FIRST DIVISION

[G.R. No. L-31341. March 31, 1976.]

PHILIPPINE AIR LINES EMPLOYEES ASSOCIATION (PALEA) and PHILIPPINE AIR LINES SUPERVISORS' ASSOCIATION (PALSA), petitioners, vs. PHILIPPINE AIR LINES, INC., respondent.

[G.R. No. L-31343. March 31, 1976.]

PHILIPPINE AIR LINES, INC., petitioner, vs. PHILIPPINE AIR LINES EMPLOYEES ASSOCIATION, PHILIPPINE AIR LINES SUPERVISORS ASSOCIATION and the COURT OF INDUSTRIAL RELATIONS, respondents.

Mariano V. Ampil, Jr., Vicente T. Ocampo and Casiano P. Laguidon and Edwin G. Lagayada for petitioners in L-31341.

Siguion Reyna, Montecillo, Belo & Ongsiako for respondent in L-31341.

Siguion Reyna, Montecillo, Belo & Ongsiako for petitioner in L-31343.

Mariano V. Ampil, Jr. and Vicente T. Ocampo for respondent Philippine Air Lines Employees Association PALSA, ACAP and PALEA.

Casiano P. Laguidon and Edwin G. Lagayada for respondent PALSA.

SYNOPSIS

In the dispute between PAL and its two unions, the PALEA and the PALSA over the method of computing the basic and hourly rate of monthly-salaried employees the Industrial Court declared PAL's formula legal and proper. The unions moved for reconsideration, attributing error to PAL's wage formula, particularly in the use of 365 days as divisor for this would necessarily include off-days which, under the terms of the collective bargaining agreements entered into between the parties, were not paid days. A reversal of the decision was obtained but the industrial court ordered computation of pay differentials effective only July 1, 1957. From this resolution, both parties appealed, PAL contending that respondent court erred in holding that its formula for determining the basic daily or hourly rate of its monthly-salaried employees was not correct; that the unions, by their long period of consent and inaction, are estopped and barred from questioning the long-adopted formula; and that in the recovery of the pay differential, the three-year prescriptive period provided in the Eight-Hour Labor Law should apply. The unions appealed from that portion of the respondent court's resolution making the payment of the adjudicated differentials only from July 1, 1957, contending that because their claim is based on written contracts, i. e., the collective bargaining agreements, the differentials should be effective ten years from the filing of their original complaint, or from February 14, 1953.

The Supreme Court held that the divisor in computing an employee's basic daily rate should be the actual working days in a year; that the long silence of the PAL employees relative to the adopted formula of their employer was innocent silence which cannot place them in estopped and that since the

union members' claim anchored on the written contracts between the litigants, the ten-year prescriptive period provided by Article 1144 (1) of the New Civil Code should govern.

Resolution affirmed with modification.

SYLLABUS

1. LABOR RELATIONS; COMPENSATION; OFF-DAYS ARE NOT PAID DAYS. — There should hardly be any doubt that off-days are not paid days. Precisely, off-days are rest days for the worker. He is not required to work on such days. This finds support not only in the principle in labor that the basis of remuneration or compensation is actual service rendered, but in the ever pervading labor spirit aimed at humanizing the conditions of the working man. Since during his off-days an employee is not compelled to work, he cannot, conversely, demand for his corresponding pay. If, however, a worker works on his off-day, our welfare laws duly reward him with a premium higher than what he would receive when he works on his regular working day.

2. ID.; ID.; ID.; METHOD OF COMPUTING EMPLOYEE'S BASIC DAILY RATE. — The divisor in computing an employee's basic daily rate should be that actual working days in a year. The number of off-days are not to be counted precisely because on such off-days, an employee is not required to work.

3. ID.; ID.; ID.; RULING IN NAWASA VS. NWSA CONSOLIDATED UNIONS, ET AL., APPLICABLE TO INSTANT CASE. — PAL maintains that the NAWASA doctrine (enunciated in G.R. No. L-18938, August 31, 1964) should not apply to a public utility like PAL which, from the nature of its operations, requires a whole-year-round, uninterrupted work by personnel. What PAL apparently forgets is that just like it, NAWASA is also a public utility which likewise requires its workers to work the whole year round. NAWASA is a government-owned corporation to which PAL is akin, it being a government-controlled corporations. PAL inked with the represented unions of the employees collective bargaining agreements wherein it bound itself to duly compensate employees working on their off-days. The same situation obtained in the NAWASA case, hence, the settled doctrine should not be disturbed.

4. ID.; ID.; ACQUIESCENCE TO METHOD OF COMPUTATION OF DAILY RATE WILL NOT RESULT IN ESTOPPEL. — PAL's formula of determining daily and hourly rate of pay has been decided and adopted by it unilaterally without the knowledge and express consent of the employees. It was only later on that the employees came to know of the formula's irregularity and its being violative of the collective bargaining agreements previously executed by PAL and the unions. PALSA immediately proposed that PAL use the correct method of competition, which proposal PAL chose to ignore. Clearly, therefore, the long-standing silence by the PAL employees is in truth and in fact innocent silence, which cannot place a party in estoppel. The rationale for this is not difficult to see. The doctrines of estoppel had its origin in equity. As such, its applicability depends, to a large extent, on the circumstance surrounding a particular case. Where, therefore, the neglect or omission alleged to have placed a party in estopped is actually fraught with badges of innocence, estoppel cannot be invoked. In another count, the unilateral adoption by PAL of an irregular wage formula being an act against public policy the doctrine of estoppel cannot give validity to the same.

5. ID.; ID.; CLAIM FOR PAY DIFFERENTIALS; APPLICABLE LAW. — Where the claim involves the strict compliance with the provisions on wage computations embodied in the collective bargaining agreements inked between the litigants, the Civil Code provisions on the prescriptive period in the filing of action based on written contracts should apply. Where the claim for differentials is solely based on the Eight-Hour Labor Law, the three-year prescriptive period fixed therein will apply.

6. ID.; ID.; ID.; CONSTRUCTION IN FAVOR OF LABOR. — Where there is doubt as to what labor legislation to apply to the grievances of the employees, that legislation which would enhance the right of the workers should be followed, consonant with the express pronouncement of the New Civil Code that: "In case of doubt, all labor legislation and labor contracts should be construed in favor of the safety and decent living of he laborer."

D E C I S I O N

MAKASIAR, J p:

Before US are consolidated petitions to review the Court of Industrial Relations en banc resolution dated October 9, 1969 in CIR Case No 43-IPA.

In G.R. No L-31341 (PALEA vs. PAL), petitioners question the date of effectivity of the adjudicated pay differentials due to the monthly-salaried employees of Philippine Air Lines, Inc.

In G.R. No. L-31343 (PAL vs. PALEA), petitioner assails the reversal by the Court of Industrial Relations of its earlier resolution on the method employed by the Philippine Air Lines in computing the basic daily and hourly rate of its monthly-salaried employees.

On February 14, 1963, the Philippine Air Lines Employees' Association (PALEA) and the Philippine Air Lines Supervisors' Association (PALSA) — petitioners in G.R. No. L-31341 and respondents in G.R. No. 31343 — commenced an action against the Philippine Air Lines (PAL) in the Court of Industrial Relations, praying that PAL be ordered to revise its method of computing the basic daily and hourly rate of its monthly-salaried employees, and necessarily, to pay them their accrued salary differentials.

Sought to be revised is PAL's formula in computing wages of its employees:

Monthly salary x 12

———————— = x (Basic daily rate)

365 (No. of calendar

days in a year)

x

——— = Basic hourly rate

8

The unions would like PAL to modify the above formula in this wise:

Monthly salary x 12

———————— = x (Basic daily rate)

No. of actual working

days

x

——— = Basic hourly rate

8

On May 23, 1964, the Court of Industrial Relations, through Presiding Judge Jose S. Bautista, issued an order denying the unions' prayer for a modified wage formula. Pertinent portion of the order reads:

"On the issue of rate of pay, PALSA and PALEA seek to change the long standing method in PAL of computing the basic daily and hourly rate of monthly salaried employees for the purpose of determining overtime pay, Sunday and legal holiday premium pay, night differential pay, vacation and sick leave pay, to wit, the monthly salary multiplied by 12 and dividing the product thereof by 365 and then the quotient by 8. PALEA and PALSA claim that the method of computing the basic daily and hourly rate of monthly salaried employees of PAL prior to the implementation of the 40-hour week schedule in PAL should be by dividing the monthly salary by 26 working days, and after the 40-hour week schedule, by dividing the monthly salary by 20 working days, and then dividing the quotient thereof in each case by 8. From the records, however, it appears that for many years since 1952, and even previously, PAL has been consistently and regularly determining the basic and hourly rates of monthly salaried employees by multiplying the monthly salary by 12 months and dividing the product by 365 days to arrive at the basic daily rate, and dividing the quotient by 8 to compute the basic hourly rate. There has been no attempt to revise this formula notwithstanding the various negotiations PAL had with the unions ever since its operations, and it was only on July 18, 1962, when PALSA, for the first time, proposed that it be changed in accordance with what is now alleged in the petition. This, however, was a mere proposal by PALSA for the adoption of a new formula; it was not a demand for the application of a formula claimed to be correct under the law. Under this circumstance, PALSA and PALEA are estopped from questioning the correctness and propriety of PAL's method of determining the basic hourly and daily rate of pay of its monthly salaried personnel, and considering the long period of time that elapsed before they brought their petition, are barred from insisting or demanding a different rate of pay formula.

