Regular reliever

When is an employment deemed regular? Is an employee who has rendered at least one year of service even though intermittent, deemed a regular employee? These are the issues resolved in this case of Lani, a duly registered nurse.

On December 11, 1993, Lani started employment as a reliever nurse in a hotel (MP hotel) that operates a clinic 24 hours a day with three regular nurses who work eight hours a day on three separate shifts. Reliever nurses like Lani substitute for regular nurses who are either off duty or absent. So in the case of Lani, she also found time to work in a hospital, although from the time of her employment at MP hotel, she had been performing the usual tasks and functions of a regular nurse.

Hence after four years of employment in the hotel, Lani inquired why she was not receiving her 13th month pay. In response, the hotel manager (GM) and the human resources manager (HRM) required her to submit a summary of her tour of duty for 1997. After she had submitted the said summary, Lani was paid P8,000 as her 13th month pay for 1997. She also requested for the payment of her 13th month pay for 1993 to 1996, but her request was denied.

On December 18, 1998, Lani was informed by a fellow nurse that she can only report for work after meeting up with the HRM. When Lani met the HRM on December 21, 1998, she was asked why she wanted to get copies of her pay slip vouchers. She told the HRM that she made copies of her payslip vouchers because the hotel does not give her copies of the same. The HRM was peeved with Lani’s response because she was allegedly not entitled to get copies of her payslip vouchers. So the HRM told Lani not to report for work anymore.

Aggrieved, Lani filed a complaint for illegal dismissal against the hotel, its GM and HRM. After due proceedings, the Labor Arbiter (LA) dismissed her complaint but ordered the hotel to pay her P20,000 separation pay. The NLRC not only affirmed this ruling but it even deleted the payment of the separation pay.

On further appeal to the Court of Appeals (CA), the latter reversed and set aside the NLRC decision. The CA said that the LA and NLRC’s conclusion that Lani was not a regular employee and that she was validly dismissed are not supported by law and evidence on record. Hence the CA ordered the MP hotel to reinstate Lani as regular staff nurse without loss of seniority rights and to pay her full backwages from December 12, 1994 up to the time of her actual reinstatement plus P30,000 moral damages, P20,000 exemplary damages and 10% attorney’s fees. Was the CA correct?

Yes. An employment is deemed regular when the activities performed by the employee are usually necessary or desirable in the usual business of the employer. However any employee who has rendered at least one year of service, even though intermittent, is deemed regular with respect to the activity in which he is employed and while such activity actually exists.

In this case, Lani’s services were engaged by the hotel intermittently from 1993 up to 1998. Her services as a reliever nurse were undoubtedly necessary and desirable in the hotel’s business of providing comfortable accommodation to its guests. In any case since she had rendered more than one year of intermittent service as a reliever nurse at the hotel, she had become a regular employee as early as December 12, 1994. In fact, per hotel’s own certification dated April 22, 1997, she was already a “regular staff nurse” until her dismissal.

Being a regular employee, her services may be terminated only for causes provided in Article 282 of the Labor Code and after an opportunity to be heard and defend herself.

In this case, the hotel and its GM and HRM failed to observe the twin requisites for valid termination. She was dismissed for alleged serious misconduct due to her act of obtaining copies of payslip. Such act however cannot be characterized as a misconduct, much less a grave misconduct. On the contrary it was incumbent upon the hotel, as her employer, to give her copies of her payslip as a matter of course. So it is absurd that she had to resort to her own resourcefulness to get hold of these documents. Clearly her  dismissal was not based on a just cause. Misconduct is any forbidden act or dereliction of duty, willful in character and implies a wrongful intent, not a mere error of judgment.

Lani was not also afforded an opportunity to be heard and to defend herself. When the HRM had a meeting with her, she was not informed that the hotel was contemplating her dismissal. Neither was she informed of the ground for which her dismissal was sought. She was simply told right there and then that she was already dismissed. Thus she was likewise deprived of procedural due process.

Since her dismissal was attended with bad faith or was done in a manner contrary to good customs, the award of moral and exemplary damages is proper but they should be reduced to P15,000 and P10,000 respectively. Attorney’s fees of 10% should also be paid (Peninsula Manila et. al. vs. Alipio, G.R. 167310, June 17, 2008) 

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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