LABOR LAW AND
MANAGEMENT IN THE
TOURISM ESTABLISHMENT
One of the most important laws which any industry
practitioners must know is the Labor Code. Companies must
know the said law to avoid legal disputes from among its
employees. In the same manner, employees of any tourism
establishments must be aware of this law in order to protect
them from any abuse and unlawful practices of employers and to
be able to assert their rights to benefits and security of tenure.
In this chapter, the different management rights, kinds of
employment, benefits, the just and authorized causes in
terminating employees and the procedural requirements before
termination will be discussed.
KINDS OF EMPLOYMENT
1. Regular Employment
2. Casual Employment
3. Project Employment
4. Seasonal Employment
5. Fixed-Period Employment
6. Probationary Employment
Who is a Regular Employee?
1. One who is engaged to perform activities that are either necessary or
desirable in the usual trade or business of the employer, regardless of the length
of service.
2. One who has rendered at least one year of service, whether continuous or
broken (continual), with respect to the activity in which they are employed. If the
employee has been performing the job for at least one year, even if the
performance is not continuous or merely intermittent, the law deems the repeated
and continuing need for its performance as sufficient evident of the necessity, if not
3. A casual employee who has rendered at least one year of service, Whether continuous
or broken, with respect to the activity in which he is employed.
4. In Article 281 of the Labor Code, an employee who is allowed to work after a
probationary period becomes a Regular Employee.
If any of the forgoing is present, the employee concerned attains the status of
regular employment. It is not the employment contract that determines
whether the employee is regular.
It is the Nature of the Activity that Determines whether Employment is Regular
or Casual
What determines whether a certain employment is regular or casual is not the will and
word of the employer, to which the desperate worker often accedes. It is the nature of the
activities performed in relation to the particular business or trades considering all
circumstances, and in some cases the length of time of its performance and its continued
existence.
CASUAL EMPLOYMENT
There is a casual employment where an employee is engaged to perform a
job, work or service which is merely incidental to the business of the
employer, and such job, work or service is for a definite period made known
to the employee at the time of the engagement; provided, that any employee
who has rendered at least one year of service, whether such service is
continuous or not, 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.
Casual Employee may be Regularized
Article 280 of the Labor Code of the Philippines states 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. Of course, a Casual Employee with less than one year of
PROJECT EMPLOYMENT
Project Employment contemplates on arrangement whereby the employment has been
fixed for a specific project or undertaking whose completion or termination has been
determined at the time of the engagement of the employee.
Two requirements, therefore, clearly need to be satisfied to remove the engagement from
the presumption of regularity of employment, namely:
1. Designation of a specific project or undertaking for which the employee is hired; and
2. Clear determination of the completion or termination of the project at the time of the
employee’s engagement.
The services of the project employees are legally and automatically terminated upon the
end or completion of the project as the employee’s services are coterminous with the
SEASONAL EMPLOYMENT
Seasonal Employment operates much in the same way as
project employment, albeit it involves work or service that is
seasonal in nature or lasting for the duration of the season. As
with project employment, although the seasonal employment
arrangement involves work that is seasonal or periodic in nature,
the employment itself is not automatically considered seasonal
so as to prevent the employee from attaining regular status.
To exclude the asserted “seasonal” employee from those classified as
regular employees, the employer must show that:
1. The employee must be performing work or services that are seasonal
in nature; and
2. He or she had been employed for the duration of the season.
FIXED-TERM EMPLOYMENT
- It is an employment with a fixed or definite period.
PROBATIONARY EMPLOYMENT
There is probationary employment where the employee upon his
engagement is made to undergo a trial period during which the
employer determines his fitness to qualify for regular employment
based on reasonable standards made known to him at the time of
engagement. The probationary employment is intended to afford
the employer an opportunity to observe the fitness of a
probationary employee while at work, and to ascertain whether he
will become an efficient and productive employee.
Period of Probationary Employment
- Generally, the probationary period of employ six (6) months. Is
limited to
Except:
1. When the parties to an employment contract may agree otherwise, such
as when the same is established by company policy.
2. When the same is required by the employee.”
Hotel’s System of Double Probation is not Allowed
The Hotel’s system of double probation is a transparent scheme to
circumvent the plain mandate of the law and make it easier for it to dismiss
its employees even after they shall have already passed probation.
Termination of Probationary Employee
The services of an employee who has been engaged on probationary
basis may be terminated for any of the following:
1. A just or
2. An authorized cause and
3. When he fails to qualify as a regular employee in accordance with
reasonable standards prescribed by the employer.
Employee Becomes Regular after Probationary Period
An employee who is allowed to work after a probationary
period shall be considered a regular employee.
MANAGEMENT PREROGATIVES
An employer is free to regulate, according to his own judgment
and discretion, all aspects of employment, including hiring,
work assignments, working methods, time, place and manner of
work, tools to be used, processes to be followed, supervision of
workers, working regulations, transfer of employees, worker
supervision, layoff of workers and the discipline, and dismissal
and recall of workers.