"xxx xxx xxx

"Upon the foregoing, the Court, therefore, declares PAL's method of computing the basic daily and hourly rate of its monthly salaried employees as legal and proper, and denies the petition of PALSA and PALEA.

"xxx xxx xxx"

(pp. 47-48, 49, rec. G.R. No. L-31343).

On May 30, 1964, complaining unions promptly moved for the reconsideration of the above-said order (p. 51, rec. G.R. No. L-31343).

On June 9, 1964, the unions filed their memorandum in support of their motion for reconsideration alleging that the questioned order is (a) contrary to law, and (b) contrary to evidence adduced during the trial (p. 53, rec., G.R. No. L-31343).

The unions attributed error to PAL's wage formula, particularly in the use of 365 days as divisor. The unions contended that the use of 365 days as divisor would necessarily include off-days which, under the terms of the collective bargaining agreements entered into between the parties, were not paid days. This is so since for work done on an off-day, an employee was paid 100% plus 25% or 100% plus 37 1/2% of his regular working hour rate.

On the issue of prescription, the unions pointed out:

"With respect to the period of prescription, it is clear that since the claim arises from the written contracts or collective bargaining agreements between the petitioner unions and the PAL, the action thereon prescribes in ten years from the time the right of action accrues, in accordance with Article 1144 of the New Civil Code. . . ." (p. 68, rec., G.R. No. L-31343).

On June 26, 1964, the Philippine Air Lines answered point by point the unions' memorandum, in a prompt reply.

On October 9, 1969, the Court of Industrial Relations, through Presiding Judge Arsenio I. Martinez, ordered the reversal of its decision dated May 23, 1964 and sustained the unions' method of wage computation.

The industrial court, however, ordered the computation of pay differentials in accordance with the sustained method of computation effective only July 1, 1957.

Said the Court of Industrial Relations in this regard:

". . . In this connection, however, it will be noted as previously stated, that this case was considered as an incident of Case No. 39-IPA, in which the issues involved were related to the application to the respondent PAL of the 40-Hour Week Law (Rep. Act 1880) from the date of its effectivity July 1, 1957 . . .

"This Court therefore believes that in justice and equity and substantial merits of the case, the aforesaid pay differentials due to the employees involved herein by the application of the correct method of computation of the rate of pay should be paid by the respondent also beginning July 1, 1957" (p. 117, rec., G.R. No. L-31343).

From the above resolution, both parties appealed to this COURT. The Philippine Air Lines filed its appeal petition on December 13, 1969, while PALEA filed its petition for review on certiorari on January 3, 1970.

I

For easy comprehension, WE start with the Philippine Air Lines, Inc. versus Philippine Air Lines Employees Association, Philippine Air Lines Supervisors Association, and the Court of Industrial Relations, G.R. No. L-31343.

In this appeal, PAL emphasizes three assignments of error, to wit:

1. RESPONDENT CIR ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT THE METHOD OF COMPUTATION USED BY PAL IN DETERMINING THE BASIC DAILY OR HOURLY RATE OF ITS MONTHLY SALARIED EMPLOYEES WHICH IS:

MONTHLY SALARY x 12

———————— = x (BASIC DAILY RATE)

365 (NO. OF CALENDAR

DAYS IN A YEAR)

x

——— = BASIC HOURLY RATE

8

IS NOT CORRECT, CONSIDERING THAT PAL, A PUBLIC UTILITY WHERE THERE IS WORK EVERYDAY OF THE WEEK FOR MANY YEARS EVEN BEFORE REPUBLIC ACT 602 AND WITH THE CONSENT AND APPROVAL OF THE EMPLOYEES, CONSISTENT WITH SECTION 19 OF REPUBLIC ACT 602 PROHIBITING REDUCTION OF WAGES FOR OFF DAYS — WHICH WAS SUSTAINED BY THIS HONORABLE COURT IN AUTOMOTIVE PARTS & EQUIPMENT CO., INC. VS. JOSE B. LINGAD, G.R. NO. L-26406, OCTOBER 31, 1969 — HAS BEEN TREATING OFF-DAYS, SUCH AS SATURDAYS, SUNDAYS, COMPANY OBSERVED HOLIDAYS OR ANY OTHER DESIGNATED HOLIDAYS AS PAID DAYS.

2. RESPONDENT CIR ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN NOT FINDING THAT RESPONDENT UNIONS, BY THEIR LONG PERIOD OF CONSENT, ACQUIESCENCE, INACTION AND ACCEPTANCE OF BENEFITS THEREUNDER, ARE ESTOPPED AND BARRED FROM CLAIMING THAT PAL'S FORMULA FOR DETERMINING THE BASIC DAILY AND HOURLY RATE OF PAY IS INCORRECT.

3. RESPONDENT CIR ERRED AND ACTED IN EXCESS OF ITS JURISDICTION IN SENTENCING PAL TO PAY DIFFERENTIALS FOR OVERTIME WORK, NIGHTWORK, HOLIDAY AND SUNDAY PAY FROM JULY 1, 1957 CONSIDERING THAT UNDER THE THREE-YEAR PRESCRIPTIVE PERIOD PROVIDED IN SECTION 7-a OF COMMONWEALTH ACT NO. 444, AS AMENDED, THE EIGHT-HOUR LABOR LAW, RESPONDENT UNIONS,

ASSUMING THEY HAD ANY CAUSE OF ACTION, COULD RECOVER ONLY FROM FEBRUARY 14, 1960 UP TO THE PRESENT SINCE RESPONDENT UNIONS FILED THEIR ACTION ONLY ON FEBRUARY 14, 1963.

A.

PAL's maiden argument has a strong tendency to mislead. In an effort to emphasize that off-days are paid days and therefore should be reckoned with in determining the divisor for computing daily and hourly rate, PAL leans heavily on what it considers as additional payment of 125% or 137 1/2%, as the case may be, of an employee's basic hourly rate, given to a worker who worked on his off-day. PAL would like us to believe that the word "additional" all but accentuates the existence of a regular basic rate; otherwise, the 125% or 137 1/2% shall be in addition to what?

The industrial court, however, had this to say:

"Moreover, it will be noted that before September 4, 1961, a monthly salaried employee of PAL had to work 304 days only in a year, and after said date, he had to work only 258 days in a year, to be entitled to his equivalent yearly salary. When he worked on his off-day, he was paid accordingly (125% or 137%), indicating that his off-days were not with pay. It seems illogical for said employee to be paid 125% or 137 1/2% of his basic daily rate, if such off-days are already with pay, as indicated by the company" (p. 107, rec., G.R. No. L-31343, emphasis supplied).

WE agree.

There should hardly be any doubt that off-days are not paid days. Precisely, off-days are rest days for the worker. He is not required to work on such days. This finds support not only in the basic principle in labor that the basis of remuneration or compensation is actual service rendered, but in the ever-pervading labor spirit aimed at humanizing the conditions of the working man.

Since during his off-days an employee is not compelled to work, he cannot, conversely, demand for his corresponding pay. If, however, a worker works on his off-day, our welfare laws duly reward him with a premium higher than what he would receive when he works on his regular working day.

Such being the case, the divisor in computing an employee's basic daily rate should be the actual working days in a year. The number of off-days are not to be counted precisely because on such off-days, an employee is not required to work.

Simple common sense dictates that should an employee opt not to work — which he can legally do — on an off-day, and for such he gets no pay, he would be unduly robbed of a portion of his legitimate pay if and when in computing his basic daily and hourly rate, such off-day is deemed subsumed by the divisor. For it is elementary in the fundamental process of division that with a constant dividend, the bigger your divisor is, the smaller your quotient will be.

It bears emphasis that OUR view above constitutes the rationale behind the landmark ruling, surprisingly, by the same trial Judge Jose S. Bautista of the Court of Industrial Relations, in National

Waterworks and Sewerage Authority vs. NWSA Consolidated Unions, et al., (G.R. No. L-18938, August 31, 1964, 11 SCRA 766, 783-784), to which decision WE gave OUR affirmance.

