Who Is A Regular Employee?

iStock_000020067800XSmall2-emp-evalIn a very simple language, an employee is any person in the employ of another, who works for another whether it is for a specific job or not, and receives wages, salary or remuneration.

There are different kinds of employees and one of which is a regular employee. The term “regular” means usual, normal or habitual. Logically, a regular employee is someone who does his work in a usual manner. This description is somewhat similar to the labor law definition yet giving more emphasis to whether the nature of the job of an employee is reasonably connected or has something to do with the business of the employer.

Regular Employee Defined

The Labor Code of the Philippines defines a regular employee by specifying its two (2) kinds, namely:

  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 casual employees who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed.

Illustration

Let us say that Mario is hired as a factory worker in a shoe maker company. As soon as he was hired in January 2009, he started working as a shoe maker. His work lasts for three months before he got terminated due to less volume of work. Will he be considered a regular employee under the first kind of a regular employee?

The answer is yes. Mario just worked for three months but then he will be deemed to be a regular employee because of the nature of his work making it usually necessary in the usual business of the employer. He is a shoe maker in a company that produces and supplies shoe wear in the market. The length of time for which he has worked is disregarded considering that it is not essential to the first kind of regular employees.

In the same example, let us assume that Mario, after 2 months with no work, was again called for work, but this time, to do carpentry jobs for the same company which lasted from July to November, and another work from January to June and August to December. To add up the period of his work, Mario has worked for 13 months before he got out of work. Is he a regular employee?

Under the second kind of regular employees, he has worked as a carpenter for the same company for the duration of at least (1) year although not continuous. The law only requires employment for at least a year, whether continuous or not continuous, to be considered a regular employee. Further, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business.  In this case, the period of time worked is necessary in order to know whether an employee will be deemed a regular employee or not.

Based on the discussion above, one can attain a regular employment status either from the nature of his work or the duration of his employment. In either case, an employee can only be terminated for just or authorized cause and after compliance with procedural due process. Otherwise, the employer may be held legally responsible.

Termination of Employees in the Philippines

Termination of Employees in the Philippines–A Guideline to Foreign Employers

In the recent years, the Philippine government has supported campaigns in attracting foreign investments into the country. With these foreign investments, the problem of unemployment and underemployment is considerably solved. In welcoming foreigners in doing business in the Philippines, adequate information must be given to them, not just as regards the fiscal concerns of business, but also with the employment laws of the country.

Employing a worker is often a very happy event both for the employer and the employee. On the reverse, terminating an employee may be a nightmare not just for the employee, but even for the employer. The foreign employer must be reminded to keep guard of Philippine labor laws when dismissing an employee.

Terminating an employee in the Philippines is valid only when these two factors are present: 1) the attendance of a cause for dismissal, and 2) observance of due process.

Causes for terminating an employee are classified as Just Cause and Authorized Cause. JUST CAUSES are acts chargeable to the employee which will result to his termination. Enumerated as such are: a) serious misconduct, b) willful disobedience to lawful orders, c) gross and habitual neglect of duties, d) fraud or willful breach of trust or loss of confidence; e) commission of a crime or offense, and f) other analogous causes.

On the other hand, AUTHORIZED CAUSES of dismissal are those which pertain to the employer. This is further classified into two types – business and disease. The business reasons include: a) installation of labor-saving devices, b) redundancy, c) retrenchment and closure or cessation of business operation. The health reason pertains to the infliction of a disease which, as ascertained by a competent public authority, is incurable within six months, and one which is prejudicial to the health of the employee and his co-workers if employment is continued.

DUE PROCESS in terminating an employee in the Philippines is known as the TWO-NOTICE or TWIN-NOTICE RULE.

The FIRST NOTICE is that which is sent to the employee apprising him in detail of the basis for his possible termination. It must give the employee at least five days from receipt of the notice to prepare his answer.

A Hearing or Conference is schedules after the employee submits his answer. During the hearing, both employer and employee will have the equal chance to present evidence or refute the claims of the other party. This is also an opportunity for a possible amicable settlement between them.

After the hearing, a SECOND NOTICE is sent to the employee apprising him of the decision to terminate his employment. It must indicate how the decision was reached , and that upon careful consideration of all circumstances, basis has been established to justify the termination.