S.A 2020/21 B.E LABOR LAW | Question #15
SUGGESTED ANSWERS TO THE 2020/21 BAR EXAMINATIONS IN LABOR LAW
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In 2019, as a response to a viral #UniversityDoBetter movement, a university announced that it would create the position of independent gender auditor answerable only to the university’s Board of Regents.
The #UniversityDoBetter movement had arisen when a high school student started to post on social media complaints alleging sexual improprieties by some professors. Others soon followed with their own stories. Even traditional media outlets covered their stories. True to its promise, the university engaged one of its former professors with profound feminist views as gender auditor.
The contract stipulated a performance review after five months of the gender auditor’s being engaged. The gender auditor’s performance was never the subject of any assessment by the Board of Regents.
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For about two years, the gender auditor submitted several candid findings on the behavior of some members of the university’s faculty and administration. In January 2021, the gender auditor submitted a report that the university’s management, including the Board of Regents, enabled and facilitated a hostile environment not only for women but also for those whose sexual orientation, gender identity, or gender expression were considered “nonconforming,” i.e., members of the lesbian, gay, bisexual, transgender, queer, intersex, asexual, and other gender and sexual minorities (LGBTQIA+) community. This report leaked and stirred a controversy, causing the university president to be dismissed from their post.
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In January 2022, after the president’s dismissal, the gender auditor received a letter from the Board of Regents, requiring the submission of a performance assessment to determine whether the gender auditor can be considered a regular employee.
The gender auditor seeks your advise because you passed the #BestBarEver2020_21 and were recognized for exemplary performance.
Is the gender auditor still a probationary employee? Explain briefly.
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No, the gender auditor is not a probationary employee. As a matter of law, the gender auditor was already a regular employee from the start of employment.
There is probationary employment where the employee, upon engagement, is made to undergo a trial period during which the employer determines fitness to qualify for regular employment based on reasonable standards made known to the employee at the time of engagement. In this case, the gender auditor’s employment contract did not state the probationary nature of employment. It is settled jurisprudence that the absence of such stipulation in the employment contract makes the employee a regular employee. While the contract stipulated for a performance review after 5 months, the review was not for the purpose of determining whether regular appointment should be extended, or whether the gender auditor already passed the probation period.
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Moreover, Art. 296 of the Labor Code states that probationary employment shall not exceed six (6) months from the date the employee started working. As a general rule, a probation period is only for 6 months and an employee who is allowed to work beyond that 6-month period is already considered a regular employee. In the case at bar, the gender auditor has been working in the university for two years; hence, the gender auditor is a regular employee.
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ALTERNATIVE ANSWER:
No, the gender auditor is not a probationary employee since there is no employer-employee relationship at all.
In determining the existence of an employer-employee relationship, jurisprudence has invariably adhered to the four-fold test, the most significant of which is the control test. This is premised on whether the person for whom the services are performed reserves the right to control both the results achieved and the manner and means used to achieve such end. In this case, there is seemingly no element of control. The designation is “independent gender auditor” and the gender auditor is answerable only to the Board of Regents. At best, the gender auditor is an independent contractor.
Code: S.A 2020/21 B.E LABOR LAW | Question #15
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