QUESTION:
In general, what law governs the probationary employment of teachers in private schools or higher educational institutions (HEIs)?
ANSWER:
According to Policy Instructions No. 11 issued by the Department of Labor and Employment, "the probationary employment of professors, instructors and teachers shall be subject to standards established by the Department of Education and Culture". Said standards are embodied in Section 75 (now section 93) of the Manual of Regulations for Private Schools, to wit:
“75. Full time teachers who have rendered three consecutive years of satisfactory service shall be considered permanent. (Emphasis supplied)
The legal requisites, therefore, for acquisition by a teacher of permanent employment, of security of tenure, are as follows:
1) the teacher is a full time teacher;
2) The teacher must have rendered three consecutive years of service; and
3) such service must have been satisfactory.
Now, the Manual of Regulations also states that "a full-time teacher" is "one whose total working day is devoted to the school, has no other regular remunerative employment and is paid on a regular monthly basis regardless of the number of teaching hours" (par 77); and that in college, the normal teaching load of a full-time instructor shall be eighteen hours a week. (University of Santo Tomas, et al. v. National Labor Relations Commission, et al., 182 SCRA 371, 376-377, February 15, 1990)
Further, under DOLE-DECS-CHED-TESDA Order No. 1, s. 1996 (February 7, 1996), the college teacher must possess “at least a master’s degree.”
QUESTION:
While the Manual of Regulations for Private Schools (MRPS) requires “three consecutive years of satisfactory service,” for a private school teacher to acquire permanency, may this 3-year probationary period be lowered?
ANSWER:
YES. The law (Art. 281, Labor Code) does not prohibit the parties from lowering the probationary period of three years. The “…parties to an employment contract (may) agree otherwise…” (Buiser vs. Leogardo, G.R. No. L-63316, July 13, 1984)
The lowering of the probationary period is that which is provided in the COLLECTIVE BARGAINING AGREEMENT (CBA) between the employer and the employees union. So, it is perfectly all right if the CBA will provide for two (2) years probationary period.
QUESTION:
After rendering (2) consecutive semesters or two years as provided in the CBA, will the probationary teacher AUTOMATICALLY acquire permanent status?
ANSWER:
In the case of Cagayan Capitol College vs. NLRC (G.R. Nos. 90010-11, Sept. 14, 1990), the Supreme Court held that “upon the termination of the three-year probationary period (under Section 93, Manual of Regulations for Private Schools), the teacher becomes permanent…on the compliance with the third requisite that the services of said teacher during the probationary period was satisfactory.”
Applying the same principle with respect to a CBA probationary period (for example, two years), the teacher becomes permanent after rendering the two-year probationary period if the services of the teacher was also satisfactory based on his/her evaluation ratings.
To allow the employer to refuse to make the teacher permanent after finishing the probationary period of satisfactory performance, would make the teacher contractual forever. The Supreme Court said:
“It is noteworthy that 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 trade considering all circumstances, and in some cases the length of time of its performance and its continued existence.” (De Leon v. National Labor Relations Commission, G.R. No. 70705, August 21, 1989. 176 SCRA 615, 620-621)
In another case, the Supreme held the dismissal of an employee after the expiration of his contract as illegal because he has already satisfied the probationary period provided by law. This is the case of A. Bongar vs. NLRC and AMA Computer College, G.R No. 107234, 24 August 1998, where the Supreme Court held:
“It must be noted that the principal cause of the petitioner’s dismissal was the alleged expiration of his teaching contract. This contention, however, is negated by the fact that petitioner, as the record shows, had rendered service for nearly four (4) years. AMA’s contention that petitioner could not qualify as a regular employee for failure to comply with the three-year service rule is likewise unavailing. On this point, we concur with the opinion laid down by the NLRC, to wit:
“If this line of reasoning (which we perceive to be too technical to serve the ends of justice) is adopted in the process of determining the regularity of a teacher’s employment, the possibility of a teacher becoming infinitely non-regular is not too far-fetched to expect. For all that unscrupulous school has to do to negate or render meaningless the rule on probationary employment, is to inflexibly confine the recruitment or employment of its teachers to part-time basis, or to revert as what happened to the complainant herein, an originally full-time status to mere part-time bases to prevent in any way the incumbent teacher from becoming regular, a subtle way of circumventing the Labor Code provisions on probationary employment.” (underscoring supplied)
In Kimberly Independent Labor Union for Solidarity (KILUS) vs. Drilon and KILUS vs. NLRC (GR. No. 77629; G.R. No. 78791, May 9, 1990), the Supreme Court held that a casual employee with one year of service of service becomes regular:
“As long as the employee has rendered at least one year of service, he becomes a regular employee with respect to the activity in which he is employed. The law does not provide the qualification that the employee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. Obviously, where the law does not distinguish, no distinction should be drawn.”
