DIGEST

MARITES BERNARDO, ET. AL petitioners,

The  Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of
employment as qualified able-bodied employees. Once they have attained the status of regular workers, they should be
accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatment is rooted
not merely on charity or accommodation, but on justice for all.

Complainants numbering 43 are deaf-mutes who were hired on various periods from 1988 to 1993 by respondent Far East
Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called "Employment Contract for
Handicapped Workers". (pp. 68 & 69, Records

Their employment[s] were renewed every six months such that by the time this case arose, there were fifty-six (56) deaf-
mutes who were employed by respondent under the said employment agreement. The last one was Thelma Malindoy who was
employed in 1992 and whose contract expired on July 1993.

Assailed here is the decision by NLRC affirming the LA which dismissed the complaint by the deaf-mute (illegal dismissal?)

Hence, this recourse to this Court. 9

The Ruling of the NLRC

In affirming the ruling of the labor arbiter that herein petitioners could not be deemed regular employees under Article 280 of
the Labor Code, as amended, Respondent Commission ratiocinated as follows:

We agree that Art. 280 is not controlling herein. We give due credence to the conclusion that complainants were hired as an
accommodation to [the] recommendation of civic oriented personalities whose employment[s] were covered by . . .
Employment Contract[s] with special provisions on duration of contract as specified under Art. 80. Hence, as correctly held by
the Labor Arbiter a quo, the terms of the contract shall be the law between the parties. 10

The NLRC also declared that the Magna Carta for Disabled Persons was not applicable, "considering the prevailing
circumstances/milieu of the case."

Issues

In their Memorandum, petitioners cite the following grounds in support of their cause:

I. The Honorable Commission committed grave abuse of discretion in holding that the petitioners — money sorters and
counters working in a bank — were not regular employees.

II. The Honorable Commission committed grave abuse of discretion in holding that the employment contracts signed and
renewed by the petitioners — which provide for a period of six (6) months — were valid.

III. The Honorable Commission committed grave abuse of discretion in not applying the provisions of the Magna Carta for the
Disabled (Republic Act No. 7277), on proscription against discrimination against disabled persons. 11

ISSUE: In the main, the Court will resolve whether petitioners have become regular employees.

Special workers or regular employees? ---- Regular employees.

Magna Carta -- under Art. 280 (regular or casual) now instead of Article 80 (handicapped)

The  Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of
employment as qualified able-bodied employees. Once they have attained the status of regular workers, they should be
accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatment is rooted
not merely on charity or accommodation, but on justice for all.
This Court's Ruling

The petition is meritorious. Yes, they have become regular employees. However, only the employees, who worked for more
than six months and whose contracts were renewed are deemed regular. Hence, their dismissal from employment was illegal.

Main Issue

Are Petitioners Regular Employee?

Petitioners maintain that they should be considered regular employees, because their task as money sorters and counters was
necessary and desirable to the business of respondent bank. They further allege that their contracts served merely to preclude
the application of Article 280 and to bar them from becoming regular employees.

Private respondent, on the other hand, submits that petitioners were hired only as "special workers and should not in any way
be considered as part of the regular complement of the Bank." 12 Rather, they were "special" workers under Article 80 of the
Labor Code. Private respondent contends that it never solicited the services of petitioners, whose employment was merely an
"accommodation" in response to the requests of government officials and civic-minded citizens. They were told from the start,
"with the assistance of government representatives," that they could not become regular employees because there were no
plantilla positions for "money sorters," whose task used to be performed by tellers. Their contracts were renewed several
times, not because of need "but merely for humanitarian reasons." Respondent submits that "as of the present, the "special
position" that was created for the petitioners no longer exist[s] in private respondent [bank], after the latter had decided not to
renew anymore their special employment contracts."

