Contractual Employee Regularized by NLRC Decision
SEPS Online Tutorials is an English Language Tutorial Center that caters to Korean students seven (7) years old and above, employing (30) thirty tutors that teaches interactive communication. A complaint filed on December 3, 2012 against SEPS with Mr. Anthony Sales and Frauline Halupe in their capacities as Owner and Manager by Ms. Sharon Ruth M. Comila.
One of the tutors, Ms. Sharon Ruth M. Comila teaches from 2:30PM – 10:00PM with a salary of Php545 a day and like all the other employees, she is entitled to a salary increase of Php250 every 3 months.
As her teaching months progressed, Comila became aware of some SEPS regulation which employees find oppressive. These include: payment of Php500 fine for being absent; no pay for not attending Saturday trainings and paying Php5 every minute of late when they are required to be in the office (10) ten minutes before class.
Comila who had to attend to her graduate school studies on Saturdays, inquired from the Department of Labor and Employment (DOLE) on the propriety of obliging teachers to report for the Saturday training in order not to be issued a memo that they will receive no pay. DOLE advised her that it is not obligatory as her employment contract stated: “Teachers may also be provided with in-service training related to English Language as an additional benefit for the professional growth”.
These questionable policies would have been tolerable had it not been for the other violations – the non-remittance of employee contributions for the Social Security System (SSS) and Pag-ibig, the employee share of which were deducted each month from their salaries.
Sometime in September 2012, Comila inquired from SSS if her contributions were remitted. Much to her dismay, no such payments were made.
Comila’s inquiry with SSS led SEPS to be obliged in reporting its employees for SSS coverage on September 2012.
On October 10, 2012, Comila who has been teaching for (1) one year and (8) months was required to sign a contract to teach from October 10, 2012 to November 10, 2012. She was made to understand that should she refuse, her salary shall be withheld.
Meanwhile, as a result of Comila’s inquiry with Pag-ibig, on October 23, 2012, a Pag-ibig representative conducted a headcount of teachers in SEPS, thus, the school was again obliged to register for coverage.
On October 25, 2012, Comila received a memorandum dated October 24, 2012 with the subject “Notice of Non-renewal of Employment” stating the reasons: “failed evaluations, gross grammatical errors and involved in different issues in the company spreading rumors in the office”. There was no such evaluation attached.
On November 7, 2012, (2) two weeks after receiving a copy of the Notice of her non-renewal, Comila received from her Team Lead Celi Young, copies of her evaluation for the months September and October 2012 as accomplished by Frauline Halupe, then Assistant Manager. Comila’s evaluation zoomed bottom low from as high as 93% in October 2011 to her more recently issued evaluation, to 82% in September and October 2012. The said last two monthly evaluations were not communicated to her.
Comila was never questioned on her competence as a teacher for the (1) one year and (10) ten months of work that she has performed. In fact, she was given the most number of loads at any given period reaching up to 12-13 students each day, the highest number for a SEPS teacher.
Yet despite being a regular employee, Comila was not afforded due process to give her side, with the above-cited allegations as basis for her dismissal. The only notice she received was a memorandum that she will no longer be renewed which terminates her employment on November 30, 2012.
On the other side, SEPS responded stating that Comila was employed from July 11 to October 11, 2011; October 11, 2011 to January 10, 2012; January 11 to April 10, 2012; April 11 to July 10, 2012; July 11 to October 10, 2012; October 11 to November 10, 2012 and November 12 to 30, 2012. After her contract of employment expired and upon notice, she claims to have been illegally dismissed.
Has Comila attained the status of a regular employee?
If so, was she illegally dismissed to warrant the award of full backwages and reinstatement?
Is she entitled to her monetary claims?
Comila claims she has attained the regular status of an employee having been employed for more than a year performing duties and responsibilities necessary and desirable in the usual trade or business of SEPS.
On the other hand, SEPS claims that Comila’s stint is covered by a fixed term contract and that her employment is limited to the terms and conditions stipulated therein.
Article 280 of the Labor Code states that: “The provisions of written agreement to the contrary is not withstanding 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 and 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 engagement of the employee or where the work or service to be seasonal in nature and the employment is for the duration of the season.
Provided, that any employee who has rendered at least one 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”.
The circumstances obtained in this case are evident that Comila has reached the status of a regular employee.
Comila was engaged with SEPS teaching English Language to Korean students, where such duties are necessary and desirable to the usual business of SEPS being an English Tutorial Center.
While records show that Comila’s employment was covered by written fixed term contracts for a period of two months, it cannot be contradicted that several contracts of the same nature which if added together shows a cumulative and continuous period of more than (1) one year of service. Moreover, it is worth to give regard on the fact that each and every contract was renewed a day or two after its expiration.
Taking into account the bases taken by SEPS in deciding to renew Comila’s contract of employment, i.e. failed evaluation, allegation of gross grammatical error and involvement in different issues in the company spreading rumors in the office, the same cannot be given credence since these were just given to Comila after termination of her employment.
WHEREFORE, judgement rendered finding Comila as regular employee and illegally dismissed.
SEPS Online Tutorial was ordered to reinstate Comila to her former position with the status of a regular employee without loss of seniority rights and privileges. Comila should also be awarded full back wages amounting to Php59,950 with proportionate 13th month pay from the time she was not allowed to work up to the time of her reinstatement amounting to Php4,995.85; Moral and exemplary damages amounting to Php25,000 and Php20,000 respectively, the termination being whimsical, done in bad faith and oppressive to labor.
All other claims are dismissed for lack of merit.
This may or may not be controlling at the time of this writing.
Source: http://www.nlrc.dole.gov.ph/content/decision/ RAB-CAR-12-0289-12.pdf