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[av_heading heading=’ABOVE THE LAW ‘ tag=’h3′ style=’blockquote modern-quote’ size=” subheading_active=’subheading_below’ subheading_size=’15’ padding=’10’ color=” custom_font=”]
BY AYIN DREAM D. APLASCA
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The unemployment contract
OF COURSE, there is no such thing as an “unemployment contract.” But what made me think about this was the situation of Manong Berting.
He was a delivery van driver. He was working in a manufacturing company. He was assigned in delivering and distributing goods to out-of-town retailers. Together with him was his partner, the sales representative. His work required him to travel from north to south of Panay Island. There were also times he was assigned in Guimaras Island.
His life was initially fine. One day, however, he received a text message from his area manager that he was no longer required to report to the office. His services as a delivery van driver already ended. There were no notices or any chances given to him to know why he was dismissed from work. He wasn’t given the chance to explain his side. Worst, the company denied him as its regular employee with nothing to bring home as benefits and separation pay.
According to his area manager, he was not an employee of the company, rather that of the sales representative. The company argued that he was just a project employee, someone who had a temporary employment status. He worked in the said company for more than five years. Imagine?
It was heartbreaking. He should be protected from arbitrary denial of his job. I see three issues in Manong Berting’s case that need to be resolved.
First, the company denied him as its regular employee. This means that between him and the company there was no employer-employee relationship. What do we mean by this? Landmark cases relating to Labor Law provides that in determining whether there is an employer-employee relationship, the following must be considered: (a) selection and hiring; (b) wages; (c) removal; and (d) control. Of these powers, the power of control over the employee’s conduct is generally regarded as the determinative of the existence of an employer-employee relationship.
All of these were present in the case of Manong Berting. He was hired a task that was primarily connected to the nature of the business of the company.
Second, the company denied him his right to due process of law. There should be compliance of the twin-rule requirement – notice and hearing. The employee should be notified especially of the reasons why the employer wants to dismiss him. The former should be given the chance to speak out why he should not be dismissed or his justifications on the ground for his dismissal. Without this twin-rule requirement, the employer may be held liable for illegal dismissal.
Lastly, the company, assuming Manong Berting was its employee, considered him as a project employee only. This means that his contract of employment was only good for a fixed period of time depending on a specific project or undertaking. The fixed period for which he was hired for was simply fixed in the employment contract without reference or connection to the period required for the completion of a project. He cannot be considered project employee considering that his employment was not coterminous with any project or undertaking, the termination of which was predetermined.
Do you know that feeling that when a person has no possessions, his job may possibly be his only means of livelihood? Such case of Manong Berting is very much offensive to the basic principle in Labor Law. I hope he will find a way out to resolve this.
(Atty. Ayin Dream D. Aplasca practices her profession in Iloilo City. She may be reached thru ayindream.aplasca@gmail.com/PN)
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