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temporary closure of BPCs plant did not terminate his employment, hence, heneed not reapply when the plant reopened.

According to the labor arbiter, petitioners money claims for illegal dismissal wasalso weakened by his quitclaim and admission during the clarificatory conference

that he accepted separation benefits, sick and vacation leave conversions andthirteenth month pay.12

Nevertheless, the labor arbiter found petitioner entitled to overtime pay, premiumpay for working on rest days, and attorneys fees in the total amountof P21,257.98.13

Ruling of the NLRC

Respondents filed an appeal to the NLRC, which deleted the award of overtimepay and premium pay for working on rest days. According to the Commission,petitioner was not entitled to these awards because he was a managerialemployee.14

Ruling of the Court of Appeals

In its Resolution dated January 27, 2003, the CA dismissed Pearandas Petitionfor Certiorari. The appellate court held that he failed to: 1) attach copies of the

pleadings submitted before the labor arbiter and NLRC; and 2) explain why thefiling and service of the Petition was not done by personal service.15

In its later Resolution dated July 4, 2003, the CA denied reconsideration on theground that petitioner still failed to submit the pleadings filed before the NLRC.

16

Hence this Petition.17

The Issues

Petitioner states the issues in this wise:

"The [NLRC] committed grave abuse of discretion amounting to excess or lack ofjurisdiction when it entertained the APPEAL of the respondent[s] despite thelapse of the mandatory period of TEN DAYS.1avvphil.net

"The [NLRC] committed grave abuse of discretion amounting to an excess orlack of jurisdiction when it rendered the assailed RESOLUTIONS dated May 8,2002 and AUGUST 16, 2002 REVERSING AND SETTING ASIDE theFACTUAL AND LEGAL FINDINGS of the [labor arbiter] with respect to thefollowing:

"I. The finding of the [labor arbiter] that [Pearanda] is a regular,common employee entitled to monetary benefits under Art. 82 [of theLabor Code].

"II. The finding that [Pearanda] is entitled to the payment ofOVERTIME PAY and OTHER MONETARY BENEFITS."

18

The Courts Ruling

The Petition is not meritorious.

Preliminary Issue:

Resolution on the Merits

The CA dismissed Pearandas Petition on purely technical grounds, particularlywith regard to the failure to submit supporting documents.

In Atillo v. Bombay,19the Court held that the crucial issue is whether thedocuments accompanying the petition before the CA sufficiently supported theallegations therein. Citing this case, Piglas-Kamao v. NLRC20stayed thedismissal of an appeal in the exercise of its equity jurisdiction to order the

adjudication on the merits.

The Petition filed with the CA shows a prima facie case. Petitioner attached hisevidence to challenge the finding that he was a managerial employee .21In hisMotion for Reconsideration, petitioner also submitted the pleadings before thelabor arbiter in an attempt to comply with the CA rules.22Evidently, the CAcould have ruled on the Petition on the basis of these attachments. Petitionershould be deemed in substantial compliance with the procedural requirements.
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Under these extenuating circumstances, the Court does not hesitate to grantliberality in favor of petitioner and to tackle his substantive arguments in the

present case. Rules of procedure must be adopted to help promote, not frustrate,substantial justice.23The Court frowns upon the practice of dismissing cases

purely on procedural grounds.24

Considering that there was substantial

compliance,

25

a liberal interpretation of procedural rules in this labor case is morein keeping with the constitutional mandate to secure social justice.26

First Issue:

Timeliness of Appeal

Under the Rules of Procedure of the NLRC, an appeal from the decision of thelabor arbiter should be filed within 10 days from receipt thereof.27

Petitioners claim that respondents filed their appeal beyond the required periodis not substantiated. In the pleadings before us, petitioner fails to indicate whenrespondents received the Decision of the labor arbiter. Neither did the petitionerattach a copy of the challenged appeal. Thus, this Court has no means todetermine from the records when the 10-day period commenced and terminated.Since petitioner utterly failed to support his claim that respondents appeal wasfiled out of time, we need not belabor that point. The parties alleging have the

burden of substantiating their allegations.28

Second Issue:

Nature of Employment

Petitioner claims that he was not a managerial employee, and therefore, entitledto the award granted by the labor arbiter.

Article 82 of the Labor Code exempts managerial employees from the coverageof labor standards. Labor standards provide the working conditions of employees,including entitlement to overtime pay and premium pay for working on restdays.

29Under this provision, managerial employees are "those whose primary

duty consists of the management of the establishment in which they are employedor of a department or subdivision."

30

The Implementing Rules of the Labor Code state that managerial employees arethose who meet the following conditions:

"(1) Their primary duty consists of the management of the establishmentin which they are employed or of a department or subdivision thereof;

"(2) They customarily and regularly direct the work of two or moreemployees therein;

"(3) They have the authority to hire or fire other employees of lowerrank; or their suggestions and recommendations as to the hiring andfiring and as to the promotion or any other change of status of otheremployees are given particular weight."

31

The Court disagrees with the NLRCs finding that petitioner was a managerialemployee. However, petitioner was a member of the managerial staff, which alsotakes him out of the coverage of labor standards. Like managerial employees,officers and members of the managerial staff are not entitled to the provisions oflaw on labor standards.32The Implementing Rules of the Labor Code definemembers of a managerial staff as those with the following duties andresponsibilities:

"(1) The primary duty consists of the performance of work directlyrelated to management policies of the employer;

"(2) Customarily and regularly exercise discretion and independentjudgment;

"(3) (i) Regularly and directly assist a proprietor or a managerialemployee whose primary duty consists of the management of theestablishment in which he is employed or subdivision thereof; or (ii)execute under general supervision work along specialized or technicallines requiring special training, experience, or knowledge; or (iii)execute under general supervision special assignments and tasks; and

"(4) who do not devote more than 20 percent of their hours worked in aworkweek to activities which are not directly and closely related to the
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performance of the work described in paragraphs (1), (2), and (3)above."

33

As shift engineer, petitioners duties and responsibilities were as follows:

"1. To supply the required and continuous steam to all consuming unitsat minimum cost.

"2. To supervise, check and monitor manpower workmanship as well asoperation of boiler and accessories.

"3. To evaluate performance of machinery and manpower.

"4. To follow-up supply of waste and other materials for fuel.

"5. To train new employees for effective and safety while working.

"6. Recommend parts and supplies purchases.

"7. To recommend personnel actions such as: promotion, or disciplinaryaction.

