Regular Employment Rules and Principles
Regular employment is deemed to exist where the employee has been engaged to perform activities which are usually necessary or desirable in the usual. This is the express provision of the Labor Code, as amended.
Thus, in Article 295 [Formerly Article 280] of the Labor Code, it states that 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. (See The Labor Code of the Philippines by Atty. Villanueva)
The exceptions to the regular employment include instances 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.
Now, an employment shall be deemed to be casual if it is not covered by the preceding provision on regular employment. However, 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.
Pursuant to Article 295, the Supreme Court held that there are two kinds of regular employees, namely: (Basan vs. Coca-Cola Bottlers, G.R. Nos. 174365-66, February 04, 2015)
(1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and
(2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activities in which they are employed.
Simply stated, regular employees are classified into:
(1) regular employees by nature of work; and
(2) regular employees by years of service.
The former refers to those employees who perform a particular activity which is necessary or desirable in the usual business or trade of the employer, regardless of their length of service; while the latter refers to those employees who have been performing the job, regardless of the nature thereof, for at least a year.
Another instance where there is regular employment is when a supposed to be probationary employee was not apprised of the reasonable standards at the time of engagement. In such case, he is deemed regular from day one.
This ruling is enshrined in the case of Tamson’s Enterprises, Inc. vs. CA (G.R. No. 192881, November 16, 2011, 660 SCRA 374, at 388), where the Supreme Court held that failure to specify the reasonable standards by which employee’s alleged poor performance was evaluated as well as to prove that such standards were made known to him at the start of his employment, makes him a regular employee. In other words, because of this omission on the part of employer, the employee is deemed to have been hired from day one as a regular employee. (See also page 47 of Guide to Valid Dismissal of Employees, 2nd Edition citing Hacienda Primera Development Corporation v. Villegas, G.R. No. 186243, April 11, 2011, 647 SCRA 536, at 543 and UNIVAC Development, Inc. vs. Soriano, G.R. No. 182072, June 19, 2013)
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