work pool employees are non-project employees

o
E: If the workers in the work pool are free to leave any time and
offer their services to other employers, then they are PE
employed by a construction company in a particular project or
phase thereof

3.7. WHAT MAKES A PROJECT EMPLOYEE REGULAR

SAMSON VS NLRC 28 years rigger

o
Petitioner = rigger for 28 years
o
Project to project employment renewed several times
o
Rehired immediately after gaps of 1 week from last project to the
succeeding one
o
Held:

RE

ND

TOMAS LAO VS NLRC

o
Continuous and repeated hiring of PE = RE
o
Employment extended long after the supposed project had finished
o
Employment became non-coterminious with the specific projects
o
X submitted report of termination of employment
o
Industrial Commerical Agri Works vs CIR; Archbuil Master
Constructions Inc vs NLRC

WILLIAM UY CONSTRUCTION VS TRINIDAD

o
Repeatedly rehired for 16 years as company driver in 35 projects
o
Test is W/N he has been assigned to carry out a specific project or
undertaking with the duration and scope of his assignment specified at
the time his services is contracted
o
X same ruling as Lao
o
X RE

DM CONSUNJI VS JAMIN (2012 Latest Case)

o
Lao ruling
o
Repeatedly hired for 38 times within almost 31 years as a laborer then
a carpenter in construction projects = RE
o
Where the employee was repeatedly rehired due to demands of
business, his employment ceases to be co-terminous with specific
projects = RE
3.7. SUMMARY: CIRCUMSTANCES THAT MAKE A PROJECT EMPLOYEE REGULAR

A project employee pr a member of a work pool may acquire the status of a

regular employee when the following concur:
1. There is a continuous rehiring of project employees even after cessation of
the project
2. The tasks performed by the alleged project employee are vital, necessary
and indispensable to the usual business or trade of the employer
** Length of time = badge of RE only

MARIGUINOT AND ENERO VS NLRC movie projects employee

5

o
o
o
o
o

Enero and Maringuinot = employed for 2 years, 18 months and 3

years, 23 projects respectively
Loading, unloading of movie equipment, assisting in fixing of lighting
system
RE
Subject to no work, no pay rule
Computing the backwages of project employees who has become
regular; no work, no pay rule applicable

3.7 COMPLETION OF PROJECT NOT VALID READON TO SEPARATE A PROJECT

EMPLOYEE WHO HAS BECOME A REGULAR

If a PE who has gained regular status is separated from employment on the

alleged ground of completion of project and such is unjustified = entitled to
reinstatement with back wages
4. SEASONAL EMPLOYMENT; REGULAR SEASONAL AFTER ONE SEASON

Seasonal employee = RE

Regular seasonal employee are those called to work from time to time

They are not considered separated from service but are merely considered as
on leave of absence without pay until they are reemployed

Employment is never severed; only suspended

Hacienda Fatima vs National Federation of Sugarcane Workers

o
Sugar cane workers = X seasonal = RE
o
Workers worked for more than one season

VISAYAN STEVEDORE TRANS CO VS CIR

o
Engaged in loading and unloading of vessels
o
Workers = supplied by United Workers and Farmers Assoc (UWFA)
o
Regularly work as laborers of the company during milling seasons
since after war up to the milling seasons preceding Nov 11, 1955
when the company refused to engage the services of 139 workers
o
Filed for ULP with the company
o
Held:

E to E between workers and company worked under the

control of the officers and paid by the company

E to e exists during off season X considered as

separated from services, but merely on leave without pay

E to E rel merely suspended, not severed in the meanwhile

4.1. E TO E REL EXISTS BETWEEN MILLING COMPANY AND ITS WORKERS EVEN
DURING OFF SEASON (Industrial commercial agri workers union vs CIR)

Cessation of Centrals milling activities at the end of the season is X permanent

or definitive

Temporary cessation only

Operations are to be later resumed

4.2. SEASON PAKIAO EMPLOYEES

ZAMUDIO VS NLRC
o
Farm workers working in the farm of employer
o
E to E rel
o
Supervision
o
Seasonal
Michelle Duguil

o
o
o
o

Pakiao workers are considered employees if supervised

Rendered service essential for cultivation
X continuous work, but never stopped working for respondent from
year to year from the time he hired them to the time he dismissed
them
Omission of workers in the payroll was not within their control; cannot
be taken against workers

4.3. MERCADO RULING: Project employees do not become regular although

exceeds one year of service

MERCADO VS NLRC
o
Agricultural workers
o
Individual employment exceeds 1 year
o
Employment is for the duration of the season
o
Project employee only
o
hired by other employers = X RE
o
The proviso of 1 year only applies to casual employees and not to
project employees
o
X ID
o
Seasonal employees
4.3.a. MERCADO RULING RECONCILED WITH EARLIER RULINGS

MERCADO ruling does not reverse the earlier rulings that SEASONAL
EMPLOYEES = RE and merely on leave without pay during off seasons