"8. To check water from the boiler, feedwater and softener, regeneratesoftener if beyond hardness limit.

"9. Implement Chemical Dosing.

"10. Perform other task as required by the superior from time to time. "34

The foregoing enumeration, particularly items 1, 2, 3, 5 and 7 illustrates thatpetitioner was a member of the managerial staff. His duties and responsibilitiesconform to the definition of a member of a managerial staff under theImplementing Rules.

Petitioner supervised the engineering section of the steam plant boiler. His workinvolved overseeing the operation of the machines and the performance of theworkers in the engineering section. This work necessarily required the use of

discretion and independent judgment to ensure the proper functioning of thesteam plant boiler. As supervisor, petitioner is deemed a member of themanagerial staff.35

Noteworthy, even petitioner admitted that he was a supervisor. In his Position

Paper, he stated that he was the foreman responsible for the operation of theboiler.36The term foreman implies that he was the representative of managementover the workers and the operation of the department .37Petitioners evidence alsoshowed that he was the supervisor of the steam plant.38His classification assupervisor is further evident from the manner his salary was paid. He belonged tothe 10% of respondents 354 employees who were paid on a monthly basis; theothers were paid only on a daily basis.39

On the basis of the foregoing, the Court finds no justification to award overtimepay and premium pay for rest days to petitioner.

WHEREFORE, the Petition is DENIED. Costs against petitioner.

SO ORDERED.

ARTEMIO V. PANGANIBAN

SECOND DIVISION

CLIENTLOGIC PHILPPINES, INC. (now known as

SITEL), JOSEPH VELASQUEZ, IRENE ROA, andRODNEY SPIRES,

Petitioners,

- versus -

G.R. No. 186070

Present:

CARPIO,J.,Chairperson,

NACHURA,PERALTA,ABAD, andMENDOZA,JJ.

Promulgated:
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BENEDICT CASTRO,Respondent.

April 11, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This is a Petition for Review on Certiorariunder Rule 45 of the Rules of

Court, assailing the September 1, 2008 Decision[1]and the January 7, 2009

Resolution[2]

of the Court of Appeals (CA), affirming with modification the

November 29, 2007 resolution[3]of the National Labor Relations Commission

(NLRC), which held that respondent Benedict Castro was not illegally dismissed.

The CA, however, awarded respondents money claims, viz.:

WHEREFORE, premises considered, the instantPetition is PARTLY GRANTED. The Resolutions dated 29

November 2007 and 23 January 2008 of the National LaborRelations Commission (Third Division) inNLRC CN. RAB-CAR-02-0091-07 LAC NO. 08-002207-07are AFFIRMEDwith MODIFICATIONin that themonetary awards of Executive Labor Arbiter Vito C. Bose inhis Decision dated 29 June 2007, as computed in Annex Athereof, ONLYfor holiday premiums of Php 16,913.35; serviceincentive leave pay Php8,456.65; overtime pay of Php578,753.10; and rest day pay of Php 26,384.80 which(petitioners) shall jointly and solidarily pay to petitioner, areherebyREINSTATED. No pronouncement as to costs.

SO ORDERED.[4]

The second assailed issuance of the CA denied petitioners motion for

reconsideration.

The facts:

Respondent was employed by petitioner ClientLogic Philippines, Inc.

(now known and shall hereafter be referred to as SITEL) on February 14, 2005 as

a call center agent for its Bell South Account. After six (6) months, he was

promoted to the Mentor position, and thereafter to the Coach position. A

Coach is a team supervisor who is in charge of dealing with customer

complaints which cannot be resolved by call center agents. In June 2006, he was

transferred to the Dot Green Account.

During respondents stint at the Dot Green Account, respondent noticed

that some of the call center agents under him would often make excuses to leave

their work stations. Their most common excuse was that they would visit the

companys medical clinic. To verify that they were not using the clinic as an alibi

to cut their work hours, respondent sent an e- mail to the clinics personnel

requesting for the details of the agents alleged medical consultation. His request

was denied on the ground that medical records of employees are highly

confidential and can only be disclosed in cases involving health issues, and not to

be used to build any disciplinary case against them.

On October 11, 2006, respondent received a notice requiring him to

explain why he should not be penalized for: (1) violating Green Dot Companys

Policy and Procedure for Direct Deposit Bank Info Request when he accessed a
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customers online account and then gave the latters routing and reference

numbers for direct deposit; and (2) gravely abusing his discretion when he

requested for the medical records of his team members. Respondent did not deny

the infractions imputed against him. He, however, justified his actuations by

explaining that the customer begged him to access the account because she did

not have a computer or an internet access and that he merely requested for a

patient tracker, not medical records.

In November 2006, a poster showing SITELs organizational chart was

posted on the companys bulletin board, but respondents name and picture were

conspicuously missing, and the name and photo of another employee appeared in

the position which respondent was supposedly occupying.

On January 22, 2007, SITEL posted a notice of vacancy for respondents

position, and on February 12, 2007, he received a Notice of Termination. These

events prompted him to file a complaint for illegal dismissal; non-payment of

overtime pay, rest day pay, holiday pay, service incentive leave pay; full

backwages; damages; and attorneys fees before the Labor Arbiter (LA) against

herein petitioners SITEL and its officers, Joseph Velasquez (Velasquez), Irene

Roa (Roa), and Rodney Spires (Spires).[5]

In their position paper,[6]

petitioners averred that respondent was

dismissed on account of valid and justifiable causes. He committed serious

misconduct which breached the trust and confidence reposed in him by the

company. He was duly furnished the twin notices required by the Labor Code.

Further, he is not entitled to overtime pay, rest day pay, night shift differential,

holiday pay, and service incentive leave pay because he was a supervisor, hence,

a member of the managerial staff.

In a decision dated June 29, 2007,[7]the LA ruled in favor of respondent by

declaring him illegally dismissed and ordering petitioners to pay his full

backwages and, in lieu of reinstatement, his separation pay. The LA further

awarded respondents money claims upon finding that he was not occupyin g a

managerial position. The decretal portion of the decision reads:

WHEREFORE, all premises duly considered, the(petitioners) are hereby found guilty of illegally dismissing(respondent). As such, (petitioners) shall be jointly andsolidarily liable to pay (respondent) his full backwages from thedate of his dismissal to the finality of this decision, computed

as of today at One Hundred Thirty Eight Thousand SevenHundred Fifty Nine Pesos and 80/100(P138,759.80)plus, Seven Hundred Sixty Three ThousandTwo Hundred Forty Eight Pesos and 67/100(P763,248.67)representing his separation pay at one month payfor every year of service, holiday pay and service incentiveleave pay for the three years prior to the filing of this case,overtime pay for six (6) hours daily, rest day and ten percent(10%) as attorneys fees.

