GOMA V. PAMPLONA (LABOR)

Article 280 of the Labor Code, as amended, provides:

ARTICLE 280. REGULAR AND CASUAL EMPLOYMENT - The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be REGULAR where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagements of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be CASUAL if it is not covered by the preceding paragraph: Provided, any employee who has rendered at least 1 year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

Simply stated, REGULAR EMPLOYEES are classified into: regular employees by nature of work; and regular employees by years of service.

Respondent is engaged in the management of the Pamplona Plantation as well as in the operation of tourist resorts, hotels, inns, etc. Petitioner, on the other hand, was engaged to perform carpentry work. His services were needed for a period of 2 years until such time that the respondent decided not to give him work assignment anymore. Owing to his length of service, petitioner because a regular employee, by operation of law.

Respondent argues that even assuming that petitioner can be considered an employee, he cannot be classified as a regular employee, but merely as a project employee whose services were hired only with respect to a specific job and only while that specific job existed.

A PROJECT EMPLOYEE is assigned to carry out a special project or undertaking the duration and scope of which are specified at the time the employee is engaged in the project. A project is a job or undertaking which is distinct, separate, and identifiable from the usual or regular undertakings of the company. A project employee is assigned to a project which begins and ends at determined or determinable times.

The principal test used to determine whether employees are project employees as distinguished from regular employees, is whether or not the employees were assigned to carry out a specific project or undertaking, the duration or scope of which was specified at the time the employees were engaged for the project. In this case, apart from respondent's base allegation that petitioner was a project employee, it had not shown that petitioner was informed that he would be assigned to a specific project or undertaking. Neither was it established that he was informed of the duration and scope of such project or undertaking at the time of his engagement.

More important of all, based on the records, respondent did not report the termination of petitioner's supposed project employment to the DOLE. Department Order No. 19 requires employers to submit a report of any employee's termination tot eh nearest public employment office everytime the employment is terminated due to a completion of a project. Respondent's failure to file termination reports, particularly on the cessation of petitioner's employment, was an indication that the petitioner was not a project, but a regular employee.

As to the question of whether petitioner was illegally dismissed, we answer in the affirmative.

Well established is the rule that regular employees enjoy SECURITY OF TENURE and they can only be dismissed for just cause and with due process, i.e., after notice and hearing. In cases involving an employee's dismissal, the burden is on the employer to prove that the dismissal was legal. This burden was not amply discharged by the respondent in this case.

Obviously, petitioner's dismissal was not based on any of the just or authorized causes enumerated under the Labor Code. After working for the respondent for a period of 2 years, petitioner was shocked to find out that he was not given any work assignment anymore. Hence, the requirement of substantive due process was not complied with.

Apart from the requirement that the dismissal of an employee be based on any of the just or authorized causes, the procedure laid down in the Implementing Rules must be followed. Failure to observe the rules is a violation of the employee's right to procedural due process.

In view of the non-observance of both substantive and procedural due process, in accordance with the guidelines outlined by this Court in Agabon v. NLRC, we declare that petitioner's dismissal form the employment is illegal.

Having shown that petitioner is a regular employee and that his dismissal was illegal, we now discuss the propriety of the monetary claims of the petitioner. An illegally dismissed employee is entitled to: (1) either reinstatement, if viable, or separation pay if reinstatement is no longer viable; and (2) backwages.

In the instant case, we are prepared to concede the impossibility of the reinstatement of petitioner considering that his position or any equivalent position may no longer be available in view of the length of time that this case has been pending. Moreover, the protracted litigation may have seriously abraded the relationship of the parties so as to render reinstatement impractical. Accordingly, petitioner may be awarded separation pay in lieu of reinstatement.