PAL maintains that the NAWASA doctrine should not apply to a public utility like PAL which, from the nature of its operations, requires a whole-year-round, uninterrupted work by personnel. What PAL apparently forgets is that just like it, NAWASA is also a public utility which likewise requires its workers to work the whole year round. Moreover, the NAWASA is a government-owned corporation — to which PAL is akin, it being a government-controlled corporation.

As will later be stated herein, PAL inked with the representative unions of the employees collective bargaining agreements wherein it bound itself on duly compensate employees working on their off-days. The same situation obtained in the NAWASA case, wherein WE held:

"And in the collective bargaining agreement entered into between the NAWASA and respondent unions it was agreed that all existing benefits enjoyed by the employees and laborers prior to its effectivity shall remain in force and shall form part of the agreement, among which certainly is the 25% additional compensation for work on Sundays and legal holidays theretofore enjoyed by said laborers and employees. It may, therefore, be said that while under Commonwealth Act No. 444 a public utility is not required to pay additional compensation to its employees and workers for work done on Sundays and legal holidays, there is, however, no prohibition for it to pay such additional compensation if it voluntarily agrees to do so. The NAWASA committed itself to pay this additional compensation. It must pay not because of compulsion of law but because of contractual obligation." (11 SCRA 766, 776).

The settled NAWASA doctrine should not be disturbed.

B.

PAL also vigorously argues that the unions' long standing silence with respect, and acquiescence, to PAL's method of computation has placed them in estoppel to impugn the correctness of the questioned wage formula. PAL furthermore contends that laches has likewise set in precisely because of such long-standing inaction.

Our jurisprudence on estoppel is, however, to the effect that:

". . . (I)t is meet to recall that 'mere innocent silence will not work estoppel. There must also be some element of turpitude or negligence connected with the silence by which another is misled to his injury' (Civil Code of the Philippines by Tolentino, Vol. IV, p. 600) . . ." [Beronilla vs. GSIS, G.R. No. L-21723, Nov. 26, 1970, 36 SCRA 44, 46, 55, emphasis supplied].

In the cases before US, it is not denied that PAL's formula of determining daily and hourly rate of pay has been decided and adopted by it unilaterally without the knowledge and express consent of the employees. It was only later on that the employees came to know of the formula's irregularity and its being violative of the collective bargaining agreements previously executed by PAL and the unions. Precisely, PALSA immediately proposed that PAL use the correct method of computation, which proposal PAL chose to ignore.

Clearly, therefore, the alleged long-standing silence by the PAL employees is in truth and in fact innocent silence, which cannot place a party in estoppel.

The rationale for this is not difficult to see. The doctrine of estoppel had its origin in equity. As such, its applicability depends, to a large extent, on the circumstances surrounding a particular case. Where, therefore, the neglect or omission alleged to have placed a part in estoppel is actually fraught with badges of innocence, estoppel cannot be invoked. This was the essence of OUR ruling in the case of Mirasol vs. Municipality of Tabaco (43 Phil. 610, 614). And this, in quintessence, was the compelling reason why in Lodovica vs. Court of Appeals (L-29678, July 18 1975, 65 SCRA, 154, 158), WE held that a party who had no knowledge of or gave no consent to a transaction may not be estopped by it.

Furthermore, jurisprudence likewise fortifies the position that in the interest of public policy, estoppel and laches cannot arrest recovery of overtime compensation. The case of Manila Terminal Co. vs. CIR (G.R. No. L-9265, April 29, 1957, 91 Phil. 625), is squarely in point. In this case WE intoned:

"The principle of estoppel and laches cannot well be invoked against the Association. In the first place, it would be contrary to the spirit of the Eight-Hour Labor Law, under which, as already seen, the laborers cannot waive their right to extra compensation. In the second place, the law principally obligates the employer to observe it, so much so that it punishes the employer for its violation and leaves the employee or laborer free and blameless. In the third place, the employee or laborer is in such a disadvantageous position as to be naturally reluctant or even apprehensive in asserting any claim which may cause the employer to devise a way for exercising his right to terminate the employment.

"If the principle of estoppel and laches is to be applied, it may bring about a situation, whereby the employee or laborer, who cannot expressly renounce their right to extra compensation under the Eight-Hour Labor Law, may be compelled to accomplish the same thing by mere silence or lapse of time, thereby frustrating the purpose of the law by indirection" (91 Phil. 625, 633, emphasis supplied).

In another count, the unilateral adoption by PAL of an irregular wage formula being an act against public policy, the doctrine of estoppel cannot give validity to the same (Auyong Hian vs. Court of Tax Appeals, 59 SCRA 110, 112).

II

G.R. No. L-31341 is an appeal from that portion of the en banc resolution of the Court of Industrial Relations dated October 9, 1969 in case 43-IPA making the payment of the adjudicated pay differentials effective only from July 1, 1957.

In their lone assignment of error, the unions argue that pay differentials should be effective February 14, 1953, or ten (10) years from the date of the filing of their original complaint; because the claim for pay differentials is based on written contracts — i.e., the collective bargaining agreements between PAL and the employees' representative unions — and under Article 1144(1) of the Civil Code, actions based on written contracts prescribe in ten ( 10) years.

PAL, on the other hand, maintains that the employees' claim for pay differentials is "an action to enforce a cause of action under the Eight-Hour Labor Law (CA No. 444, as amended)" (p. 592, rec., G.R. No. L-31341). As such, the applicable provision is Section 7-a of CA No. 444, which reads:

"Sec. 7-a. Any action to enforce any cause of action under this Act shall be commenced within three years after the cause of action accrued, otherwise such action shall be forever barred; provided, however, that actions already commenced before the effective date of this Act shall not be affected by the period herein prescribed" (As amended by Rep. Act No. 1993, approved June 22, 1957, emphasis supplied).

Moreover, PAL argues that even assuming that the issue calls for the application of Article 1144(1) of the New Civil Code, a general law, still in case of conflict, Commonwealth Act No. 444, as amended, should prevail because the latter is a special law.

WE believe that the present case calls for the application of the Civil Code provisions on the prescriptive period in the filing of actions based on written contracts. The reason should be fairly obvious. Petitioners' claim fundamentally involves the strict compliance by PAL of the provisions on wage computation embodied in the collective bargaining agreements inked between it and the employees' representative unions. These collective bargaining agreements were: the PAL-PALEA collective bargaining agreement of 1952-53; the PAL-PALEA collective bargaining agreement of 1956-59; the PAL-PALEA collective bargaining agreement of 1959-61 (with Article VI as supplement); the PAL-PALEA agreement of September 4, 1961; the PAL-ACAP collective bargaining agreement of 1952-54; the PAL-ACAP collective bargaining agreement of September 6, 1955; the PAL-ACAP collective bargaining agreement of 1959-61; the PAL-PALSA collective bargaining agreement of 1959-62; and the supplementary PAL-PALSA collective bargaining agreement (pp. 54-55, rec., G.R. No. L-31343).

The three-year prescriptive period fixed in the Eight-Hour Labor Law (CA No. 444, as amended) will apply, if the claim for differentials for overtime work is solely based on said law, and not on a collective bargaining agreement or any other contract. In the instant cases, the claim for overtime compensation is not so much because of Commonwealth Act No. 444, as amended, but because the claim is a demandable right of the employees, by reason of the above-mentioned collective bargaining agreements. That is precisely why petitioners did not make any reference as to the computation for overtime work under the Eight-Hour Labor Law (Secs. 3 and 4, CA No. 444), and instead insisted that work computation provided in the collective bargaining agreements between the parties be observed. Since the claim for pay differentials is principally anchored on the written contracts between the litigants, the ten-year prescriptive period provided by Art. 1144(1) of the New Civil Code should govern. (General Insurance and Surety Corp. vs. Republic, L-13873, January 31, 1963, 7 SCRA 4; Heirs of the Deceased Juan Sindiong vs. Committee on Burnt Areas and Improvements of Cebu, L-15975, April 30, 1964, 10 SCRA 715; Conde vs. Cuenca and Malaga, L-9405, July 31, 1956; Veluz vs. Veluz, L-23261, July 31, 1968, 24 SCRA 559).

Finally, granting arguendo that there is doubt as to what labor legislation to apply to the grievances of the employees in the cases at bar, it is OUR view that legislation which would enhance the plight of the workers should be followed, consonant with the express pronouncement of the New Civil Code that:

"In case of doubt, all labor legislation and labor contracts should be construed in favor of the safety and decent living of the laborer" (Article 1702).