All other claims are hereby dismissed for lack ofevidence.

The computation of the foregoing monetary claims ishereto attached and made an integral part hereof as Annex A.

SO ORDERED.[8]

Aggrieved, petitioners appealed to the NLRC, which, in its November 29,

2007 resolution,[9]reversed and set aside the decision of the LA by dismissing the
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complaint for lack of merit on the ground that respondents employment was

terminated for a just cause. The NLRC failed to discuss the money claims.

On September 1, 2008, the CA affirmed the NLRCs finding that there was

no illegal dismissal. Anent the money claims, however, the CA concurred with

the LAs ruling.[10]

Petitioners and respondent respectively moved for partial

reconsideration, but their motions were denied in the CA Resolution dated

January 7, 2009.[11]

From the said denial, only petitioners sought recourse with

this Court through the petition at bar. Respondents failure to partially appeal the

CAs Decision finding him not illegally dismissed has now rendered the same

final and executory; hence, the instant petition shall traverse only the issue on

money claims.

Petitioners argue in the main [12]that, as a team supervisor, respondent was

a member of the managerial staff; hence, he is not entitled to overtime pay, rest

day pay, holiday pay, and service incentive leave pay.

We deny the petition.

The petition hinges on the question of whether the duties and

responsibilities performed by respondent qualify him as a member of petitioners

managerial staff. This is clearly a question of fact, the determination of which

entails an evaluation of the evidence on record.

The alleged errors of the CA lengthily enumerated in the petitio n[13]

are

essentially factual in nature and, therefore, outside the ambit of a petition for

review oncertiorariunder Rule 45 of the Rules of Civil Procedure. The Court

does not try facts since such statutory duty is devolved upon the labor tribunals. It

is not for this Court to weigh and calibrate pieces of evidence otherwise

adequately passed upon by the labor tribunals especially when affirmed by the

appellate court.[14]

Petitioners claim exception to the foregoing rule and assert that the

factual findings of the LA and the NLRC were conflicting. This is not correct.

The labor tribunals decisions were at odds only with respect to the issue of

illegal dismissal. Anent the money claims issue, it cannot be said that their

rulings were contradictory because the NLRC, disappointingly, did not make any

finding thereon and it erroneously construed that the resolution of the money

claims was intertwined with the determination of the legality of respondents

dismissal. Nonetheless, the CA has already rectified such lapse when it made a

definitive review of the LAs factual findings on respondents money claims.

Agreeing with the LA, the CA held:

Article 82 of the Labor Code states that the provisionsof the Labor Code on working conditions and rest periods shallnot apply to managerial employees. Generally, managerialemployees are not entitled to overtime pay for servicesrendered in excess of eight hours a day.

Article 212 (m) of the Labor Code defines amanagerial employee as one who is vested with powers or

prerogatives to lay down and execute management policiesand/or to hire, transfer, suspend, lay-off, recall, discharge,assign or discipline employees, or to effectively recommendsuch managerial actions.
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In his Position Paper, (respondent) states that he

worked from 8:00 p.m. to 10:00 a.m. or 4 p.m. to 12:00 p.m. ofthe following day; he was also required to work during hisrestdays and during holidays but he was not paid; he was also

not paid overtime pay; night shift differentials, and serviceincentive leave. He was employed as call center agent on 14February 2005, then promoted as Mentor in August 2005,and again promoted to Coach position in September 2005,which was the position he had when he was terminated. Acoach is a team supervisor who is in charge of dealing withcustomer complaints which could not be dealt with by callcenter agents, and if a call center agent could not meet theneeds of a customer, he passes the customers call to thecoach. Clearly, (respondent) is not a managerial employee asdefined by law. Thus, he is entitled to his money claims.

As correctly found by Executive Labor Arbiter Bose:

Employees are considered occupying managerialpositions if they meet all of the following conditions, namely:

1) Their primary duty consists of management of theestablishment in which they are employed or of a department orsubdivision thereof;

2) They customarily and regularly direct the work oftwo or more employees therein;

3) They have the authority to hire or fire otheremployees of lower rank; or their suggestions andrecommendations as to the hiring and firing and as to the

promotion or any other change of status of other employees aregiven particular weight.

They are considered as officers or members of amanagerial staff if they perform the following duties andresponsibilities:

1) The primary duty consists of the performance ofwork directly related to management of policies of theiremployer;

2) Customarily and regularly exercise discretion and

independent judgment;

3) (i) Regularly and directly assist a proprietor or amanagerial employee whose primary duty consists ofmanagement of the establishment in which he is employed orsubdivision thereof; or (ii) execute under general supervisionwork along specialized or technical lines requiring specialtraining, experience, or knowledge; or (iii) execute, undergeneral supervision, special assignment and tasks xxx.

(Respondents) duties do not fall under any of thecategories enumerated above. His work is not directly related tomanagement policies. Even the circumstances shown by theinstant case reveal that (respondent) does not regularly exercisediscretion and independent judgment. (Petitioners) submitted alist of the responsibilities of HR Manager/Supervisor andDivision Manager/Department Manager/Supervisors butthese do not pertain to (respondent) who does not have any ofthe said positions. He was just a team Supervisor and not (an)HR or Department Supervisor.[15]

We find no reversible error in the above ruling. The test of supervisory

or managerial status depends on whether a person possesses authority to act in

the interest of his employer and whether such authority is not merely routinary or

clerical in nature, but requires the use of independent judgment.[16]The position

held by respondent and its concomitant duties failed to hurdle this test.

As a coach or team supervisor, respondents main duty was to deal with

customer complaints which could not be handled or solved by call center agents.
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If the members of his team could not meet the needs of a customer, they passed

the customers call torespondent.

