Regular Employment Rules (Part 2 of 3)
Regular employment is a form of employment where employees are accorded the security of tenure under Article 279 [now 294] of the Labor Code, as amended.
Get an updated/re-numbered copy of the Labor Code 2017 by Atty. Elvin
Why is it important to know whether the position is regular or not? Regular employees can only be dismissed based on just or authorized cause or those provided under the Labor Code. Non-regular workers may be separated from the company for failure to qualify like in the case of probationary worker. Also, for completion of a project just like in the case of project employees or end of season for seasonal workers. Regular employees cannot be terminated due to completion of their activities, end of season or expiration of term.
That’s the reason why HR practitioners should know the distinction so as not to commit wrongful terminations. Imagine a regular employee being terminated upon completion of a project simply because an HR practitioner erroneously thought he was a project employee. That could spell financial disaster for the company.
Hence, there is a need for a test to determine regularity of employment. The Supreme Court laid down the parameters or tests as follows:
- Nature of work test—Whether or not there is reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. If usually necessary or desirable in the usual business or trade of the employer, the employment is deemed regular employment.
- Period of Service test—Whether or not the employee has rendered at least one (1) year of service. The law makes no distinction as to the kind of employment of the employee concerned. The fact alone that an employee has been allowed to work for at least one (1) year, whether the same is continuous or broken, is indicative of regularity of employment in connection with or with respect to the activity in which he is employed and irrespective of whether the same is usually necessary or desirable in the usual business or trade of the employer. While such activity exists, he shall continue to work thereon as regular employee.
- Probationary employment test—Whether or not the employee is allowed to work after the lapse of the probationary period. An employee who is allowed to work after the probationary period shall be considered a regular employee.
Article 280 attempts to define regular employment. The article is a competent response to the rampant practice of making employees “permanent casuals.” It is composed of two (2) paragraphs. Once it is established that the employees are regular under the first paragraph of Article 280, there is no more need to dwell further on the question of whether or not they had rendered one (1) year of service under the second paragraph thereof.
The post above is the second of third installment and is based on the book Guide To Valid Dismissal of Employees Second Edition.
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