WHEREFORE, THE APPEALED RESOLUTION IS HEREBY AFFIRMED, WITH THE MODIFICATION THAT PAY DIFFERENTIALS BE PAID EFFECTIVE FEBRUARY 14, 1953. WITH COSTS AGAINST PHILIPPINE AIR LINES, INC. IN BOTH CASES.

Teehankee, (Chairman), Esguerra, Muñoz Palma and Martin, JJ., concur.

SECOND DIVISION

G.R. No. L-63578 July 11, 1985

PHlLIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA) CECILIO V. BAUTISTA, PANTALEON ARAYATA, CATALINO BAÑEZ LUCIO

CANTILLO, ROBERTO ESPINELI, JASMIN A. ILANO, ALFONSO JOSE, ROMULO NERY, ET AL., petitioners,

-versus-NATIONAL LABOR RELATIONS COMMISSION (NLRC), PHILIPPINE

AIRLINES, INC. (PAL), BENIGNO TODA JR. and GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), respondents.

Siguion Reyna, Montecillo & Ongsiako Law Office for respondent B. Toda, Jr.

 

MAKASIAR, J.:

This petition for certiorari with preliminary injunction seeks to annul the resolution dated May 31, 1977 of respondent National Labor Relations Commission, the dispositive portion of which reads as follows:

WHEREFORE, the Commission has resolved, as it hereby resolves, to recall and declare inoperative the Partial Writ of Execution dated December 6, 1976, and affirm the Order dated March 4, 1977 with

modification that only pay differentials beginning February 14, 1953 up to September 8, 1963 be ordered paid.

SO ORDERED.

It appears that on March 31, 1976 this Court promulgated a decision in L-31341 (Philippine Air Lines Employees Association (PALEA) et al. vs. Philippine Air Lines Inc.) and L-31-343 (Philippine Air Lines Inc. vs. Philippine Air Lines Employees Association, et al.) affirming the resolution of the defunct Court of Industrial Relations sustaining PALEA's method of computing the basic daily and hourly rate of PAL's monthly salaried employees. to wit:

Monthly Salary x 12 = x (Basic daily rate)No. of Actual Working Days

x = Basic hourly rate 8

with modification that the pay differentials be paid effective February 14, 1953 instead of July 1, 1957.

Both parties filed their respective motions for reconsideration. PAL insisted that the method of computation of the basic daily rate of pay should be—to divide the yearly salary by 365 days, to wit:

Monthly Salary x 12 = x (Basic daily wage) 365 days (No. of calendardays in a year)

x = Basic hourly rate

8

PALEA, on the other hand, prayed that the pay differentials to be paid to the employees involved should bear interest to be fixed by the Court from the date of the filing of the complaint on February 14,1963.

This Court denied both motions for lack of merit and declared the denial as final in the resolution of August 20, 1976. Entry of judgment was made on August 29, 1976.

On September 27, 1976 PALEA filed with the NLRC a "motion for immediate execution and payments of benefits under the award and motion for immediate verification, examination and computation and payment of back differentials."

After hearing, Labor Arbiter Francisco delos Reyes issued a partial writ of execution dated December 6, 1976 directing the Deputy Sheriff of the NLRC to implement, beginning October 1, 1976, the CIR resolution as affirmed with modification by the Supreme Court.

On March 4, 1977, Labor Arbiter delos Reyes granted the second portion of the motion which was filed on September 27, 1976 "for immediate verification, examination and computation and payment of back differential," and ordered the computation of differential from February 14, 1953 up to September 30, 1976.

On March 28,1977 PAL filed with the NLRC an appeal with prayer to quash the order of March 4, 1977, and a motion to stay execution of the partial writ of execution and the aforesaid order of March 4, 1977.

On May 31, 1977, the NLRC issued the questioned resolution, The NLRC reasoned out that the application of the adjudged correct method or formula as adopted in the Supreme Court's decision was based on the specific provisions of the collective bargaining agreement still existing from 1952 until its expiry on September 8, 1963; and that beginning September 9, 1963 the aforesaid formula ceased to be effective.

On March 29, 1983 or after a lapse of about six (6) years, the present petition for certiorari was filed before this Court assailing the said resolution.

Petitioners maintain that this Court in its decision of March 1976 had already settled the correct method or formula of computation of the basic daily rate of pay of PAL's monthly salaried employees in determining their overtime pay, night differential pay, holiday premium pay, vacation and sick leave pay effective from February 14, 1953. Thus, when the NLRC declared that the said method or formula ceased to be effective on September 8, 1963, the consequence would be to revert to The use of what had been adjudged by this Court as an erroneous method of computation of the basic daily rate of pay, by dividing the yearly salary by 365 days.

The petition should be dismissed.

Under the terms of the collective bargaining agreements entered into between the parties from 1952 up to September 8, 1963, which were the subject matter of L-31341 and L-31343, off-days were not paid days. Hence, the unions contested the PAL's wage formula of computing the basic daily rate of the latter's monthly- salaried

employees by using 365 days as divisor thus including even the off-days, In Our decision of March 31, 1976 in said cases, We categorically ruled that "off-days are not paid days. Such being the case, the divisor in computing an employee's basic daily rate should be the actual working days in a year. The number of off- days are not to be counted precisely because on such off-days, an employee is not required to work." It should be made clear, however, that such pronouncement was based on the provisions of the collective bargaining agreements existing from 1952 until September 8, 1963. As alleged by the respondents and found out by the respondent Commission and which was not disputed by petitioners, after September 8, 1963, there was a change of collective bargaining agreement. And the parties incorporated in the subsequent collective bargaining agreements provisions considering such "off-days" as already "paid". Hence, the method of computing the basic and hourly rate of respondent PAL's monthly-salaried employees which We decreed in G.R. No. L-31341 and No. L-31343 is no longer applicable after September 8, 1963.

WE agree with the respondent Commission in limiting the application of Our decision of March 31, 1976 from February 14, 1953 to September 8, 1963. The respondent Commission ruled in this wise:

To our mind, the change of the CBA provisions interpreted by the Court can lead to no other conclusion than that the Decision is coterminous with the last CBA containing the interpreted provision. This must be so. For, the set of facts which justified the assumption that holidays and off days were not paid, no longer obtains. The facts which form the basis of the CIR en bancs disposition is clear in pages 9 and 10 of the Resolution itself.

xxx xxx xxx

What is more, the Supreme Court final decision in this proceeding, affirming the Resolution of the CIR sitting en banc, in adopting the correct formula for determining the basic daily and hourly rate of monthly rate of monthly salaried PAL employees pursuant to specific provisions of the successive CBA's from 1952 up to that which expired on September 8, 1963, specifically anchored on the assumption that 'off days' are not yet paid, could not possibly have intended to unreasonably extend the effects of the same Decision to subsequent period of time covered by subsequent CBA's wherein the parties, obviously to prevent repetition of the same troubles arising from their different interpretations leading to the present dispute, precisely incorporated provisions clearly considering such 'off days' as already paid

In other words, by any stretch of valid argumentation, logic communes with reason to support the conclusion that the coverage of the CIR en banc resolution as affirmed by the Supreme Court is Limited to the period from February 14, 1953 to September 8, 196,3. Clearly then, beginning September 9, 1963, the adjudged formula in computing the daily and hourly rate of monthly salaried PAL employees ceased to be effective. A fortiori, there exist no valid rationale for the questioned Partial Writ of Execution (emphasis supplied: pp. 123-127, rec.).

Finally, petitioners' cause of action questioning respondent Commission's resolution of May 31, 1977 is almost six (6) years late as the present petition for certiorari was filed only on March 29, 1983. The questioned resolution having long become final and executory, this Court has no jurisdiction to entertain the present petition.

WHEREFORE, THE PETITION FOR certiorari IS HEREBY DISMISSED FOR LACK OF MERIT. NO COSTS.

SO ORDERED.

Aquino, Concepcion, Jr., Escolin and Cuevas, JJ., concur.

Abad Santos, J., took no part.

SECOND DIVISION

[G.R. No. 146667. January 23, 2007.]

JOHN F. McLEOD, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (First Division), FILIPINAS SYNTHETIC FIBER CORPORATION (FILSYN), FAR EASTERN TEXTILE MILLS, INC., STA. ROSA TEXTILES, INC., (PEGGY MILLS, INC.), PATRICIO L. LIM, and ERIC HU, respondents.

D E C I S I O N

CARPIO, J p:

The Case

This is a petition for review 1 to set aside the Decision 2 dated 15 June 2000 and the Resolution 3 dated 27 December 2000 of the Court of Appeals in CA-G.R. SP No. 55130. The Court of Appeals affirmed with modification the 29 December 1998 Decision 4 of the National Labor Relations Commission (NLRC) in NLRC NCR 02-00949-95.