This job description does not indicate that respondent can exercise the

powers and prerogatives equivalent to managerial actions which require the

customary use of independent judgment. There is no showing that he was actually

conferred or was actually exercising the following duties attributable to a

member of the managerial staff,viz.:

1) The primary duty consists of the performance of workdirectly related to management of policies of their employer;

2) Customarily and regularly exercise discretion and

independent judgment;3) (i) Regularly and directly assist aproprietor or a managerial employee whose primary dutyconsists of management of the establishment in which he isemployed or subdivision thereof; or (ii) execute under generalsupervision work along specialized or technical lines requiringspecial training, experience, or knowledge; or (iii) execute,under general supervision, special assignment and tasks; and

4) Who do not devote more than 20 percent of their hoursworked in a workweek to activities which are not directly andclosely related to the performance of the work described in

paragraphs (1), (2), and (3) above.[17]

According to petitioners, respondent also performed the following

duties, as shown in the companys Statement of Policy on Discipline:

a. Know and understand in full the Policy on Disciplineincluding their underlying reasons.

b. Implement strictly and consistently the Policy on Discipline.

c. Ensure that the said Policy on Discipline is communicated toand understood by all employees.

d. Monitor compliance by employees with the said Policy.

e. Advise HR Manager on the state of discipline in theirrespective departments; problems, if any, and recommendsolution(s) and corrective action(s).

As correctly observed by the CA and the LA, these duties clearly

pertained to Division Managers/Department Managers/ Supervisors, which

respondent was not, as he was merely a team supervisor. Petitioners themselves

described respondent as the superior of a call center agent; he heads and guides a

specific number of agents, who form a team.[18]

From the foregoing, respondent is thus entitled to his claims for

holiday pay, service incentive leave pay, overtime pay and rest day

pay,pursuant to Book Three of the Labor Code, specifically Article 82,[19]in

relation to Articles 87,[20]93,[21]and 95[22]thereof.

WHEREFORE, premises considered, the Petition is hereby DENIED.

The September 1, 2008 Decision and the January 7, 2009 Resolution of the Court

of Appeals are AFFIRMED.

SO ORDERED.

AUTO BUS TRANSPORT SYSTEMS, INC., petitioner, vs.ANTONIOBAUTISTA, respondent.
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D E C I S I O N

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorariassailing theDecision[1]and Resolution[2]of the Court of Appeals affirming the Decision[3]ofthe National Labor Relations Commission (NLRC). The NLRC ruling modifiedthe Decision of the Labor Arbiter (finding respondent entitled to the award of13thmonth pay and service incentive leave pay) by deleting the award of13

thmonth pay to respondent.

THE FACTS

Since 24 May 1995, respondent Antonio Bautista has been employed bypetitioner Auto Bus Transport Systems, Inc. (Autobus), as driver-conductor with

travel routes Manila-Tuguegarao via Baguio, Baguio- Tuguegarao via Manila andManila-Tabuk via Baguio. Respondent was paid on commission basis, sevenpercent (7%) of the total gross income per travel, on a twice a month basis.

On 03 January 2000, while respondent was driving Autobus No. 114 alongSta. Fe, Nueva Vizcaya, the bus he was driving accidentally bumped the rear

portion of Autobus No. 124, as the latter vehicle suddenly stopped at a sharpcurve without giving any warning.

Respondent averred that the accident happened because he was compelledby the management to go back to Roxas, Isabela, although he had not slept foralmost twenty-four (24) hours, as he had just arrived in Manila from Roxas,Isabela. Respondent further alleged that he was not allowed to work until he

fully paid the amount of P75,551.50, representing thirty percent (30%) of the costof repair of the damaged buses and that despite respondents pleas forreconsideration, the same was ignored by management. After a month,management sent him a letter of termination.

Thus, on 02 February 2000, respondent instituted a Complaint for IllegalDismissal with Money Claims for nonpayment of 13

thmonth pay and service

incentive leave pay against Autobus.

Petitioner, on the other hand, maintained that respondents employment wasreplete with offenses involving reckless imprudence, gross negligence, and

dishonesty. To support its claim, petitioner presented copies of letters, memos,irregularity reports, and warrants of arrest pertaining to several incidents whereinrespondent was involved.

Furthermore, petitioner avers that in the exercise of its managementprerogative, respondents employment was terminated only after the latter was

provided with an opportunity to explain his side regarding the accident on 03January 2000.

On 29 September 2000, based on the pleadings and supporting evidencepresented by the parties, Labor Arbiter Monroe C. Tabingan promulgated aDecision,

[4]the dispositive portion of which reads:

WHEREFORE, all premises considered, it is hereby found that the complaint forIllegal Dismissal has no leg to stand on. It is hereby ordered DISMISSED, as it ishereby DISMISSED.

However, still based on the above-discussed premises, the respondent must pay to

the complainant the following:

a. his 13thmonth pay from the date of his hiring to the date of

his dismissal, presently computed at P78,117.87;

b. his service incentive leave pay for all the years he had beenin service with the respondent, presently computed atP13,788.05.

All other claims of both complainant and respondent are hereby dismissed forlack of merit.[5]

Not satisfied with the decision of the Labor Arbiter, petitioner appealed thedecision to the NLRC which rendered its decision on 28 September 2001, thedecretal portion of which reads:

[T]he Rules and Regulations Implementing Presidential Decree No. 851,particularly Sec. 3 provides:

Section 3. Employers covered. The Decree shall apply to all employers exceptto:
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xxx xxx xxx

e) employers of those who are paid on purely commission, boundary, or taskbasis, performing a specific work, irrespective of the time consumed in theperformance thereof. xxx.

Records show that complainant, in his position paper, admitted that he was paidon a commission basis.

In view of the foregoing, we deem it just and equitable to modify the assailedDecision by deleting the award of 13

thmonth pay to the complainant.

WHEREFORE, the Decision dated 29 September 2000 is MODIFIED bydeleting the award of 13thmonth pay. The other findings are AFFIRMED.[6]

In other words, the award of service incentive leave pay was maintained.Petitioner thus sought a reconsideration of this aspect, which was subsequentlydenied in a Resolution by the NLRC dated 31 October 2001.

Displeased with only the partial grant of its appeal to the NLRC, petitionersought the review of said decision with the Court of Appeals which wassubsequently denied by the appellate court in a Decision dated 06 May 2002, thedispositive portion of which reads:

WHEREFORE, premises considered, thePetitionis DISMISSED for lack ofmerit; and the assailedDecision of respondent Commission in NLRC NCR CA

No. 026584-2000 is hereby AFFIRMED in toto. No costs.[7]

Hence, the instant petition.

ISSUES

1. Whether or not respondent is entitled to service incentive leave;

2. Whether or not the three (3)-year prescriptive period provided underArticle 291 of the Labor Code, as amended, is applicable torespondents claim of service incentive leave pay.

