Almirante: Extra waiters are regular employees

Dominador A. Almirante
·4 min read

IN HIS complaint for constructive dismissal, regularization and money claims, petitioner -- Allan Regala alleged that he was hired by respondent Manila Hotel Corp. (MHC) sometime in February 2000 as one of its waiters assigned to the Food and Beverages Department. He was later assigned as cook/helper at MHC’s Chocolate Room/Cookies Kitchen from October 18, 2004 to June 26, 2006. As waiter, his duties and responsibilities included preparing the mise en place, taking of orders, and serving food and beverages to hotel guests at tables and inside

MHC’s dining establishments.

In the course of his engagement with MHC, he was directed to report to a Captain Waiter, and assigned to work for its Cowrie Grill, Pool Bar, Mini Bar, Kitchen Ginza, Tap Room, Champagne Room, Room Service, Mabuhay Palace, Banquet Services, and Pastry and House Keeping.

Upon the other hand, MHC denied outright that Regala is its regular employee and claimed that he is a mere freelance “extra waiter” engaged by it on a short-term basis. It alleged that it employs extra waiters at fixed and/or determinable periods particularly when there are temporary spikes in the volume of its business. It is during this specific period when management is forced to supplement the hotel’s regular staff of waiters with temporary or fixed-term employees such as Regala in order to meet increases in business activities in its food and beverage functions, special events and banquets. In engaging extra or temporary waiters MHC relies on loose referrals from its employees and on a list of waiters who have expressed interest in part-time or temporary engagements. Extra waiters like Regala can offer their services to other hotels, restaurants and food catering companies despite their existing engagement with MHC.

It further contended that prior to engaging the services of extra waiters, applicant waiters, such as Regala, and MHC execute a fixed term service contract and agree on its specific duration of engagement depending on the requirements of the hotel in a given period.

Does MHC’s defense find merit?

Ruling: No.

The employment status of a person is defined and prescribed by law and not by what the parties say it should be. In this regard, Article 295 of the Labor Code “provides for two types of regular employees, namely: (a) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer (first category); and (b) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed (second category).” While MHC insists that Regala was engaged under a fixed-term employment agreement, the circumstances and evidence on record, and provision of law, however, dictate that Regala is its regular employee.

First, Regala is performing activities which are usually necessary or desirable in the business or trade of MHC. This connection can be determined by considering the nature of the work performed by Regala and its relation to the nature of the particular business or trade of MHC in its entirety. Being part of the hotel and food industry, MHC, as a service-oriented business enterprise, depends largely on its manpower complement to carry out or perform services relating to food and beverage operations, event planning and hospitality. As such, it is essential, if at all necessary, that it retains in its employ waiting staff, such as Regala, specifically tasked to attend to its guests at its various dining establishments.

Notably, the desirability of his functions is bolstered by the fact that MHC retains in its employ regular staff of waiters charged with like duties or functions as those of Regala’s.

Second, the fact alone that Regala was allowed to work for MHC on several occasions for several years under various Service Agreements is indicative of the regularity and necessity of his functions to its business. Moreover, it bears to emphasize that MHC has admitted, albeit implicitly, that it renewed Regala’s Service Agreements on various occasions, i.e., during temporary spikes in the volume of its business since February 2000.

Thus, the continuing need for his services for the past several years is also sufficient evidence of the indispensability of his duties as waiter to MHC’s business. Additionally, Regala had already been working with the hotel for many years when he was supposedly constructively dismissed from employment on December 2, 2009.

In any event, it is worth noting that MHC failed to deny that Re gala’s work as waiter is necessary and desirable to its business. (Allan Regala vs. Manila Hotel Corp., G.R. No. 204684, October 5, 2020).