The Facts

The facts, as summarized by the Labor Arbiter and adopted by the NLRC and the Court of Appeals, are as follows:

On February 2, 1995, John F. McLeod filed a complaint for retirement benefits, vacation and sick leave benefits, non-payment of unused airline tickets, holiday pay, underpayment of salary and 13th month pay, moral and exemplary damages, attorney's fees plus interest against Filipinas Synthetic Corporation (Filsyn), Far Eastern Textile Mills, Inc., Sta. Rosa Textiles, Inc., Patricio Lim and Eric Hu.

In his Position Paper, complainant alleged that he is an expert in textile manufacturing process; that as early as 1956 he was hired as the Assistant Spinning Manager of Universal Textiles, Inc. (UTEX); that he was promoted to Senior Manager and worked for UTEX till 1980 under its President, respondent Patricio Lim; that in 1978 Patricio Lim formed Peggy Mills, Inc. with respondent Filsyn having controlling interest; that complainant was absorbed by Peggy Mills as its Vice President and Plant Manager of the plant at Sta. Rosa, Laguna; that at the time of his retirement complainant was receiving P60,000.00 monthly with vacation and sick leave benefits; 13th month pay, holiday pay and two round trip business class tickets on a Manila-London-Manila itinerary every three years which is convertible to cas[h] if unused; that in January 1986, respondents failed to pay vacation and leave credits and requested complainant to wait as it was short of funds but the same remain unpaid at present; that complainant is entitled to such benefit as per CBA provision (Annex "A"); that respondents likewise failed to pay complainant's holiday pay up to the present; that complainant is entitled to such benefits as per CBA provision (Annex "B"); that in 1989 the plant union staged a strike and in 1993 was found guilty of staging an illegal strike; that from 1989 to 1992 complainant was entitled to 4 round trip business class plane tickets on a Manila-London-Manila itinerary but this benefit not (sic) its monetary equivalent was not given; that on August 1990 the respondents reduced complainant's monthly salary of P60,000.00 by P9,900.00 till November 1993 or a period of 39 months; that in 1991 Filsyn sold Peggy Mills, Inc. to Far Eastern Textile Mills, Inc. as per agreement (Annex "D") and this was renamed as Sta. Rosa Textile with Patricio Lim as Chairman and President; that complainant worked for Sta. Rosa until November 30 that from time to time the owners of Far Eastern consulted with complainant on technical aspects of reoperation of the plant as per correspondence (Annexes "D-1" and "D-2"); that when complainant reached and applied retirement age at the end of 1993, he was only given a reduced 13th month pay of P44,183.63, leaving a balance of P15,816.87; that thereafter the owners of Far Eastern Textiles decided for cessation of operations of Sta. Rosa Textiles; that on two occasions, complainant wrote letters (Annexes "E-1" to "E-2") to Patricio Lim requesting for his retirement and other benefits; that in the last quarter of 1994 respondents offered complainant compromise settlement of only P300,000.00 which complainant rejected; that again complainant wrote a letter (Annex "F") reiterating his demand for full payment of all benefits and to no avail, hence this complaint; and that he is entitled to all his money claims pursuant to law.

On the other hand, respondents in their Position Paper alleged that complainant was the former Vice-President and Plant Manager of Peggy Mills, Inc.; that he was hired in June 1980 and Peggy Mills closed operations due to irreversible losses at the end of July 1992 but the corporation still exists at present; that its assets were acquired by Sta. Rosa Textile Corporation which was established in April 1992 but still remains non-operational at present; that complainant was hired as consultant by Sta. Rosa Textile in November 1992 but he resigned on November 30, 1993; that Filsyn and Far Eastern Textiles are separate legal entities and have no employer relationship with complainant; that respondent Patricio Lim is the President and Board Chairman of Sta. Rosa Textile Corporation; that respondent Eric Hu is a Taiwanese and is Director of Sta. Rosa Textiles, Inc.; that complainant has no cause of action against Filsyn, Far Eastern Textile Ltd., Sta. Rosa Textile Corporation and Eric Hu; that Sta. Rosa only acquired the assets and not the liabilities of Peggy Mills, Inc.; that Patricio Lim was only impleaded as Board Chairman of Sta. Rosa Textile and not as private individual; that while complainant was Vice President and Plant Manager of Peggy Mills, the union staged a strike up to July 1992 resulting in closure of operations due to irreversible losses as per Notice (Annex "1"); that complainant was relied upon to settle the labor problem but due to his lack of attention and absence the strike continued resulting in closure of the company; and losses to Sta. Rosa which acquired its assets as per their financial statements (Annexes "2" and "3"); that the attendance records of complainant from April 1992 to November 1993 (Annexes "4" and "5") show that he was either absent or worked at most two hours a day; that Sta. Rosa and Peggy Mills are interposing counterclaims for damages in the total amount of P36,757.00 against complainant; that complainant's monthly salary at Peggy Mills was P50,495.00 and not P60,000.00; that Peggy Mills, does not have a retirement program; that whatever amount complainant is entitled should be offset with the counterclaims; that complainant worked only for 12 years from 1980 to 1992; that complainant was only hired as a consultant and not an employee by Sta. Rosa Textile; that complainant's attendance record of absence and two hours daily work during the period of the strike wipes out any vacation/sick leave he may have accumulated; that there is no basis for complainant's claim of two (2) business class airline tickets; that complainant's pay already included the holiday pay; that he is entitled to holiday pay as consultant by Sta. Rosa; that he has waived this benefit in his 12 years of work with Peggy Mills; that he is not entitled to 13th month pay as consultant; and that he is not entitled to moral and exemplary damages and attorney's fees.

In his Reply, complainant alleged that all respondents being one and the same entities are solidarily liable for all salaries and benefits and complainant is entitled to; that all respondents have the same address at 12/F B.A. Lepanto Building, Makati City; that their counsel holds office in the same address; that all respondents have the same offices and key personnel such as Patricio Lim and Eric Hu; that respondents' Position Paper is verified by Marialen C. Corpuz who knows all the corporate officers of all respondents; that the veil of corporate fiction may be pierced if it is used as a shield to perpetuate fraud and confuse legitimate issues; that complainant never accepted the change in his position from Vice-President and Plant Manager to consultant and it is incumbent upon respondents to prove that he was only a consultant; that the Deed of Dation in Payment with Lease (Annex "C") proves that Sta. Rosa took over the assets of Peggy Mills as early as June 15, 1992 and not 1995 as alleged by respondents; that complainant never resigned from his job but applied for retirement as per letters (Annexes "E-1", "E-2" and "F"); that documents "G", "H" and "I" show that Eric Hu is a top official of Peggy Mills that the closure of Peggy Mills cannot be the fault of complainant; that the strike was staged on the issue

of CBA negotiations which is not part of the usual duties and responsibilities as Plant Manager; that complainant is a British national and is prohibited by law in engaging in union activities; that as per Resolution (Annex "3") of the NLRC in the proper case, complainant testified in favor of management; that the alleged attendance record of complainant was lifted from the logbook of a security agency and is hearsay evidence; that in the other attendance record it shows that complainant was reporting daily and even on Saturdays; that his limited hours was due to the strike and cessation of operations; that as plant manager complainant was on call 24 hours a day; that respondents must pay complainant the unpaid portion of his salaries and his retirement benefits that cash voucher No. 17015 (Annex "K") shows that complainant drew the monthly salary of P60,000.00 which was reduced to P50,495.00 in August 1990 and therefore without the consent of complainant; that complainant was assured that he will be paid the deduction as soon as the company improved its financial standing but this assurance was never fulfilled; that Patricio Lim promised complainant his retirement pay as per the latter's letters (Annexes "E-1", "E-2" and "F"); that the law itself provides for retirement benefits; that Patricio Lim by way of Memorandum (Annex "M") approved vacation and sick leave benefits of 22 days per year effective 1986; that Peggy Mills required monthly paid employees to sign an acknowledgement that their monthly compensation includes holiday pay; that complainant was not made to sign this undertaking precisely because he is entitled to holiday pay over and above his monthly pay; that the company paid for complainant's two (2) round trip tickets to London in 1983 and 1986 as reflected in the complainant's passport (Annex "N"); that respondents claim that complainant is not entitled to 13th month pay but paid in 1993 and all the past 13 years; that complainant is entitled to moral and exemplary damages and attorney's fees; that all doubts must be resolved in favor of complainant; and that complainant reserved the right to file perjury cases against those concerned.

In their Reply, respondents alleged that except for Peggy Mills, the other respondents are not proper persons in interest due to the lack of employer-employee relationship between them and complainant; that undersigned counsel does not represent Peggy Mills, Inc.