RULING OF THE COURT

The disposition of the first issue revolves around the proper interpretation ofArticle 95 of the Labor Code vis--vis Section 1(D), Rule V, Book III of theImplementing Rules and Regulations of the Labor Code which provides:

Ar t. 95. RIGHT TO SERVICE INCENTIVE LEAVE

(a) Every employee who has rendered at least one year of serviceshall be entitled to a yearly service incentive leave of five dayswith pay.

Book II I, Rule V: SERVICE I NCENTI VE LEAVE

SECTION 1. Coverage.This rule shall apply to all employees except:

(d) Field personnel and other employees whose performance isunsupervised by the employer including those who are engagedon task or contract basis, purely commission basis, or those whoare paid in a fixed amount for performing work irrespective of the

time consumed in the performance thereof; . . .

A careful perusal of said provisions of law will result in the conclusion thatthe grant of service incentive leave has been delimited by the Implementing Rulesand Regulations of the Labor Code to apply only to those employees notexplicitly excluded by Section 1 of Rule V. According to the ImplementingRules, Service Incentive Leave shall not apply to employees classified as field

personnel. The phrase other employees whose performance is unsupervis ed bythe employer must not be understood as a separate classification of employees towhich service incentive leave shall not be granted. Rather, it serves as an
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amplification of the interpretation of the definition of field personnel under theLabor Code as those whose actual hours of work in the field cannot bedetermined with reasonable certainty.[8]

The same is true with respect to the phrase those who are engaged on taskor contract basis, purely commission basis. Said phrase should be related with

field personnel, applying the rule onejusdem generis that general and unlimitedterms are restrained and limited by the particular terms that they follow.[9]Hence,employees engaged on task or contract basis or paid on purely commission basisare not automatically exempted from the grant of service incentive leave, unless,they fall under the classification of field personnel.

Therefore, petitioners contention that respondent is not entitled to the grantof service incentive leave just because he was paid on purely commission basis ismisplaced. What must be ascertained in order to resolve the issue of propriety ofthe grant of service incentive leave to respondent is whether or not he is a field

personnel.

According to Article 82 of the Labor Code, field personnel shall refer to

non-agricultural employees who regularly perform their duties away from theprincipal place of business or branch office of the employer and whose actualhours of work in the field cannot be determined with reasonable certainty. Thisdefinition is further elaborated in theBureau of Working Conditions (BWC),

Advisory Opinion to Philippine Technical-Clerical Commercial EmployeesAssociation

[10]which states that:

As a general rule, [field personnel] are those whose performance of theirjob/service is not supervised by the employer or his representative, the workplacebeing away from the principal office and whose hours and days of work cannotbe determined with reasonable certainty; hence, they are paid specific amount forrendering specific service or performing specific work. If required to be at

specific places at specific times, employees including drivers cannot be said to befield personnel despite the fact that they are performing work away from theprincipal office of the employee.[Emphasis ours]

To this discussion by the BWC, the petitioner differs and postulates thatunder said advisory opinion, no employee would ever be considered a field

personnel because every employer, in one way or another, exercises control overhis employees. Petitioner further argues that the only criterion that should beconsidered is the nature of work of the employee in that, if the employees job

requires that he works away from the principal office like that of a messenger or abus driver, then he is inevitably a field personnel.

We are not persuaded. At this point, it is necessary to stress that thedefinition of a field personnel is not merely concerned with the location wherethe employee regularly performs his duties but also with the fact that the

employees performance is unsupervised by the employer. As discussed above,field personnel are those who regularly perform their duties away from the

principal place of business of the employer and whose actual hours of work in thefield cannot be determined with reasonable certainty. Thus, in order to concludewhether an employee is a field employee, it is also necessary to ascertain if actualhours of work in the field can be determined with reasonable certainty by theemployer. In so doing, an inquiry must be made as to whether or not theemployees time and performance are constantly supervised by the employer.

As observed by the Labor Arbiter and concurred in by the Court of Appeals:

It is of judicial notice that along the routes that are plied by these bus companies,

there are its inspectors assigned at strategic places who board the bus and inspectthe passengers, the punched tickets, and the conductors reports. There is also themandatory once-a-week car barn or shop day, where the bus is regularly checkedas to its mechanical, electrical, and hydraulic aspects, whether or not there are

problems thereon as reported by the driver and/or conductor. They too, must beat specific place as [sic] specified time, as they generally observe promptdeparture and arrival from their point of origin to their point of destination. Ineach and every depot, there is always the Dispatcher whose function is preciselyto see to it that the bus and its crew leave the premises at specific times and arriveat the estimated proper time. These, are present in the case at bar. The driver, thecomplainant herein, was therefore under constant supervision while in the

performance of this work. He cannot be considered a field personnel.[11]

We agree in the above disquisition. Therefore, as correctly concluded bythe appellate court, respondent is not a field personnel but a regular employeewho performs tasks usually necessary and desirable to the usual trade of

petitioners business. Accordingly, respondent is entitled to the grant of serviceincentive leave.

The question now that must be addressed is up to what amount of serviceincentive leave pay respondent is entitled to.
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The response to this query inevitably leads us to the correlative issue ofwhether or not the three (3)-year prescriptive period under Article 291 of theLabor Code is applicable to respondents claim of service incentive l eave pay.

Article 291 of the Labor Code states that all money claims arising fromemployer-employee relationship shall be filed within three (3) years from the

time the cause of action accrued; otherwise, they shall be forever barred.

In the application of this section of the Labor Code, the pivotal question tobe answered is when does the cause of action for money claims accrue in order todetermine the reckoning date of the three-year prescriptive period.

It is settled jurisprudence that a cause of action has three elements, to wit,(1) a right in favor of the plaintiff by whatever means and under whatever law itarises or is created; (2) an obligation on the part of the named defendant torespect or not to violate such right; and (3) an act or omission on the part of suchdefendant violative of the right of the plaintiff or constituting a breach of theobligation of the defendant to the plaintiff.[12]

To properly construe Article 291 of the Labor Code, it is essential toascertain the time when the third element of a cause of action transpired. Stateddifferently, in the computation of the three-year prescriptive period, adetermination must be made as to the period when the act constituting a violationof the workers right to the benefits being claimed was committed. For if thecause of action accrued more than three (3) years before the filing of the moneyclaim, said cause of action has already prescribed in accordance with Article291.[13]

Consequently, in cases of nonpayment of allowances and other monetarybenefits, if it is established that the benefits being claimed have been withheldfrom the employee for a period longer than three (3) years, the amount pertainingto the period beyond the three-year prescriptive period is therefore barred by

prescription. The amount that can only be demanded by the aggrieved employeeshall be limited to the amount of the benefits withheld within three (3) years

before the filing of the complaint.[14]

It is essential at this point, however, to recognize that the service incentiveleave is a curious animal in relation to other benefits granted by the law to everyemployee. In the case of service incentive leave, the employee may choose toeither use his leave credits or commute it to its monetary equivalent if notexhausted at the end of the year.