As a general proposition, an employer has free reign over every
aspect of its business, including the dismissal of his employees
as long as the exercise of its management prerogative is done
reasonably, in good faith, and in a manner not otherwise
intended to defeat or circumvent the rights of workers.
Termination by Employer: Just Cause in Terminating an
Employee
1. Serious misconduct or Insubordination
2. Gross and habitual neglect by the employee of his duties;
3. Fraud or willful breach by the employee of the trust reposed in him by
his employer or duly authorized representative;
4. Commission of a crime or offense by the employee against the person
of his employer or any immediate member of his family or his duly
authorized representatives; and
Serious Misconduct
A simple misconduct does not warrant the termination of the
employee. For serious misconduct to justify dismissal, the
following must be present:
It must be serious,
2. Must relate to the performance of the employee’s duties; and
1. 3. Must show that the employee has become unfit to continue working
for the employer.
Cases of Serious Misconduct
1. Assaulting a co-employee resulting in a fight between the two
employees during their duty inside the restaurant where they work.
2. An employee may be validly dismissed for violation of a
reasonable company rule or regulation adopted for the conduct
of the company’s business.
3. An employee who was caught using prohibited drugs within
the company premises.
Wilful (Willful) Disobedience of the Lawful Orders
One of the fundamental duties of an employee is to
obey all reasonable rules, orders and instructions of the
employer.
Gross Habitual and Neglect of Duties
Another ground for termination is Gross is Gross and
Habitual Neglect of duties. To be a ground for dismissal
under Article 282 of the Labor Code, it must be both
gross and habitual. Gross negligence implies want of
care in the performance of one’s duties. Habitual
neglect imparts repeated failure to perform one’s
duties for a period of time, depending on the
circumstances
Examples:
1. Habitual Tardiness
Fraud or Willful Breach by the Employee of the
Trust Reposed in Him or Loss of Trust and
Confidence
Article 282(c) of the Labor Code prescribes two
separate and distinct grounds for termination of
employment, namely: (1) fraud or (2) willful breach
by the employee of the trust reposed in him by his
employer or duly authorized representative.
Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives.
An employee may be terminated if an employee
committed a crime or offense against any of the
following:
a. His employer
b. Immediate member of the family of the employer or
c. Duly authorized representatives of the employer.
Other Analogous Causes
By implication, the enumerations in article 282 is not
exclusive. An employee therefore may be terminated to any
other cause aside from those mentioned in the said article
provided the act committed or the cause is similar or analogous
to any of the above mentioned causes.
Authorized Causes
19 Article 283 permits the employer to terminate the
employee even if the latter did not commit any wrongful act
provided any of the following circumstances are present:
1. Installation of labor saving device;
2. Redundancy;
4. Closure or cessation of business in good faith; and
5. In addition, Article 284 provides that an employer would be authorized to
terminate the services of an employee found Able to be suffering from any
disease if the employee’s continued 699 employment is prohibited by law or
is prejudicial to his health or to the health of his fellow employees.
Installation of Labor Saving Device (Automation)
The installation of labor-saving devices contemplates the installation of
machinery to effect economy and efficiency in its method of production.
Redundancy
Redundancy exists where the services of an employee are in excess
of what would reasonably be demanded by the actual requirements
of the enterprise
Retrenchment “Lay-off”
Retrenchment is the termination of employment initiated by
the employer through no fault of the employees and without
prejudice to the latter; resorted to by management during
periods of business recession; industrial depression; or
seasonal fluctuations, during lulls occasioned by lack of orders,
shortage of materials, conversion of the plant for a new
production program, or the introduction of new methods or
more efficient machinery or automation.
Closure or Cessation of Business in Good Faith
Closure of business is the reversal of fortune of the employer
whereby there is a complete cessation of or an actual locking-up of
the doors business operations and/ of the establishment, usually due
to financial losses. Closure of business, as an authorized cause for
termination of employment, aims to prevent further financial drain
upon an employer who can no longer pay his employees since
business has already stopped.
Disease as a Ground for Termination
Where the employee suffers from a disease and his continued
employment is prohibited by law or prejudicial to his health or to the
health of his co-employees, the employer shall not terminate his
employment unless there is a certification by a competent public
health authority that the disease is of such nature or at such a stage
that it cannot be cured within a period of six (6) months even with
Procedure to Terminate Employment
In order to validly dismiss an employee, it is
fundamental that the employer observes both substantive
and procedural due process. The termination of
employment must be based on a just or authorized cause
and the dismissal can only be effected, after due notice
and hearing.
