Documentation & Types of Employees

EMPLOYEE RELATIONS:

Atty. Harve B. Abella, Esq.

DEFINITIONS"Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer.

"Employee" includes any person in the employ of a particular employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

DEFINITIONS• "Managerial Employee" is one who is vested with powers

or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but require the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of the labor code;

DOCUMENTATION

• What is documentation?• Any record that is kept regarding an employee's

performance or conduct – both positive and negative. Documentation may consist of copies of actual work products, written statements by or about employees, or your notes of meetings with employees. The record you keep when investigating alleged misconduct is also considered documentation.

• What should be documented?• You should document BOTH the positive and negative issues

that come to your attention:

• • If an employee has done a good job (e.g. worked on a special project, maintained an excellent error rate, was effective with a difficult customer), document these observations and share them with the employee. Positive documentation is an incentive to continue to achieve a high level of effectiveness.

• • If an employee has exhibited poor work habits, has tardiness or attendance problems, isn't meeting quality or quantity standards, is discourteous, or has other such performance or conduct problems, you should document your observations relative to these problems and share them with the employee. This sort of documentation should be presented in a constructive manner to assist the employee in improving.

SUMMARY• DOCUMENTATION IS USED FOR:

• Showing Patterns Career Development• Performance Evaluations • Probationary Determinations• Corrective Actions • Disciplinary Actions• Positive Feedback and Acknowledgement

SUMMARY• DOCUMENTATION SHOULD:• 1. Be a clear record of employee performance/conduct

and/or a clear record of discussions regarding employee performance/conduct.

• 2. Be factual and objective.• 3. Be timely (close to the date of the event being

documented).• 4. Be dated and signed/initialed by the

supervisor/manager.• 5. Be kept in the supervisor's file / HR file and consulted in

the areas listed above.

SUMMARY• DOCUMENTATION SHOULD NOT:

• 1. Be personal or subjective judgements or opinions.• 2. Be too informal or anecdotal (it may be used by others

in conduct or performance cases), be too old (documentation should normally not be more than one year old).

• 3. Be used unless it has been shared with the employee.

KINDS OF EMPLOYMENT

DIFFERENT KINDS OF EMPLOYMENT UNDER THE LCP• REGULAR EMPLOYMENT

• CASUAL EMPLOYMENT

• PROBATIONARY EMPLOYMENT

• PROJECT EMPLOYMENT

• SEASONAL EMPLOYMENT

• FIXED-TERM EMPLOYMENT

Regular Employment• Regular employment is one where, notwithstanding any

written or oral agreement between the employer and employee to the contrary:

• EE has been engaged to perform activities which are NECESSARY & DESIRABLE in the usual business or trade of the ER. (Art. 280, LCP)

• EE has rendered at least ONE (1) YEAR of service, whether such service is continuous or broken, with respect to the activity in which he is employed and his employment shall continue while such activity exists (Art. 280, LCP)

• The employee is allowed to work after a probationary period. (Art. 281, LCP)

TEST OF REGULARITY: reasonable connection between the particular activity performed by the employee in relation to the usual business of the employer

Casual Employment• EE is engaged to perform activities which are not necessary

or desirable in the usual trade or business of the ER• Work is merely incidental to the business of the ER and such

work or service is for a definite period made known to the employee at the time of the engagement. (Art. 280, LCP)

• A CASUAL EMPLOYEE MAY BECOME A REGULAR EMPLOYEE AFTER ONE YEAR OF SERVICE. (Conti vs NLRC, 271 SCRA 114)

• 1 year= whether continuous or broken, with respect to the activity in which his employment shall continue while such activity exists.

• PURPOSE: to give meaning to the constitutional guarantees of security of tenure and right to self-organization (Mercado vs NLRC, Sept 5 1991)

Project Employment• The employment of an employee 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 EE (Art. 280, LCP)

• Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and are considered regular employees

P.E. requirements• DO No. 19, S 1997

1.Specific project phase thereof stated in the employment contract

2.Estimated date of completion of project or phase thereof likewise stated in the contract

3.Employee must have been dismissed every after completion of his project (gaps must be shown in his length of service)

4.There must be a report to the DOLE of his dismissal on account of completion of contract

SEASONAL EMPLOYMENT• Seasonal employment is one where the work or service to be

performed by the employee is seasonal in nature and employment is for the duration of the season (Art. 280, LCP)

• A seasonal employee may become regular after one year of service. Once he attains such regularity, he is properly to be called “Regular Seasonal Employee) – Abasolo vs NLRC, GR No. 118475

• During off season, the relationship of the EE and ER is not severed, the seasonal employee is merely considered on leave of absence without pay.

• Seasonal workers who are repeatedly engaged from season to season performing the same tasks are deemed to have acquired regular employment

Fixed-term (contract employees/contractual) Employment• ALSO KNOWN AS TEMPORARY EMPLOYMENT

• EE is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the employer. The completion of which has been determined at the time of the engagement of the employee

• The employment of an employee is covered by a fixed contract of employment

• Employment that will last for a definite period, as agreed by the parties

• Criteria• Fixed period was knowingly and voluntarily agreed by the parties• Parties dealt with each other on more or less equal terms

Probationary Employment• Probationary employment is one where the employee is on trial

by employer during which the employer determines the qualifications of the employee for regular employment

• GEN RULE: the probationary period should not exceed 6 months (6 months consists of 180 days – Mitsubishi Motors vs Chrysler Phils. Labor Union, June 29, 2004)• Standards should be made known to the employee at the start of the

engagement otherwise, EE is deemed a regular employee from day one

• If no stipulation on probationary period, employment is deemed regular• An EE who is allowed to work after probationary period is considered a

regular employee

Probationary Employment (cont)• Exceptions to the period requirement:• Apprenticeship agreement• When the parties to an employment agreement agree

otherwise• When the same is established by company policy• When the same is required by the nature of work to be

performed

Probationary Employment (cont)

• DOUBLE OR SUCCESSIVE PROBATION NOT ALLOWED

• The evil sought to be prevented is to discourage scheming Ers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees (Holiday Inn Manila vs NLRC, September 14, 1993)

TERMINATION OF PROBATIONARY EMPLOYMENT• PROBATIONARY EE are protected by the security of

tenure provision of the constitution. However, a probationary employee may be terminated at any time before the expiration of the probationary period on two (2) grounds:

• 1. JUST CAUSE• 2. FAILURE TO MEET THE STANDARDS FOR

QUALIFICATIONS OF REGULAR EMPLOYMENT

• Nb: probationary ee is entitled to procedural due process

• The purpose of the probationary period is to allow the employer to make a determination regarding the employee’s ability to perform at a satisfactory level and to conform to acceptable norms of conduct. It is important to provide employees who are in their probationary period with training, guidance and counseling to assist them in reaching and maintaining a successful level of performance. It is also important to closely monitor the performance and conduct of probationary employees so that a determination can be made regarding conversion to permanent status.

• What are your responsibilities during a probationary period?

• You are responsible for communicating performance and conduct standards and expectations to the employee, monitoring their performance and conduct against those standards and providing timely feedback. In addition to ongoing oral and written feedback, the probationary employee should receive a performance evaluation. This is a formal, written evaluation based on the duties as described in the employee’s classification description, or in other instructions provided to the employee (i.e. departmental procedures, quantity/quality standards, etc.). An employee who is serving a six month probationary period would receive one evaluation after three months of service, and one as she/he approaches six months.