At the outset, let it be known that this Court appreciates the nobility of private respondent's effort to provide employment to
physically impaired individuals and to make them more productive members of society. However, we cannot allow it to elude
the legal consequences of that effort, simply because it now deems their employment irrelevant. The facts, viewed in light of
the Labor Code and the Magna Carta for Disabled Persons, indubitably show that the petitioners, except sixteen of them,
should be deemed regular employees. As such, they have acquired legal rights that this Court is duty-bound to protect and
uphold, not as a matter of compassion but as a consequence of law and justice.

The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one month, after
which the employer shall determine whether or not they should be allowed to finish the 6-month term of the contract.
Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing
by the employer, the contract shall automatically expire at the end of the term.1âwphi1.nêt

According to private respondent, the employment contracts were prepared in accordance with Article 80 of the Labor code,
which provides;

Art. 80. Employment agreement. — Any employer who employs handicapped workers shall enter into an employment
agreement with them, which agreement shall include:

(a) The names and addresses of the handicapped workers to be employed;

(b) The rate to be paid the handicapped workers which shall be not less than seventy five (75%) per cent of the applicable legal
minimum wage;

(c) The duration of employment period; and

(d) The work to be performed by handicapped workers.

The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representatives.

The stipulations in the employment contracts indubitably conform with the aforecited provision. Succeeding events and the
enactment of RA No. 7277 (the Magna Carta for Disabled Persons), 13 however, justify the application of Article 280 of the
Labor Code (Regular and Casual Employment provisions).

Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of
37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers
and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important,
these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did
not render them unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same
terms and conditions of employment as a qualified able-bodied person. Section 5 of the Magna Carta provides:

Sec. 5. Equal Opportunity for Employment. — No disabled person shall be denied access to opportunities for suitable
employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.

The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit
of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article
280 of the Labor Code, which provides:

Art. 280. 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 or 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 services to be performed is seasonal in
nature and the employment is for the duration of the season.

An employment shall be deemed to be 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.

The test of whether an employee is regular was laid down in De Leon v. NLRC, 14 in which this Court held:

The primary standard, therefore, of determining regular employment is the reasonable connection between the particular
activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is
usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering
the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the
employee has been performing the job for at least one year, even if the performance is not continuous and merely intermittent,
the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensibility of
that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while
such activity exists.

Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With
the exception of sixteen of them, petitioners performed these tasks for more than six months.

As held by the Court, "Articles 280 and 281 of the Labor Code put an end to the pernicious practice of making permanent
casuals of our lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum."15 The
contract signed by petitioners is akin to a probationary employment, during which the bank determined the employees' fitness
for the job. When the bank renewed the contract after the lapse of the six-month probationary period, the employees
thereby became regular employees. 16 No employer is allowed to determine indefinitely the fitness of its employees.

As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may be
terminated only for a just or authorized cause. Because respondent failed to show such cause, 17 these twenty-seven
petitioners are deemed illegally dismissed and therefore entitled to back wages and reinstatement without loss of seniority
rights and other privileges. 18 Considering the allegation of respondent that the job of money sorting is no longer available
because it has been assigned back to the tellers to whom it originally belonged, 18 petitioners are hereby awarded separation
pay in lieu of reinstatement. 20

Because the other sixteen worked only for six months, they are not deemed regular employees and hence not entitled to the
same benefits.

Applicability of the Brent Ruling

We are not persuaded. The term limit in the contract was premised on the fact that the petitioners were disabled, and that
the bank had to determine their fitness for the position. Indeed, its validity is based on Article 80 of the Labor Code. But as
noted earlier, petitioners proved themselves to be qualified disabled persons who, under the Magna Carta for Disabled
Persons, are entitled to terms and conditions of employment enjoyed by qualified able-bodied individuals; hence, Article 80
does not apply because petitioners are qualified  for their positions. The validation of the limit imposed on their contracts,
imposed by reason of their disability, was a glaring instance of the very mischief sought to be addressed by the new law.