In a separate Position Paper, respondent Peggy Mills alleged that complainant was hired on February 10, 1991 as per Board Minutes (Annex "A"); that on August 19, 1987, the workers staged an illegal strike causing cessation of operations on July 21, 1992; that respondent filed a Notice of Closure with the DOLE (Annex "B"); that all employees were given separation pay except for complainant whose task was extended to December 31, 1992 to wind up the affairs of the company as per vouchers (Annexes "C" and "C-1"); that respondent offered complainant his retirement benefits under RA 7641 but complainant refused; that the regular salaries of complainant from closure up to December 31, 1992 have offset whatever vacation and sick leaves he accumulated; that his claim for unused plane tickets from 1989 to 1992 has no policy basis, the company's formula of employees monthly rate x 314 days over 12 months already included holiday pay; that complainant's unpaid portion of the 13th month pay in 1993 has no basis because he was only an employee up to December 31, 1992; that the 13th month pay was based on his last salary; and that complainant is not entitled to damages. 5

On 3 April 1998, the Labor Arbiter rendered his decision with the following dispositive portion:

WHEREFORE, premises considered, We hold all respondents as jointly and solidarily liable for complainant's money claims as adjudicated above and computed below as follows:

Retirement Benefits (one month salary

for every year of service)

6/80-11/30/93 = 14 years

P60,000 x 14.0 mos. P840,000.00

Vacation and Sick Leave (3 yrs.)

P2,000.00 x 22 days x 3 yrs. 132,000.00

Underpayment of Salaries (3 yrs.)

P60,000-P50,495 = P9,505

P9,505 x 36.0 mos. 342,180.00

Holiday Pay (3 yrs.)

P2,000 x 30 days 60,000.00

Underpayment of 13th month pay (1993) 15,816.87

Moral Damages 3,000,000.00

Exemplary Damages 1,000,000.00

10% Attorney's Fees 138,999.68

TOTAL P5,528,996.55

Unused Airline Tickets (3 yrs.)

(To be converted in Peso upon payment)

$2,450.00 x 3.0 [yrs.] $7,350.00

SO ORDERED. 6

Filipinas Synthetic Fiber Corporation (Filsyn), Far Eastern Textile Mills, Inc. (FETMI), Sta. Rosa Textiles, Inc. (SRTI), Patricio L. Lim (Patricio), and Eric Hu appealed to the NLRC. The NLRC rendered its decision on 29 December 1998, thus:

WHEREFORE, the Decision dated 3 April 1998 is hereby REVERSED and SET ASIDE and a new one is entered ORDERING respondent Peggy Mills, Inc. to pay complainant his retirement pay equivalent to 22.5 days for every year of service for his twelve (12) years of service from 1980 to 1992 based on a salary rate of P50,495.00 a month.

All other claims are DISMISSED for lack of merit.

SO ORDERED. 7

John F. McLeod (McLeod) filed a motion for reconsideration which the NLRC denied in its Resolution of 30 June 1999. 8 McLeod thus filed a petition for certiorari before the Court of Appeals assailing the decision and resolution of the NLRC. 9

The Ruling of the Court of Appeals

On 15 June 2000, the Court of Appeals rendered judgment as follows:

WHEREFORE, the decision dated December 29, 1998 of the NLRC is hereby AFFIRMED with the MODIFICATION that respondent Patricio Lim is jointly and solidarily liable with Peggy Mills, Inc., to pay the following amounts to petitioner John F. McLeod:

1. retirement pay equivalent to 22.5 days for every year of service for his twelve (12) years of service from 1980 to 1992 based on a salary rate of P50,495, a month;

2. moral damages in the amount of one hundred thousand (P100,000.00) Pesos;

3. exemplary damages in the amount of fifty thousand (P50,000.00) Pesos; and

4. attorney's fees equivalent to 10% of the total award.

No costs is awarded.

SO ORDERED. 10

The Court of Appeals rejected McLeod's theory that all respondent corporations are the same corporate entity which should be held solidarily liable for the payment of his monetary claims.

The Court of Appeals ruled that the fact that (1) all respondent corporations have the same address; (2) all were represented by the same counsel, Atty. Isidro S. Escano; (3) Atty. Escano holds office at respondent corporations' address; and (4) all respondent corporations have common officers and key personnel, would not justify the application of the doctrine of piercing the veil of corporate fiction.

The Court of Appeals held that there should be clear and convincing evidence that SRTI, FETMI, and Filsyn were being used as alter ego, adjunct or business conduit for the sole benefit of Peggy Mills, Inc. (PMI), otherwise, said corporations should be treated as distinct and separate from each other.

The Court of Appeals pointed out that the Articles of Incorporation of PMI show that it has six incorporators, namely, Patricio, Jose Yulo, Jr., Carlos Palanca, Jr., Cesar R. Concio, Jr., E. A. Picasso, and Walter Euyang. On the other hand, the Articles of Incorporation of Filsyn show that it has 10 incorporators, namely, Jesus Y. Yujuico, Carlos Palanca, Jr., Patricio, Ang Beng Uh,

Ramon A. Yulo, Honorio Poblador, Jr., Cipriano Azada, Manuel Tomacruz, Ismael Maningas, and Benigno Zialcita, Jr.

The Court of Appeals pointed out that PMI and Filsyn have only two interlocking incorporators and directors, namely, Patricio and Carlos Palanca, Jr.

Reiterating the ruling of this Court in Laguio v. NLRC, 11 the Court of Appeals held that mere substantial identity of the incorporators of two corporations does not necessarily imply fraud, nor warrant the piercing of the veil of corporate fiction.

The Court of Appeals also pointed out that when SRTI and PMI executed the Dation in Payment with Lease, it was clear that SRTI did not assume the liabilities PMI incurred before the execution of the contract.

The Court of Appeals held that McLeod failed to substantiate his claim that all respondent corporations should be treated as one corporate entity. The Court of Appeals thus upheld the NLRC's finding that no employer-employee relationship existed between McLeod and respondent corporations except PMI.

The Court of Appeals ruled that Eric Hu, as an officer of PMI, should be exonerated from any liability, there being no proof of malice or bad faith on his part. The Court of Appeals, however, ruled that McLeod was entitled to recover from PMI and Patricio, the company's Chairman and President.

The Court of Appeals pointed out that Patricio deliberately and maliciously evaded PMI's financial obligation to McLeod. The Court of Appeals stated that, on several occasions, despite his approval, Patricio refused and ignored to pay McLeod's retirement benefits. The Court of Appeals stated that the delay lasted for one year prompting McLeod to initiate legal action. The Court of Appeals stated that although PMI offered to pay McLeod his retirement benefits, this offer for P300,000 was still below the "floor limits" provided by law. The Court of Appeals held that an employee could demand payment of retirement benefits as a matter of right.

The Court of Appeals stated that considering that PMI was no longer in operation, its "officer should be held liable for acting on behalf of the corporation."

The Court of Appeals also ruled that since PMI did not have a retirement program providing for retirement benefits of its employees, Article 287 of the Labor Code must be followed. The Court of Appeals thus upheld the NLRC's finding that McLeod was entitled to retirement pay equivalent to 22.5 days for every year of service from 1980 to 1992 based on a salary rate of P50,495 a month.

The Court of Appeals held that McLeod was not entitled to payment of vacation, sick leave and holiday pay because as Vice President and Plant Manager, McLeod is a managerial employee who, under Article 82 of the Labor Code, is not entitled to these benefits.

The Court of Appeals stated that for McLeod to be entitled to payment of service incentive leave and holidays, there must be an agreement to that effect between him and his employer.

Moreover, the Court of Appeals rejected McLeod's argument that since PMI paid for his two round-trip tickets Manila-London in 1983 and 1986, he was also "entitled to unused airline tickets." The Court of Appeals stated that the fact that PMI granted McLeod "free transport to and from Manila and London for the year 1983 and 1986 does not ipso facto characterize it as regular that would establish a prevailing company policy."

The Court of Appeals also denied McLeod's claims for underpayment of salaries and his 13th month pay for the year 1994. The Court of Appeals upheld the NLRC's ruling that it could be deduced from McLeod's own narration of facts that he agreed to the reduction of his compensation from P60,000 to P50,495 in August 1990 to November 1993.

The Court of Appeals found the award of moral damages for P50,000 in order because of the "stubborn refusal" of PMI and Patricio to respect McLeod's valid claims.

The Court of Appeals also ruled that attorney's fees equivalent to 10% of the total award should be given to McLeod under Article 2208, paragraph 2 of the Civil Code. 12

Hence, this petition.

