Casual, regular employees

Dear Atty. Vlad,

I am a waiter in a hotel in Manila. I was made to sign a templated one-page contract which states that my employment in the company will last for four months only. I was given yearly increases in salary, 13th-month pay, sick leaves and vacation leaves. I report for work from Mondays to Saturdays and I was also not allowed to work for other hotels. My contract was renewed five 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. Is the hotel correct and what can I do to protect my rights?

Fabian

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Dear Fabian,

Under the facts you shared with me, you should already be considered a regular employee of the hotel. The hotel's resort to the continuous renewal of your employment contract is only a scheme intended by your employer to prevent you from becoming a regular employee.

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.: 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."

"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 the 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."

To protect your rights, you can go to the National Labor Relations Commission's Metro Manila office 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 what you shared me.

Atty. Vlad del Rosario