MAGCALAS VS NLRC
o
Regular, X project employees

MANILA HOTEL, GACO CASE

o
Seasonal employees are entitled to separation pay for every year of
service

PHILIPPINE TOBACCO VS NLRC

o
Employment X end with the 1993 season and because they were not
rehired in 1994 = illegal termination
IN SHORT!!!! Doctrine: Seasonal employees are regular and merely considered on
leave of absence without pay during off season
4.4. REGULAR CONTRACTUALS ENTITLED TO BENEFITS OF REGULAR
EMPLOYMENT

CINDERELLA MARKETING CORP VS NLRC

o
Employed as regular contractuals as Salesladies, wrappers,
stockmen, pressers as required by the regular business of petitioner of
sale of dresses
o
Seasonal employees hired by employer at the start of peak season of
the year (Sept to January) as soon as demand ends, terminate
employment
o
1988 CBA negotiations union proposed that employees who are
hired during the peak season be allowed to stay retention of
seasonal employees as regular contractuals enjoy same benefits
as regular employees
o
Agreement that until a regular contractual employee is regularized
excluded from bargaining unit
6

o
o

Filed complaint with NLRC that they be granted same benefits

(especially the one above)
Held:

RE

Employer has engaged in the semantic interplay of words in

distorting the definition of a regular employee

At least 1 year of service

ND

4.5. CASUAL EMPLOYMENT

CASUAL EMPLOYMENT Where an employee is engaged to a perform a job,

work or service (JWS) which is MERELY INCIDENTAL to the business of the
employer, and such JWS is a for a DEFINITE PERIOD made known to the
employee at the time of engagement; provided that any employee who has
rendered at least 1 YEAR OF SERVICE = considered a RE with respect to the
activity in which he is employed and his employment shall continue while such
activity exists

Notwithstanding the foregoing distinctions, entitled to the rights and privileges,

duties and obligations, as may be granted by law to regular employees during
the period of actual employment
5. FIXED PERIOD EMPLOYMENT, WHEN VALID

Under the Civil Code, fixed tern employment contracts are not limited, as they
are under the present Labor code, to those by nature seasonal or for specific
projects with predetermined dates of completion; they also include those to
which the parties by free choice have assigned a specific date of termination

Fixed period employment may arise for various reasons:

o
Substitute a worker on a 1 year study leave
o
60 days special leave
o
Protracted temporary total disability
o
Woman on maternity leave and someone must do her work in her
absence

IS FIXED PERIOD EMPLOYMENT SAME AS PROJECT EMPLOYMENT?

o
A project employment is also a fixed period employment
o
But not all fixed period employment is project or seasonal

BRENT SCHOOOL INC VS ZAMORA

o
Alegre = athletic director, specific term of 5 years
o
Before LC was passed, it was legitimate for them to fix duration of
employment in the contract they signed in 1971
o
3 months before expiration of the stipulated period Alegre was
advised of his termination from service on the alleged ground of
completion of contract, expiration of the definite period of employment
signed by Alegre and received full payment of service
o
Regional directed considerd Brent Schools report as an application for
clearance to terminate employment and refused to give clearance
saying that Alegre is a permanent employee
o
Held:

Alegres contract of employment was lawfully terminated

and X entitled to reinstatement

Michelle Duguil

Art 294 does not apply to instances where a fixed period of

employment was agreed upon knowingly and voluntarily by
the parties, without any force, duress or improper pressure

5.1. BRENT DOCTRINE SUMMARISED

Art 294 does not proscribe or prohibit employment contracts with a fixed period
provided the same is entered into voluntarily and without duress

X necessarily follow that an employees job is ND in the usual business that the
parties are forbidden from agreeing on a fixed period for performance of such
activities

Contracts of employment govern the relationship of the parties

5.2. PRETERMINATION OF FIXED PERIOD EMPLOYMENT, LIABILITY OF EMPLOYER

GR: A fixed period employee = X regular employee

o
E:
1. Nature of his work is ND in the principal business and
2. Enjoys security of tenure during the limited time of his
employment

Before the end of the agreed period he cannot be removed without valid
cause

If removed = ID, breach of contract, entitled to salaries corresponding to

unexpired portion
5.3 ILLEGAL FIXED PERIOD EMPLOYMENT; BRENT RULING CLARIFIED

CIELO VS NLRC truck driver

o
Truck Driver claiming to be ID by Henry Lei Trucking Company (hauler
of cattle, crops and other cargo)
o
LA = reinstatement + backwages
o
NLRC = reversed
o
Terms of the contract: 6 months unless otherwise earlier
terminated at the option of either party
o
Each driver was paid through individual vouchers rather than a
common payroll
o
Held:

Purpose behind the contract was for the employer to evade

the application of labor laws making it appear that the truck
drivers are not regular employees

earlier terminated at the option of either party

employer did not even have to wait for the expiration of the
contract

RE

X seasonal

Where from the circumstances it is apparent that the period

have been imposed to preclude acquisition of tenurial
security by the employee, the should be struck down or
disregarded as contract to public policy, morals, etc