Procedural Requirements if the Cause of Termination is
any of the Just Causes
Section 2, Rule XXII, Book V of the Omnibus Rules
Implementing the Labor Code provides that:
For termination of employment based on just causes as
defined 919 in Article 282 of the Labor Code:
(a) A written notice served on the employee specifying the ground or
grounds for termination, and giving the said employee reasonable
opportunity to explain his or her side;
(b) A hearing or conference during which the employee concerned, with
the assistance of counsel if the employee so desires, is given opportunity
to respond to the charge, present his evidence, or rebut the evidence
presented bon against him; and
(c) A written notice of termination served on the employee indicating that
upon due consideration of all the circumstances;, grounds have been
established to justify his termination.
Procedural Requirements if the Cause of Termination is
any of the Authorized Causes
If the cause of termination of employee is due to
authorized causes the Employer must:
1. Serve a written notice on the workers at least one (1) month
before the intended date of termination; and
2. Serve a copy of the written notice of termination to the
Department of Labor and Employment
Normal Hours and Overtime Work
Generally the normal hours of work of any employee shall
not exceed eight (8) hours a day
Overtime Work
Work may be performed beyond eight (8) hours a day provided
that the employee is paid for the overtime work, an additional
compensation equivalent to his regular wage plus at least
twenty- five percent (25%) thereof. Work performed beyond
eight hours on a holiday or rest day shall be paid an additional
compensation equivalent to the rate of the first eight hours on
a holiday or rest day plus at least thirty percent (30%) thereof.
Under Time Cannot be Offset by Overtime
Under time work on any particular day shall not be offset by overtime
work on any other day.
Night Shift Differential Pay
Every employee shall be paid a night shift differential of not
less than ten percent (10%) of his regular wage for each hour of
work performed between ten o’clock in the evening and six
o’clock in the morning
Holiday Pay
Every worker shall be paid his or her regular daily wage
during regular holidays, except in retail and service
establishments regularly employing less than ten (10) workers.
Double Pay
If the employee works on the said regular holidays he or she shall be
entitled to one hundred percent (100%) basic pay and an additional 100%
for working during Regular Holiday.
Special Holidays
Unless otherwise modified by law, order, or proclamation, the following
are the three (3) special days in a year under Executive Order No. 292, as
amended by Republic Act 9849 that shall be observed in the Philippines:
1. Ninoy Aquino Day Monday (nearest August 21)
2. All Saints Day (November 1)
3. Last Day of the Year (December 3)
If an employee does not work during special holiday, he or she is not entitled to any
payment.
Payment for Work Performed during Special Holidays
Work performed on special holiday merits additional compensation of at
least thirty percent (30%) of the basic pay or a total of one hundred thirty
percent (130%).
If performed during special holiday and at the same time rest day, he or
she shall be entitled to 150%.
Right to Weekly Rest Day
It shall be the duty of every employer, whether operating for
profit or not, to provide each of his employees a rest period of not
less than twenty-four (24) consecutive hours after every six (6)
consecutive normal work days.
Compensation for Rest Day
If the employee is made or permitted to work during
his rest day, the employer must pay the employee his
regular daily wage (100%) and an additional sum of at
least 30% of the regular daily wage. In other words, the
pay for rest day is 130% of the pay for ordinary days.
Republic Act No. 7877, Sexual Harassment Act
The law penalizing sexual harassment in our jurisdiction is
RA 7877. Section 3 thereof defines work-related sexual
harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual Harassment Defined. –
Work, education or training-related sexual harassment is committed by an employer,
manager, supervisor, agent of the employer, teacher, instructor, professor, coach,
trainor, or any other person who, having authority, influence or moral ascendancy
over another in a work or training or education environment, demands, requests or
otherwise requires any sexual favor from the other, regardless of whether the
demand, request or requirement for submission is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual harassment is
committed when:
(1) The sexual favor is made as a condition in the hiring or in the employment,
re-employment or continued employment of said individual, or in granting said
individual favorable compensation, terms, conditions, promotions, or privileges
(2) The above acts would impair the employee’s rights or
privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or
offensive environment for the employee.
The Demands, Requests for Sexual Favour of Superior
Need not be Expressed
It is true that this provision calls for a “demand, request or
requirement of a sexual favor.” But, it is not necessary that the
demand, request or requirement of a sexual favor be articulated
in a categorical oral or written statement. It may be discerned,
with equal certitude, from the acts of the offender.
Duty of the Employer
It shall be the duty of the employer or the head of
the work- related, educational or training environment
or institution, to prevent or deter the commission of
acts of sexual harassment; and to provide the
procedures for the resolution, settlement or prosecution
of acts of sexual harassment.
Liability of the Employer if No Action is Taken
The employer or head of office, and educational
training institution shall be solidarily liable for damage
arising from the acts of sexual harassment committed in the
employment, education or training environment if the employer
THANK YOU!
GROUP 7
ACEDILLA, LOVELY MONICA
BRETENIA, IVY GEN
MESA, JENMARIE
SACRO, CHRISTIAN JARED
MINOSA, FLORABELLE