The Issues

McLeod submits the following issues for our consideration:

1. Whether the challenged Decision and Resolution of the 14th Division of the Court of Appeals promulgated on 15 June 2000 and 27 December 2000, respectively, in CA-G.R. SP No. 55130 are in accord with law and jurisprudence;

2. Whether an employer-employee relationship exists between the private respondents and the petitioner for purposes of determining employer liability to the petitioner;

3. Whether the private respondents may avoid their financial obligations to the petitioner by invoking the veil of corporate fiction;

4. Whether petitioner is entitled to the relief he seeks against the private respondents;

5. Whether the ruling of [this] Court in Special Police and Watchman Association (PLUM) Federation v. National Labor Relations Commission cited by the Office of the Solicitor General is applicable to the case of petitioner; and

6. Whether the appeal taken by the private respondents from the Decision of the labor arbiter meets the mandatory requirements recited in the Labor Code of the Philippines, as amended. 13

The Court's Ruling

The petition must fail.

McLeod asserts that the Court of Appeals should not have upheld the NLRC's findings that he was a managerial employee of PMI from 20 June 1980 to 31 December 1992, and then a consultant of SRTI up to 30 November 1993. McLeod asserts that if only for this "brazen assumption," the Court of Appeals should not have sustained the NLRC's ruling that his cause of action was only against PMI.

These assertions do not deserve serious consideration.

Records disclose that McLeod was an employee only of PMI. 14 PMI hired McLeod as its acting Vice President and General Manager on 20 June 1980. 15 PMI confirmed McLeod's appointment as Vice President/Plant Manager in the Special Meeting of its Board of Directors on 10 February 1981. 16 McLeod himself testified during the hearing before the Labor Arbiter that his "regular employment" was with PMI. 17

When PMI's rank-and-file employees staged a strike on 19 August 1989 to July 1992, PMI incurred serious business losses. 18 This prompted PMI to stop permanently plant operations and to send a notice of closure to the Department of Labor and Employment on 21 July 1992. 19

PMI informed its employees, including McLeod, of the closure. 20 PMI paid its employees, including managerial employees, except McLeod, their unpaid wages, sick leave, vacation leave, prorated 13th month pay, and separation pay. Under the compromise agreement between PMI and its employees, the employer-employee relationship between them ended on 25 November 1992. 21

Records also disclose that PMI extended McLeod's service up to 31 December 1992 "to wind up some affairs" of the company. 22 McLeod testified on cross-examination that he received his last salary from PMI in December 1992. 23

It is thus clear that McLeod was a managerial employee of PMI from 20 June 1980 to 31 December 1992.

However, McLeod claims that after FETMI purchased PMI in January 1993, he "continued to work at the same plant with the same responsibilities" until 30 November 1993. McLeod claims that FETMI merely renamed PMI as SRTI. McLeod asserts that it was for this reason that when he reached the retirement age in 1993, he asked all the respondents for the payment of his benefits. 24

These assertions deserve scant consideration.

What took place between PMI and SRTI was dation in payment with lease. Pertinent portions of the contract that PMI and SRTI executed on 15 June 1992 read:

WHEREAS, PMI is indebted to the Development Bank of the Philippines ("DBP") and as security for such debts (the "Obligations") has mortgaged its real properties covered by TCT Nos. T-38647, T-37136, and T-37135, together with all machineries and improvements found thereat, a complete listing of which is hereto attached as Annex "A" (the "Assets");

WHEREAS, by virtue of an inter-governmental agency arrangement, DBP transferred the Obligations, including the Assets, to the Asset Privatization Trust ("APT") and the latter has received payment for the Obligations from PMI, under APT's Direct Debt Buy-Out ("DDBO") program thereby causing APT to completely discharge and cancel the mortgage in the Assets and to release the titles of the Assets back to PMI;

WHEREAS, PMI obtained cash advances from SRTC in the total amount of TWO HUNDRED TEN MILLION PESOS (P210,000,000.00) (the "Advances") to enable PMI to consummate the DDBO with APT, with SRTC subrogating APT as PMI's creditor thereby;

WHEREAS, in payment to SRTC for PMI's liability, PMI has agreed to transfer all its rights, title and interests in the Assets by way of a dation in payment to SRTC, provided that simultaneous with the dation in payment, SRTC shall grant unto PMI the right to lease the Assets under terms and conditions stated hereunder;

xxx xxx xxx

NOW THEREFORE, for and in consideration of the foregoing premises, and of the terms and conditions hereinafter set forth, the parties hereby agree as follows:

1. CESSION. In consideration of the amount of TWO HUNDRED TEN MILLION PESOS (P210,000,000.00), PMI hereby cedes, conveys and transfers to SRTC all of its rights, title and interest in and to the Assets by way of a dation in payment. 25 (Emphasis supplied)

As a rule, a corporation that purchases the assets of another will not be liable for the debts of the selling corporation, provided the former acted in good faith and paid adequate consideration for such assets, except when any of the following circumstances is present: (1) where the purchaser expressly or impliedly agrees to assume the debts, (2) where the transaction amounts to a consolidation or merger of the corporations, (3) where the purchasing corporation is merely a continuation of the selling corporation, and (4) where the selling corporation fraudulently enters into the transaction to escape liability for those debts. 26

None of the foregoing exceptions is present in this case.

Here, PMI transferred its assets to SRTI to settle its obligation to SRTI in the sum of P210,000,000. We are not convinced that PMI fraudulently transferred these assets to escape its liability for any of its debts. PMI had already paid its employees, except McLeod, their money claims.

There was also no merger or consolidation of PMI and SRTI.

Consolidation is the union of two or more existing corporations to form a new corporation called the consolidated corporation. It is a combination by agreement between two or more corporations by which their rights, franchises, and property are united and become those of a single, new corporation, composed generally, although not necessarily, of the stockholders of the original corporations.

Merger, on the other hand, is a union whereby one corporation absorbs one or more existing corporations, and the absorbing corporation survives and continues the combined business.

The parties to a merger or consolidation are called constituent corporations. In consolidation, all the constituents are dissolved and absorbed by the new consolidated enterprise. In merger, all constituents, except the surviving corporation, are dissolved. In both cases, however, there is no liquidation of the assets of the dissolved corporations, and the surviving or consolidated corporation acquires all their properties, rights and franchises and their stockholders usually become its stockholders.

The surviving or consolidated corporation assumes automatically the liabilities of the dissolved corporations, regardless of whether the creditors have consented or not to such merger or consolidation. 27

In the present case, there is no showing that the subject dation in payment involved any corporate merger or consolidation. Neither is there any showing of those indicative factors that SRTI is a mere instrumentality of PMI.

Moreover, SRTI did not expressly or impliedly agree to assume any of PMI's debts. Pertinent portions of the subject Deed of Dation in Payment with Lease provide, thus:

2. WARRANTIES AND REPRESENTATIONS. PMI hereby warrants and represents the following:

xxx xxx xxx

(e) PMI shall warrant that it will hold SRTC or its assigns, free and harmless from any liability for claims of PMI's creditors, laborers, and workers and for physical injury or injury to property arising from PMI's custody, possession, care, repairs, maintenance, use or operation of the Assets except ordinary wear and tear; 28 (Emphasis supplied)

Also, McLeod did not present any evidence to show the alleged renaming of "Peggy Mills, Inc." to "Sta. Rosa Textiles, Inc."

Hence, it is not correct for McLeod to treat PMI and SRTI as the same entity.

Respondent corporations assert that SRTI hired McLeod as consultant after PMI stopped operations. 29 On the other hand, McLeod asserts that he was respondent corporations' employee from 1980 to 30 November 1993. 30 However, McLeod failed to present any proof of employer-employee relationship between him and Filsyn, SRTI, or FETMI. McLeod testified, thus:

ATTY. ESCANO:

Do you have any employment contract with Far Eastern Textile?

WITNESS:

It is my belief up the present time.

ATTY. AVECILLA:

May I request that the witness be allowed to go through his Annexes, Your Honor.

ATTY. ESCANO:

Yes, but I want a precise answer to that question. If he has an employment contract with Far Eastern Textile?

WITNESS:

Can I answer it this way, sir? There is not a valid contract but I was under the impression taking into consideration that the closeness that I had at Far Eastern Textile is enough during that period of time of the development of Peggy Mills to reorganize a staff. I was under the basic impression that they might still retain my status as Vice President and Plant Manager of the company.

ATTY. ESCANO:

But the answer is still, there is no employment contract in your possession appointing you in any capacity by Far Eastern?

WITNESS:

There was no written contract, sir.

xxx xxx xxx

ATTY. ESCANO:

So, there is proof that you were in fact really employed by Peggy Mills?

WITNESS:

Yes, sir.

ATTY. ESCANO:

Of course, my interest now is to whether or not there is a similar document to present that you were employed by the other respondents like Filsyn Corporation?

WITNESS:

I have no document, sir.

ATTY. ESCANO:

What about Far Eastern Textile Mills?