In Zosimo Cielo vs. NLRC (GR No. 78693, January 28, 1991), Zosimo Cielo, a truck driver, was employed by Henry Lei Trucking Company. He signed a contract of employment where one of the stipulations was:
“1. That the term of this Agreement is six (6) months from and after the execution thereof, unless otherwise earlier terminated at the option of either party.”
After rendering service from June 30, 1984 to end on December 31, 1984, Zosimo was formally notified of the termination of his services on the ground of expiration of his contract. When Zosimo filed a case with the then Ministry of Labor, the trucking company argued that the contract having expired, it was the prerogative of the trucking company to renew it or not as it saw fit.
But the Supreme Court held:
“The private respondent’s intention is obvious. It is remarkable that neither the NLRC nor the Solicitor General recognized. There is no question that the purpose behind these individual contracts was to evade the application of the labor laws by making it appear that the drivers of the trucking company were not its regular employees.
Under these circumstances, the private respondent hoped to be able to terminate the services of the drivers without the inhibitions of the Labor Code. All it had to do was refuse to renew the agreements, which significantly, were uniformly limited to a six-month period. No cause had to be established because such renewal was subject to the discretion of the parties. In fact, the private respondent did not even have to wait for the expiration of the contract as it was there provided that it could be “earlier terminated at the option of either party.”
By this clever scheme, the private respondent could also prevent the drivers from becoming regular employees and thus be entitled to security of tenure and other benefits, such a as minimum wage, cost-of-living allowances, vacation and sick leaves, holiday pay, and other statutory requirements.”
This pattern of harassment employed by employers has not escaped the attention of C.A Azucena, Jr., a respected labor lawyer and author, who commented:
“ x x x in the great preponderance of cases, the employer’s efforts (of harassment) are much more covert (or hidden) and are generally disguised to escape detection.” (The Labor Code with Comments and Cases, Azucena, 1996, p. 209)
QUESTION:
In SLU, if a teacher has just finished the mandated two-year probationary period and is due for permanency, may the university hire NEW contractuals instead of making the teacher permanent or regular?
ANSWER:
NO. The contractual employee “shall be given priority in case a regular position is available.” [Art. 7, Section 7.13 (a), CBA]. Hence, the university should not hire NEW contractuals.
QUESTION:
In SLU, what is being done to solve this problem?
ANSWER:
This issue has been brought before the attention of the SLU Administration. However, the SLU Administration believes that when the teacher finishes his/her probationary period (two years) with satisfactory performance based on the yearly evaluation, the teacher does not automatically become permanent. The SLU still maintains that it has the management prerogative whether to make the teacher permanent or not. That is why until now, there are many teachers in SLU who have rendered more than two years but are still contractual.
There are now two pending cases before the National Labor Relations Commission (NLRC) to determine the legality of the argument of SLU. One case (where the teacher rendered 3 consecutive years) was decided in favor the employee, that is why the employee is now reinstated. The other case, where the teacher has rendered two consecutive years, is still pending.
