Casual, regular employees

Dear Atty. Vlad,

I am a waiter in a hotel in Sta. Rosa, Laguna. I was made to sign a Contract which states that my employment in the hotel will last for five months. I work from Tuesdays to Sundays and I was also not allowed to work for other hotels or establishments.

My contract was renewed four times and after that, the hotel manager did not renew my contract 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?

Gilbert

Dear Gilbert,

From the facts stated above, your contract with the hotel was continuously renewed four times, each contract having five-month tenure. All-in-all, you have been with the hotel for about 20 months or one year and eight months already.

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 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.

Considering your tenure with the hotel, you should already be considered a regular employee. The hotel’s resort to the continuous renewal of your employment contract is just a scheme to prevent you from attaining regular status.

You can go to the National Labor Relations Commission Regional Arbitration Branch 4 in Calamba, Laguna and file a complaint for regularization and illegal dismissal against your employer-hotel.

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

Atty. Vlad del Rosario