Casual and regular employees

Dear Atty. Vlad,

I am a waiter in one of the hotels in Makati City. At the start of my employment, I was made to sign a templated one-page Contract which states that my employment with the Hotel will last for five months only. My work is from Mondays to Fridays and I was also not allowed to work for other hotels or companies. My contract was renewed four consecutive times then all of a sudden, the Hotel did not renew my services anymore. I was told that the Hotel plans to hire regular full-time waiters and I am a mere casual employee. Is this legal and what can I do to protect my rights?

Robert

***

Dear Robert,

From the facts you narrated, you should already be considered a regular employee of the Hotel. The Hotel’s resort to the continuous renewal of your employment contract four times already, is clearly a scheme intended to prevent you from attaining regular status.

In the case of Ariel Espina, et al. vs Highlands Camp, et al., G.R. 220935 and G.R. 219868, 28 July, 2020, the Supreme Court citing the case of Claret School of Quezon City vs Sinday (G.R. 226358, 9 October 2019), stated:

“Thus, in Claret, the Court held that the repeated hiring of employees under a contract less than the six-month probationary period to circumvent regular employment is contrary to law, viz.: xxx where from the circumstances it is apparent that the period has been imposed to preclude the acquisition of tenurial security by the employee, then it should be struck down as being contrary to law, morals, good customs, public order and public policy. The pernicious practice of having employees, workers and laborers, engaged xxx short of the normal six-month probationary period of employment, and, thereafter, to be hired on a day-to-day basis, mocks the law. (Emphasis supplied, citation omitted)

Indeed, Highlands’ cyclical scheme of hiring and rehiring petitioners year after year manifests its intent to prevent them from attaining regular employment. Highlands failed to prove that petitioners freely entered into agreements with it to perform services for a specified period or season. In fact, there is nothing on record to show there was any agreement at all between Highlands and each of herein petitioners. Respondents never presented petitioners’ supposed contracts of employment. In the absence of proof showing that petitioners knowingly agreed on a fixed or seasonal term of employment, we uphold the findings of the labor tribunals that petitioners are regular employees.

You can go to the National Labor Relations Commission in Bookman Building along Quezon Avenue, Quezon City and file a complaint for regularization and illegal dismissal.

I hope I was able to help you based on the facts you stated.

Atty. Vlad del Rosario


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