In general, what law governs the probationary employment of teachers in private schools or higher educational institutions (HEIs)?
ANSWER:
According to Policy Instructions No. 11 issued by the Department of Labor and Employment, "the probationary employment of professors, instructors and teachers shall be subject to standards established by the Department of Education and Culture". Said standards are embodied in Section 75 (now section 93) of the Manual of Regulations for Private Schools, to wit:
“75. Full time teachers who have rendered three consecutive years of satisfactory service shall be considered permanent. (Emphasis supplied)
The legal requisites, therefore, for acquisition by a teacher of permanent employment, of security of tenure, are as follows:
1) the teacher is a full time teacher;
2) The teacher must have rendered three consecutive years of service; and
3) such service must have been satisfactory.
Now, the Manual of Regulations also states that "a full-time teacher" is "one whose total working day is devoted to the school, has no other regular remunerative employment and is paid on a regular monthly basis regardless of the number of teaching hours" (par 77); and that in college, the normal teaching load of a full-time instructor shall be eighteen hours a week. (University of Santo Tomas, et al. v. National Labor Relations Commission, et al., 182 SCRA 371, 376-377, February 15, 1990)
Further, under DOLE-DECS-CHED-TESDA Order No. 1, s. 1996 (February 7, 1996), the college teacher must possess “at least a master’s degree.”
QUESTION:
While the Manual of Regulations for Private Schools (MRPS) requires “three consecutive years of satisfactory service,” for a private school teacher to acquire permanency, may this 3-year probationary period be lowered?
ANSWER:
YES. The law (Art. 281, Labor Code) does not prohibit the parties from lowering the probationary period of three years. The “…parties to an employment contract (may) agree otherwise…” (Buiser vs. Leogardo, G.R. No. L-63316, July 13, 1984)
The lowering of the probationary period is that which is provided in the COLLECTIVE BARGAINING AGREEMENT (CBA) between the employer and the employees union. So, it is perfectly all right if the CBA will provide for two (2) years probationary period.
QUESTION:
After rendering (2) consecutive semesters or two years as provided in the CBA, will the probationary teacher AUTOMATICALLY acquire permanent status?
ANSWER:
In the case of Cagayan Capitol College vs. NLRC (G.R. Nos. 90010-11, Sept. 14, 1990), the Supreme Court held that “upon the termination of the three-year probationary period (under Section 93, Manual of Regulations for Private Schools), the teacher becomes permanent…on the compliance with the third requisite that the services of said teacher during the probationary period was satisfactory.”
Applying the same principle with respect to a CBA probationary period (for example, two years), the teacher becomes permanent after rendering the two-year probationary period if the services of the teacher was also satisfactory based on his/her evaluation ratings.
To allow the employer to refuse to make the teacher permanent after finishing the probationary period of satisfactory performance, would make the teacher contractual forever. The Supreme Court said:
“It is noteworthy that 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 trade considering all circumstances, and in some cases the length of time of its performance and its continued existence.” (De Leon v. National Labor Relations Commission, G.R. No. 70705, August 21, 1989. 176 SCRA 615, 620-621)
In another case, the Supreme held the dismissal of an employee after the expiration of his contract as illegal because he has already satisfied the probationary period provided by law. This is the case of A. Bongar vs. NLRC and AMA Computer College, G.R No. 107234, 24 August 1998, where the Supreme Court held:
“It must be noted that the principal cause of the petitioner’s dismissal was the alleged expiration of his teaching contract. This contention, however, is negated by the fact that petitioner, as the record shows, had rendered service for nearly four (4) years. AMA’s contention that petitioner could not qualify as a regular employee for failure to comply with the three-year service rule is likewise unavailing. On this point, we concur with the opinion laid down by the NLRC, to wit:
“If this line of reasoning (which we perceive to be too technical to serve the ends of justice) is adopted in the process of determining the regularity of a teacher’s employment, the possibility of a teacher becoming infinitely non-regular is not too far-fetched to expect. For all that unscrupulous school has to do to negate or render meaningless the rule on probationary employment, is to inflexibly confine the recruitment or employment of its teachers to part-time basis, or to revert as what happened to the complainant herein, an originally full-time status to mere part-time bases to prevent in any way the incumbent teacher from becoming regular, a subtle way of circumventing the Labor Code provisions on probationary employment.” (underscoring supplied)
In Kimberly Independent Labor Union for Solidarity (KILUS) vs. Drilon and KILUS vs. NLRC (GR. No. 77629; G.R. No. 78791, May 9, 1990), the Supreme Court held that a casual employee with one year of service of service becomes regular:
“As long as the employee has rendered at least one year of service, he becomes a regular employee with respect to the activity in which he is employed. The law does not provide the qualification that the employee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. Obviously, where the law does not distinguish, no distinction should be drawn.”