Moreover, it must be emphasized that a contract of employment is impressed with public interest. 22 Provisions of applicable
statutes are deemed written into the contract, and the "parties are not at liberty to insulate themselves and their relationships
from the impact of labor laws and regulations by simply contracting with each other." 23 Clearly, the agreement of the parties
regarding the period of employment cannot prevail over the provisions of the Magna Carta for Disabled Persons, which
mandate that petitioners must be treated as qualified able-bodied employees.

Respondent's reason for terminating the employment of petitioners is instructive. Because the Bangko Sentral ng Pilipinas (BSP)
required that cash in the bank be turned over to the BSP during business hours from 8:00 a.m. to 5:00 p.m., respondent
resorted to nighttime sorting and counting of money. Thus, it reasons that this task "could not be done by deaf mutes because
of their physical limitations as it is very risky for them to travel at night." 24 We find no basis for this argument. Travelling at
night involves risks to handicapped and able-bodied persons alike. This excuse cannot justify the termination of their
employment.

Other Grounds Cited by Respondent

Respondent argues that petitioners were merely "accommodated" employees. This fact does not change the nature of their
employment. As earlier noted, an employee is regular because of the nature of work and the length of service, not because of
the mode or even the reason for hiring them.

Equally unavailing are private respondent's arguments that it did not go out of its way to recruit petitioners, and that its
plantilla did not contain their positions. In L. T. Datu v. NLRC, 25 the Court held that "the determination of whether employment
is casual or regular does not depend on the will or word of the employer, and the procedure of hiring . . . but on the nature of
the activities performed by the employee, and to some extent, the length of performance and its continued existence."

Private respondent argues that the petitioners were informed from the start that they could not become regular employees. In
fact, the bank adds, they agreed with the stipulation in the contract regarding this point. Still, we are not persuaded. The well-
settled rule is that the character of employment is determined not by stipulations in the contract, but by the nature of the
work performed. 26 Otherwise, no employee can become regular by the simple expedient of incorporating this condition in the
contract of employment.

In this light, we iterate our ruling in Romares v. NLRC: 27

Art. 280 was emplaced in our statute books to prevent the circumvention of the employee's right to be secure in his tenure by
indiscriminately and completely ruling out all written and oral agreements inconsistent with the concept of regular employment
defined therein. Where an employee has been engaged to perform activities which are usually necessary or desirable in the
usual business of the employer, such employee is deemed a regular employee and is entitled to security of tenure
notwithstanding the contrary provisions of his contract of employment.

xxx xxx xxx

At this juncture, the leading case of Brent School, Inc. v.  Zamora proves instructive. As reaffirmed in subsequent cases, this
Court has upheld the legality of fixed-term employment. It ruled that the decisive determinant in "term employment" should
not be the activities that the employee is called upon to perform but the day certain agreed upon the parties for the
commencement and termination of their employment relationship. But this Court went on to say that where from the
circumstances it is apparent that the periods have been imposed to preclude acquisition of tenurial security by the
employee, they should be struck down or disregarded as contrary to public policy and morals.
In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working class, but also the
concern of the State for the plight of the disabled. The noble objectives of Magna Carta for Disabled Persons are not based
merely on charity or accommodation, but on justice and the equal treatment of qualified persons, disabled or not. In the
present case, the handicap of petitioners (deaf-mutes) is not a hindrance to their work. The eloquent proof of this statement
is the repeated renewal of their employment contracts . Why then should they be dismissed, simply because they are
physically impaired? The Court believes, that, after showing their fitness for the work assigned to them, they should be treated
and granted the same rights like any other regular employees.

In this light, we note the Office of the Solicitor General's prayer joining the petitioners' cause. 28

WHEREFORE, premises considered, the Petition is hereby GRANTED. The June 20, 1995 Decision and the August 4, 1995
Resolution of the NLRC are REVERSED and SET ASIDE. Respondent Far East Bank and Trust Company is hereby ORDERED to pay
back wages and separation pay to each of the following twenty-seven (27) petitioners.