[15]Furthermore, if the employee entitled to

service incentive leave does not use or commute the same, he is entitled upon his

resignation or separation from work to the commutation of his accrued serviceincentive leave. As enunciated by the Court inFernandez v. NLRC:

[16]

The clear policy of the Labor Code is to grant service incentive leave pay toworkers in all establishments, subject to a few exceptions. Section 2, Rule V,

Book III of the Implementing Rules and Regulations provides that [e]veryemployee who has rendered at least one year of service shall be entitled to ayearly service incentive leave of five days with pay. Service incentive leave is aright which accrues to every employee who has served within 12 months,whether continuous or broken reckoned from the date the employee startedworking, including authorized absences and paid regular holidays unless theworking days in the establishment as a matter of practice or policy, or that

provided in the employment contracts, is less than 12 months, in which case saidperiod shall be considered as one year. It is alsocommutable to its moneyequivalent if not used or exhausted at the end of the year. In other words, anemployee who has served for one year is entitled to it.He may use it as leavedays or he may collect its monetary value. To limit the award to three years, as

the solicitor general recommends, is to unduly restrict such right.

[17]

[Italicssupplied]

Correspondingly, it can be conscientiously deduced that the cause of actionof an entitled employee to claim his service incentive leave pay accrues from themoment the employer refuses to remunerate its monetary equivalent if theemployee did not make use of said leave credits but instead chose to avail of itscommutation. Accordingly, if the employee wishes to accumulate his leavecredits and opts for its commutation upon his resignation or separation fromemployment, his cause of action to claim the whole amount of his accumulatedservice incentive leave shall arise when the employer fails to pay such amount atthe time of his resignation or separation from employment.

Applying Article 291 of the Labor Code in light of this peculiarity of theservice incentive leave, we can conclude that the three (3)-year prescriptive

period commences, not at the end of the year when the employee becomesentitled to the commutation of his service incentive leave, but from the time whenthe employer refuses to pay its monetary equivalent after demand of commutationor upon termination of the employees services, as the case may be.

The above construal of Art. 291, vis--vis the rules on service incentiveleave, is in keeping with the rudimentary principle that in the implementation andinterpretation of the provisions of the Labor Code and its implementingregulations, the workingmans welfare should be the primordial and paramount
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consideration.[18]The policy is to extend the applicability of the decree to agreater number of employees who can avail of the benefits under the law, whichis in consonance with the avowed policy of the State to give maximum aid and

protection to labor.[19]

In the case at bar, respondent had not made use of his service incentive

leave nor demanded for its commutation until his employment was terminated bypetitioner. Neither did petitioner compensate his accumulated service incentiveleave pay at the time of his dismissal. It was only upon his filing of a complaintfor illegal dismissal, one month from the time of his dismissal, that respondentdemanded from his former employer commutation of his accumulated leavecredits. His cause of action to claim the payment of his accumulated serviceincentive leave thus accrued from the time when his employer dismissed him andfailed to pay his accumulated leave credits.

Therefore, the prescriptive period with respect to his claim for serviceincentive leave pay only commenced from the time the employer failed tocompensate his accumulated service incentive leave pay at the time of his

dismissal. Since respondent had filed his money claim after only one month fromthe time of his dismissal, necessarily, his money claim was filed within theprescriptive period provided for by Article 291 of the Labor Code.

WHEREFORE, premises considered, the instant petition is herebyDENIED. The assailed Decision of the Court of Appeals in CA-G.R. SP. No.68395 is hereby AFFIRMED. No Costs.

SO ORDERED.

[G.R. No. 112574. October 8, 1998]

MERCIDAR FISHING CORPORATION represented by its PresidentDOMINGO B. NAVAL, petitioner, vs. NATIONAL LABORRELATIONS COMMISSION and FERMIN AGAO,JR., respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorarito set aside the decision, dated August 30,1993, of the National Labor Relations Commission dismissing the appeal of

petitioner Mercidar Fishing Corporation from the decision of the Labor Arbiter inNLRC NCR Case No. 09-05084-90, as well as the resolution dated October 25,1993, of the NLRC denying reconsideration.

This case originated from a complaint filed on September 20, 1990 byprivate respondent Fermin Agao, Jr. against petitioner for illegal dismissal,violation of P.D. No. 851, and non-payment of five days service incentive leavefor 1990. Private respondent had been employed as a bodegero or shipsquartermaster on February 12, 1988. He complained that he had beenconstructively dismissed by petitioner when the latter refused him assignmentsaboard its boats after he had reported to work on May 28, 1990.[1]

Private respondent alleged that he had been sick and thus allowed to go onleave without pay for one month from April 28, 1990 but that when he reported towork at the end of such period with a health clearance, he was told to come backanother time as he could not be reinstated immediately. Thereafter, petitionerrefused to give him work. For this reason, private respondent asked for acertificate of employment from petitioner on September 6, 1990. However, whenhe came back for the certificate on September 10, petitioner refused to issue thecertificate unless he submitted his resignation. Since private respondent refusedto submit such letter unless he was given separation pay, petitioner prevented himfrom entering the premises.

[2]

Petitioner, on the other hand, alleged that it was private respondent whoactually abandoned his work. It claimed that the latter failed to report for work

after his leave had expired and was, in fact, absent without leave for three monthsuntil August 28, 1998. Petitioner further claims that, nonetheless, it assigned

private respondent to another vessel, but the latter was left behind on September1, 1990. Thereafter, private respondent asked for a certificate of employment onSeptember 6 on the pretext that he was applying to another fishing company. OnSeptember 10, 1990, he refused to get the certificate and resign unless he wasgiven separation pay.

[3]

On February 18, 1992, Labor Arbiter Arthur L. Amansec rendered adecision disposing of the case as follows:
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ACCORDINGLY, respondents are ordered to reinstate complainantwith backwages, pay him his 13th month pay and incentive leave payfor 1990.

All other claims are dismissed.

SO ORDERED.

Petitioner appealed to the NLRC which, on August 30, 1993, dismissed theappeal for lack of merit. The NLRC dismissed petitioners claim that it cannot beheld liable for service incentive leave pay by fishermen in its employ as the lattersupposedly are field personnel and thus not entitled to such pay under theLabor Code.

