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Monday, May 12, 2014
You have been hired and made to sign a contract stating you are a project employee, but you have been working indefinitely with the company. Are you considered a project employee so that the company may terminate your employment citing end-of-project or season, and without need for just or authorized cause?
The case below discusses the determining factors
for a project employee, and how one who started as a project employee may
eventually become a regular employee.
Duration of project employment
should be determined at the time of
In the instant case, the
appointments issued to petitioner indicated that he was hired for specific
projects. This Court is convinced however that although he started as a project
employee, he eventually became a regular employee of PNCC.
Under Article 280 of the
Labor Code, as amended, a project employee is one whose
"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 services to be performed is
seasonal in nature and the employment is for the duration of the season."
Thus, the principal test used to determine whether employees are project
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 that project.33
In the case at bar,
petitioner worked continuously for more than two years after the supposed
three-month duration of his project employment for the NAIA II Project. While
his appointment for said project allowed such extension since it specifically
provided that in case his "services are still needed beyond the validity
of the contract, the Company shall extend his services," there was no
subsequent contract or appointment that specified a particular duration for the
extension. His services were just extended indefinitely until "Personnel
Action Form – Project Employment" dated July 7, 1998 was issued to him which
provided that his employment will end a few weeks later or on August 4, 1998.
While for first three months, petitioner can be considered a project employee
of PNCC, his employment thereafter, when his services were extended without any
specification of as to the duration, made him a regular employee of PNCC. And
his status as a regular employee was not affected by the fact that he was
assigned to several other projects and there were intervals in between said
projects since he enjoys security of tenure.
Failure of an employer to file
termination reports after every
project completion proves that an
employee is not a project employee
As a rule, the findings
of fact of the CA are final and conclusive and this Court will not review them
on appeal.34 The rule, however, is subject to the
The jurisdiction of the
Court in cases brought before it from the appellate court is limited to
reviewing errors of law, and findings of fact of the Court of Appeals are
conclusive upon the Court since it is not the Court’s function to analyze and
weigh the evidence all over again. Nevertheless, in several cases, the Court
enumerated the exceptions to the rule that factual findings of the Court of
Appeals are binding on the Court: (1) when the findings are grounded entirely
on speculations, surmises or conjectures; (2) when the inference made is
manifestly mistaken, absurd or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5)
when the findings of fact are conflicting; (6) when in making its findings the
Court of Appeals went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee; (7) when the
findings are contrary to that of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioner’s main
and reply briefs are not disputed by the respondent; (10) when the findings of
fact are premised on the supposed absence of evidence and contradicted by the
evidence on record; or (11) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.35
In this case, records clearly
show that PNCC did not report the termination of petitioner’s supposed project
employment for the NAIA II Project to the DOLE. Department Order No. 19, or the
"Guidelines Governing the Employment of Workers in the Construction
Industry," requires employers to submit a report of an employee’s
termination to the nearest public employment office every time an employee’s
employment is terminated due to a completion of a project. PNCC submitted as
evidence of its compliance with the requirement supposed photocopies of its
termination reports, each listing petitioner as among the employees affected.
Unfortunately, none of the reports submitted pertain to the NAIA II Project.
Moreover, DOLE NCR verified that petitioner is not included in the list of
affected workers based on the termination reports filed by PNCC on August 11,
17, 20 and 24, 1998 for petitioner’s supposed dismissal from the NAIA II
Project effective August 4, 1998. This certification from DOLE was not refuted
by PNCC. In Tomas Lao Construction v. NLRC,36 we emphasized the indispensability of the
Moreover, if private
respondents were indeed employed as "project employees," petitioners
should have submitted a report of termination to the nearest public employment
office every time their employment was terminated due to completion of each
construction project. The records show that they did not. Policy Instruction
No. 20 is explicit that employers of project employees are exempted from the
clearance requirement but not from the submission of termination report. We
have consistently held that failure of the employer to file termination reports
after every project completion proves that the employees are not project
employees. Nowhere in the New Labor Code is it provided that the reportorial
requirement is dispensed with. The fact is that Department Order No. 19
superseding Policy Instruction No. 20 expressly provides that the report of
termination is one of the indicators of project employment.37