In Zosimo Cielo vs. NLRC (GR No. 78693, January 28, 1991), Zosimo Cielo, a truck driver, was employed by Henry Lei Trucking Company. He signed a contract of employment where one of the stipulations was:
“1. That the term of this Agreement is six (6) months from and after the execution thereof, unless otherwise earlier terminated at the option of either party.”
After rendering service from June 30, 1984 to end on December 31, 1984, Zosimo was formally notified of the termination of his services on the ground of expiration of his contract. When Zosimo filed a case with the then Ministry of Labor, the trucking company argued that the contract having expired, it was the prerogative of the trucking company to renew it or not as it saw fit.
But the Supreme Court held:
“The private respondent’s intention is obvious. It is remarkable that neither the NLRC nor the Solicitor General recognized. There is no question that the purpose behind these individual contracts was to evade the application of the labor laws by making it appear that the drivers of the trucking company were not its regular employees.
Under these circumstances, the private respondent hoped to be able to terminate the services of the drivers without the inhibitions of the Labor Code. All it had to do was refuse to renew the agreements, which significantly, were uniformly limited to a six-month period. No cause had to be established because such renewal was subject to the discretion of the parties. In fact, the private respondent did not even have to wait for the expiration of the contract as it was there provided that it could be “earlier terminated at the option of either party.”
By this clever scheme, the private respondent could also prevent the drivers from becoming regular employees and thus be entitled to security of tenure and other benefits, such a as minimum wage, cost-of-living allowances, vacation and sick leaves, holiday pay, and other statutory requirements.”
This pattern of harassment employed by employers has not escaped the attention of C.A Azucena, Jr., a respected labor lawyer and author, who commented:
“ x x x in the great preponderance of cases, the employer’s efforts (of harassment) are much more covert (or hidden) and are generally disguised to escape detection.” (The Labor Code with Comments and Cases, Azucena, 1996, p. 209)
QUESTION:
In SLU, if a teacher has just finished the mandated two-year probationary period and is due for permanency, may the university hire NEW contractuals instead of making the teacher permanent or regular?
ANSWER:
NO. The contractual employee “shall be given priority in case a regular position is available.” [Art. 7, Section 7.13 (a), CBA]. Hence, the university should not hire NEW contractuals.
QUESTION:
In SLU, what is being done to solve this problem?
ANSWER:
This issue has been brought before the attention of the SLU Administration. However, the SLU Administration believes that when the teacher finishes his/her probationary period (two years) with satisfactory performance based on the yearly evaluation, the teacher does not automatically become permanent. The SLU still maintains that it has the management prerogative whether to make the teacher permanent or not. That is why until now, there are many teachers in SLU who have rendered more than two years but are still contractual.
There are now two pending cases before the National Labor Relations Commission (NLRC) to determine the legality of the argument of SLU. One case (where the teacher rendered 3 consecutive years) was decided in favor the employee, that is why the employee is now reinstated. The other case, where the teacher has rendered two consecutive years, is still pending.