[4]

The NLRC likewise denied petitioners motion for reconsideration of itsdecision in its order dated October 25, 1993.

Hence, this petition. Petitioner contends:

I

THE RESPONDENT COMMISSION PALPABLY ERRED IN RULING ANDSUSTAINING THE VIEW THAT FISHING CREW MEMBERS, LIKEFERMIN AGAO, JR., CANNOT BE CLASSIFIED AS FIELD PERSONNELUNDER ARTICLE 82 OF THE LABOR CODE.

II

THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN ITUPHELD THE FINDINGS OF THE LABOR ARBITER THAT HEREINPETITIONER HAD CONSTRUCTIVELY DISMISSED FERMIN AGAO, JR.,FROM EMPLOYMENT.

The petition has no merit.

Art. 82 of the Labor Code provides:

ART. 82. Coverage. - The provisions of this Title [WorkingConditions and Rest Periods] shall apply to employees in allestablishments and undertakings whether for profit or not, but not to

government employees, field personnel, members of the family of theemployer who are dependent on him for support, domestic helpers,

persons in the personal service of another, and workers who are paidby results as determined by the Secretary of Labor in appropriateregulations.

. . . . . . . . . .

Field personnel shall refer to non-agricultural employees whoregularly perform their duties away from the principal place of

business or branch office of the employer and whose actual hours ofwork in the field cannot be determined with reasonable certainty.

Petitioner argues essentially that since the work of private respondent isperformed away from its principal place of business, it has no way of verifyinghis actual hours of work on the vessel. It contends that private respondent andother fishermen in its employ should be classified as field personnel who haveno statutory right to service incentive leave pay.

In the case of Union of Filipro Employees (UFE) v. Vicar,[5]

this Courtexplained the meaning of the phrase whose actual hours of work in the fieldcannot be determined with reasonable certainty in Art. 82 of the Labor Code, asfollows:

Moreover, the requirement that actual hours of work in the fiel dcannot be determined with reasonable certainty must be read inconjunction with Rule IV, Book III of the Implementing Rules which

provides:

Rule IV Holidays with Pay

Section 1. Coverage - This rule shall apply to all employees

except:. . . . . . . . . .

(e) Field personnel and other employees whosetimeandperformance is unsupervised by the employerxxx(Italics supplied)

While contending that such rule added another element not found inthe law (Rollo, p. 13), the petitioner nevertheless attempted to showthat its affected members are not covered by the abovementionedrule. The petitioner asserts that the companys sales personnel are
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strictly supervised as shown by the SOD (Supervisor of the Day)schedule and the company circular dated March 15, 1984 (Annexes 2and 3,Rollo, pp. 53-55).

Contrary to the contention of the petitioner, the Court finds that theaforementioned rule did not add another element to the Labor Code

definition of field personnel. The clause whose time and performanceis unsupervised by the employer did not amplify but merelyinterpreted and expounded the clause whose actual hours of work inthe field cannot be determined with reasonable certainty. The formerclause is still within the scope and purview of Article 82 whichdefines field personnel. Hence, in deciding whether or not anemployees actual working hours in the field can be determined withreasonable certainty, query must be made as to whether or not suchemployees time and performance is constantly supervised by theemployer.[6]

Accordingly, it was held in the aforementioned case that salesmen of Nestle

Philippines, Inc. were field personnel:It is undisputed that these sales personnel start their field work at 8:00a.m. after having reported to the office and come back to the office at4:00 p.m. or 4:30 p.m. if they are Makati-based.

The petitioner maintains that the period between 8:00 a.m. to 4:00 or4:30 p.m. comprises the sales personnels working hours which can bedetermined with reasonable certainty.

The Court does not agree. The law requires that the actual hours ofwork in the field be reasonably ascertained. The company has no wayof determining whether or not these sales personnel, even if theyreport to the office before 8:00 a.m. prior to field work and come backat 4:30 p.m., really spend the hours in between in actual field work.[7]

In contrast, in the case at bar, during the entire course of their fishingvoyage, fishermen employed by petitioner have no choice but to remain on boardits vessel. Although they perform non-agricultural work away from petitioners

business offices, the fact remains that throughout the duration of their work theyare under the effective control and supervision of petitioner through the vessels

patron or master as the NLRC correctly held.[8]

Neither did petitioner gravely abuse its discretion in ruling that privaterespondent had constructively been dismissed by petitioner. Such factual finding

of both the NLRC and the Labor Arbiter is based not only on the pleadings of theparties but also on a medical certificate of fitness which, contrary to petitionersclaim, private respondent presented when he reported to work on May 28,1990.[9]As the NLRC held:

Anent grounds (a) and (b) of the appeal, the respondent, in a nutshell,

would like us to believe that the Arbiter abused his discretion (orseriously erred in his findings of facts) in giving credence to thefactual version of the complainant. But it i s settled that (W)henconfronted with conflicting versions of factual matters, the LaborArbiter has the discretion to determine which party deservescredence on the basis of evidence received. [Gelmart Industries(Phils.), Inc. vs. Leogardo, 155 SCRA 403, 409, L-70544, November5, 1987]. And besides, it is settled in this jurisdiction that toconstitute abandonment of position, there must be concurrence of theintention to abandon and some overt acts from which it may beinferred that the employee concerned has no more interest in working(Dagupan Bus Co., Inc. vs. NLRC, 191 SCRA 328), and that the filing

of the complaint which asked for reinstatement plus backwages(Record, p. 20) is inconsistent with respondents defense ofabandonment (Hua Bee Shirt Factory vs. NLRC, 188 SCRA 586).[10]

It is trite to say that the factual findings of quasi-judicial bodies aregenerally binding as long as they are supported substantially by evidence in therecord of the case.[11]This is especially so where, as here, the agency and itssubordinate who heard the case in the first instance are in full agreement as to thefacts.[12]

As regards the labor arbiters award which was affirmed by respondentNLRC, there is no reason to apply the rule that reinstatement may not be orderedif, as a result of the case between the parties, their relation is strained.[13]Even at

this late stage of this dispute, petitioner continues to reiterate its offer to reinstateprivate respondent.

[14]

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Regalado, Acting C.J., (Chairman),Melo, Puno, andMartinez, JJ., concur.
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arbiter found that it was the respondent who refused to go with the family of

Antonio Tan when the corporation transferred office and that, therefore,

respondent could not have been illegally dismissed.

