Four-fold test to determine there is a employer-employee relationship The test calls for the determination of (1) whether the

alleged employer has the power of selection and engagement of an employee; (2) whether he has control of the employee with respect to the means and methods by which work is to be accomplished; (3) whether he has the power to dismiss; and (4) whether the employee was paid wages.

Of the four, the control test is the most important element. ART. 280, Labor Code: Regular and Casual Employment. The provisions of written agreement to the contrary notwithstanding 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 or desirable in the usual business of 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 performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (c) An employee who is allowed to work after a probationary period shall be considered a regular employee.

ART. 281, Labor Code: Probationary Employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis as may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

The act of hiring and re-hiring workers over a period of time without considering them as regular employees evidences bad faith on the part of the employer. Where, from the circumstances, it is apparent that periods have been imposed to preclude the acquisition of tenurial security by the employee, the policy, agreement or practice should be struck down as contrary to public policy, morals, good customs or public order. In point of law, any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall be liable for the damage.

Just Causes Under the Labor Code

Just causes for termination under the Labor Code is found in Article 282 and enumerated here as follows: 1. Serious misconduct. Serious misconduct is an improper conduct willful in character and of such grave nature that transgressed some established and definite rule of action in relation to the employees work. 2. Willful disobedience to lawful orders. The employees are bound to follow reasonable and lawful orders of the employer which are in connection with their work. Failure to do so may be a ground for dismissal or other disciplinary action. 3. Gross and habitual neglect of duties. Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. 4. Fraud or willful breach of trust / Loss of confidence. Fraud is any act, omission, or concealment which involves a breach of legal duty, trust, or confidence justly reposed and is injurious to another. 5. Commission of a crime or offense. Commission of a crime or offense by the employee against his employer or any immediate member of his family or his duly authorized representative, is a just cause for termination of employment. 6. Analogous causes. Other causes analogous to the above grounds may also be a just cause for termination of employment. Examples of Analogous Causes 1. Abandonment. Abandonment of job is a form of neglect of duty. There is abandonment when the employee leave his job or position with a clear and deliberate intent to discontinue his employment without any intention of returning back. 2. Gross inefficiency. Gross inefficiency is analogous to and closely related to gross neglect for both involve acts or omissions on the part of the employee resulting in damage to the employer or to his business. (See Lim vs. NLRC, G.R. No. 118434, July 26, 1996.) 3. Disloyalty/conflict of interest. Disloyalty exists when one asserts an interest, or performs acts adverse to ones employer, such as secretly engaging in a business which renders him a competitor and rival of his employer. It constitutes a breach of an implied condition of the contract of employment. (See Elizalde International vs. Court of Appeals, G.R. No. L40553 February 26, 1981.) 4. Dishonesty. Acts of dishonesty deemed to be patently inimical to the employer is analogous to breach of trust and is a valid cause for termination of employment. No Separation Pay An employee who is terminated from employment for a just cause is not entitled to payment of separation benefits. Section 7, Rule I, Book VI, of the Omnibus Rules Implementing the Labor Code provides:

Sec. 7. Termination of employment by employer. The just causes for terminating the services of an employee shall be those provided in Article 282 of the Code. The separation from work of an employee for a just cause does not entitle him to the termination pay provided in Code, without prejudice, however, to whatever rights, benefits and privileges he may have under the applicable individual or collective bargaining agreement with the employer or voluntary employer policy or practice.