Upon appeal, the National Labor Relations Commission (NLRC) rendered a

Decision,5

dated November 23, 2000, reversing the labor arbiter, ruling, viz:

We are not inclined to uphold the declaration below that complainant is a

domestic helper of the family of Antonio Tan. There was no allegation by

respondent that complainant had ever worked in the residence of Mr. Tan. What

is clear from the facts narrated by the parties is that complainant continuously did

her job as a cook in the office of respondent serving the needed food for lunch

and merienda of the employees. Thus, her work as cook inured not for the benefit

of the family members of Mr. Tan but solely for the individual employees of

respondent.

Complainant as an employee of respondent company is even bolstered by no lessthan the certification dated May 23, 1997 issued by the corporate secretary of the

company certifying that complainant is their bonafide employee. This is a solid

evidence which the Labor Arbiter simply brushed aside. But, such error would

not be committed here as it would be at the height of injustice if we are to declare

that complainant is a domestic helper.

Complainants work schedule and being paid a monthly salary ofP4,000.00 are

clear indication that she is a company employee who had been employed to cater

to the food needed by the employees which were being provided by respondent to

form part of the benefit granted them.

With regard to the issue of illegal dismissal, we believe that there is more reason

to believe that complainant was not dismissed because allegedly she was the one

who refused to work in the new office of respondent. However, complainants

refusal to join the workforce due to poor eyesight could not be considered

abandonment of work or voluntary resignation from employment.

Under the Labor Code as amended, an employee who reaches the age of sixty

years old (60 years) has the option to retire or to separate from the service with

payment of separation pay/retirement benefit.

In this case, we notice that complainant was already 60 years old at the time she

filed the complaint praying for separation pay or retirement benefit and somemoney claims.

Based on Article 287 of the Labor Code as amended, complainant is entitled to be

paid her separation pay/retirement benefit equivalent to one-half (1/2) month for

every year of service. The amount of separation pay would be based on the

prescribed minimum wage at the time of dismissal since she was then underpaid.

In as much as complainant is underpaid of her wages, it behooves that she should

be paid her salary differential for the last three years prior to

separation/retirement.

x x x x x x x x x

WHEREFORE, premises considered, the assailed decision is hereby, SET

ASIDE, and a new one is hereby entered ordering respondents to pay

complainant the following:

1. Salary differential - P12,021.12 2. Service Incentive Leave Pay - 2,650.00 3.

13th Month Pay differential - 1,001.76 4. Separation Pay/retirement benefit -

36,075.00

Total - P51,747.88

SO ORDERED.

Petitioner moved to reconsider this decision but the NLRC denied the motion.

This denial of its motion prompted petitioner to file a Petition for Certiorari6with

the Court of Appeals, docketed as CA-G.R. SP No. 64577, on May 4, 2001,

imputing grave abuse of discretion amounting to lack or excess of jurisdiction on

the part of the NLRC in (1) reversing in toto the decision of the labor arbiter, and

(2) awarding in favor of respondent salary differential, service incentive leave
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pay, 13th month pay differential and separation benefits in the total sum

of P51,747.88.

While the petition was pending with the Court of Appeals, the NLRC rendered

another Decision7in the same case on August 29, 2001. How and why another

decision was rendered is explained in that decision as follows:

On May 17, 2001, complainant filed a Manifestation praying for a resolution of

her Motion for Reconsideration and, in support thereof, alleges that, sometime

December 18, 2000, she mailed her Manifestation and Motion for

Reconsideration registered as Registered Certificate No. 188844; and that the said

mail was received by the NLRC, through a certain Roland Hernandez, on

December 26, 2000. Certifications to this effect was issued by the Postmaster of

the Sta. Mesa Post Office bearing the date May 11, 2001 (Annexes A and B,

Complainants Manifestation).

Evidence in support of complainants having actually filed a Motion forReconsideration within the reglementary period having been sufficiently

established, a determination of its merits is thus, in order.

On the merits, the NLRC found respondents motion for reconsideration

meritorious leading to the issuance of its second decision with the following

dispositive portion:

WHEREFORE, premises considered, the decision dated November 23, 2000, is

MODIFIED by increasing the award of retirement pay due the complainant in the

total amount of SIXTY TWO THOUSAND FOUR HUNDRED THIRTY-

SEVEN and 50/100 (P62,437.50). All other monetary relief so adjudged thereinare maintained and likewise made payable to the complainant.

SO ORDERED.

Petitioner challenged the second decision of the NLRC, including the resolution

denying its motion for reconsideration, through a second Petition for

Certiorari8filed with the Court of Appeals, docketed as CA-G.R. SP No. 68477

and dated January 8, 2002, this time imputing grave abuse of discretion

amounting to lack of or excess of jurisdiction on the part of the NLRC in (1)

issuing the second decision despite losing its jurisdiction due to the pendency of

the first petition for certiorari with the Court of Appeals, and (2) assuming it still

had jurisdiction to issue the second decision notwithstanding the pendency of the

first petition for certiorari with the Court of Appeals, that its second decision has

no basis in law since respondents motion for reconsideration, which was made

the basis of the second decision, was not filed under oath in violation of Section14, Rule VII9of the New Rules of Procedure of the NLRC and that it contained

no certification as to why respondents motion for reconsideration was not

decided on time as also required by Section 10, Rule VI10and Section 15, Rule

VII11of the aforementioned rules.

Upon petitioners motion, the Court of Appeals ordered the consolidation of the

two (2) petitions, on January 24, 2002, pursuant to Section 7, par. b(3), Rule 3 of

the Revised Rules of the Court of Appeals. It summarized the principal issues

raised in the consolidated petitions as follows:

1. Whether respondent is petitioners regular employee or a domestic helper;

2. Whether respondent was illegally dismissed; and

3. Whether the second NLRC decision promulgated during the pendency of the

first petition for certiorari has basis in law.

On January 31, 2005, the Court of Appeals dismissed the consolidated petitions

for lack of merit, finding no grave abuse of discretion on the part of the NLRC in

issuing the assailed decisions.

On the first issue, it upheld the ruling of the NLRC that respondent was a regularemployee of the petitioner since the former worked at the company premises and

catered not only to the personal comfort and enjoyment of Mr. Tan and his

family, but also to that of the employees of the latter. It agreed that petitioner

enjoys the prerogative to control respondents conduct in undertaking her

assigned work, particularly the nature and situs of her work in relation to the

petitioners workforce, thereby establishing the existence of an employer-

employee relationship between them.
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