WITNESS:

I have no document, sir.

ATTY. ESCANO:

And Sta. Rosa Textile Mills?

WITNESS:

There is no document, sir. 31

xxx xxx xxx

ATTY. ESCANO:

Q Yes. Let me be more specific, Mr. McLeod. Do you have a contract of employment from Far Eastern Textiles, Inc.?

A No, sir.

Q What about Sta. Rosa Textile Mills, do you have an employment contract from this company?

A No, sir.

xxx xxx xxx

Q And what about respondent Eric Hu. Have you had any contract of employment from Mr. Eric Hu?

A Not a direct contract but I was taken in and I told to take over this from Mr. Eric Hu. Automatically, it confirms that Mr. Eric Hu, in other words, was under the control of Mr. Patricio Lim at that period of time.

Q No documents to show, Mr. McLeod?

A No. No documents, sir. 32

McLeod could have presented evidence to support his allegation of employer-employee relationship between him and any of Filsyn, SRTI, and FETMI, but he did not. Appointment letters or employment contracts, payrolls, organization charts, SSS registration, personnel list, as well as testimony of co-employees, may serve as evidence of employee status. 33

It is a basic rule in evidence that parties must prove their affirmative allegations. While technical rules are not strictly followed in the NLRC, this does not mean that the rules on proving allegations are entirely ignored. Bare allegations are not enough. They must be supported by substantial evidence at the very least. 34

However, McLeod claims that "for purposes of determining employer liability, all private respondents are one and the same employer" because: (1) they have the same address; (2) they are all engaged in the same business; and (3) they have interlocking directors and officers. 35

This assertion is untenable.

A corporation is an artificial being invested by law with a personality separate and distinct from that of its stockholders and from that of other corporations to which it may be connected. 36

While a corporation may exist for any lawful purpose, the law will regard it as an association of persons or, in case of two corporations, merge them into one, when its corporate legal entity is used as a cloak for fraud or illegality. This is the doctrine of piercing the veil of corporate fiction. The doctrine applies only when such corporate fiction is used to defeat public convenience, justify wrong, protect fraud, or defend crime, 37 or when it is made as a shield to confuse the legitimate issues, or where a corporation is the mere alter ego or business conduit of a person, or where the corporation is so organized and controlled and its affairs are so conducted as to make it merely an instrumentality, agency, conduit or adjunct of another corporation. 38

To disregard the separate juridical personality of a corporation, the wrongdoing must be established clearly and convincingly. It cannot be presumed. 39

Here, we do not find any of the evils sought to be prevented by the doctrine of piercing the corporate veil.

Respondent corporations may be engaged in the same business as that of PMI, but this fact alone is not enough reason to pierce the veil of corporate fiction. 40

In Indophil Textile Mill Workers Union v. Calica, 41 the Court ruled, thus:

In the case at bar, petitioner seeks to pierce the veil of corporate entity of Acrylic, alleging that the creation of the corporation is a devise to evade the application of the CBA between petitioner Union and private respondent Company. While we do not discount the possibility of the similarities of the businesses of private respondent and Acrylic, neither are we inclined to apply the doctrine invoked by petitioner in granting the relief sought. The fact that the businesses of private respondent and Acrylic are related, that some of the employees of the private respondent are the same persons manning and providing for auxiliary services to the units of Acrylic, and that the physical plants, offices and facilities are situated in the same compound, it is our considered opinion that these facts are not sufficient to justify the piercing of the corporate veil of Acrylic. 42 (Emphasis supplied)

Also, the fact that SRTI and PMI shared the same address, i.e., 11/F BA-Lepanto Bldg., Paseo de Roxas, Makati City, 43 can be explained by the two companies' stipulation in their Deed of Dation in Payment with Lease that "simultaneous with the dation in payment, SRTC shall grant unto PMI the right to lease the Assets under terms and conditions stated hereunder." 44

As for the addresses of Filsyn and FETMI, Filsyn held office at 12th Floor, BA-Lepanto Bldg., Paseo de Roxas, Makati City, 45 while FETMI held office at 18F, Tun Nan Commercial

Building, 333 Tun Hwa South Road, Sec. 2, Taipei, Taiwan, R.O.C. 46 Hence, they did not have the same address as that of PMI.

That respondent corporations have interlocking incorporators, directors, and officers is of no moment.

The only interlocking incorporators of PMI and Filsyn were Patricio and Carlos Palanca, Jr. 47 While Patricio was Director and Board Chairman of Filsyn, SRTI, and PMI, 48 he was never an officer of FETMI.

Eric Hu, on the other hand, was Director of Filsyn and SRTI. 49 He was never an officer of PMI.

Marialen C. Corpuz, Filsyn's Finance Officer, 50 testified on cross-examination that (1) among all of Filsyn's officers, only she was the one involved in the management of PMI; (2) only she and Patricio were the common officers between Filsyn and PMI; and (3) Filsyn and PMI are "two separate companies." 51

Apolinario L. Posio, PMI's Chief Accountant, testified that "SRTI is a different corporation from PMI." 52

At any rate, the existence of interlocking incorporators, directors, and officers is not enough justification to pierce the veil of corporate fiction, in the absence of fraud or other public policy considerations. 53

In Del Rosario v. NLRC, 54 the Court ruled that substantial identity of the incorporators of corporations does not necessarily imply fraud.

In light of the foregoing, and there being no proof of employer-employee relationship between McLeod and respondent corporations and Eric Hu, McLeod's cause of action is only against his former employer, PMI.

On Patricio's personal liability, it is settled that in the absence of malice, bad faith, or specific provision of law, a stockholder or an officer of a corporation cannot be made personally liable for corporate liabilities. 55

To reiterate, a corporation is a juridical entity with legal personality separate and distinct from those acting for and in its behalf and, in general, from the people comprising it. The rule is that obligations incurred by the corporation, acting through its directors, officers, and employees, are its sole liabilities. 56

Personal liability of corporate directors, trustees or officers attaches only when (1) they assent to a patently unlawful act of the corporation, or when they are guilty of bad faith or gross negligence in directing its affairs, or when there is a conflict of interest resulting in damages to the corporation, its stockholders or other persons; (2) they consent to the issuance of watered down stocks or when, having knowledge of such issuance, do not forthwith file with the corporate secretary their written objection; (3) they agree to hold themselves personally and solidarily liable with the corporation; or (4) they are made by specific provision of law personally answerable for their corporate action. 57

Considering that McLeod failed to prove any of the foregoing exceptions in the present case, McLeod cannot hold Patricio solidarily liable with PMI.

The records are bereft of any evidence that Patricio acted with malice or bad faith. Bad faith is a question of fact and is evidentiary. Bad faith does not connote bad judgment or negligence. It imports a dishonest purpose or some moral obliquity and conscious wrongdoing. It means breach of a known duty through some ill motive or interest. It partakes of the nature of fraud. 58

In the present case, there is nothing substantial on record to show that Patricio acted in bad faith in terminating McLeod's services to warrant Patricio's personal liability. PMI had no other choice but to stop plant operations. The work stoppage therefore was by necessity. The company could no longer continue with its plant operations because of the serious business losses that it had suffered. The mere fact that Patricio was president and director of PMI is not a ground to conclude that he should be held solidarily liable with PMI for McLeod's money claims.

The ruling in A.C. Ransom Labor Union-CCLU v. NLRC, 59 which the Court of Appeals cited, does not apply to this case. We quote pertinent portions of the ruling, thus:

(a) Article 265 of the Labor Code, in part, expressly provides:

"Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages."

Article 273 of the Code provides that:

"Any person violating any of the provisions of Article 265 of this Code shall be punished by a fine of not exceeding five hundred pesos and/or imprisonment for not less than one (1) day nor more than six (6) months."

(b) How can the foregoing provisions be implemented when the employer is a corporation? The answer is found in Article 212 (c) of the Labor Code which provides:

"(c) 'Employer' includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer."

The foregoing was culled from Section 2 of RA 602, the Minimum Wage Law. Since RANSOM is an artificial person, it must have an officer who can be presumed to be the employer, being the "person acting in the interest of (the) employer" RANSOM. The corporation, only in the technical sense, is the employer.

The responsible officer of an employer corporation can be held personally, not to say even criminally, liable for non-payment of back wages. That is the policy of the law.

xxx xxx xxx

(c) If the policy of the law were otherwise, the corporation employer can have devious ways for evading payment of back wages. In the instant case, it would appear that RANSOM, in 1969, foreseeing the possibility or probability of payment of back wages to the 22 strikers, organized ROSARIO to replace RANSOM, with the latter to be eventually phased out if the 22 strikers win their case. RANSOM actually ceased operations on May 1, 1973, after the December 19, 1972 Decision of the Court of Industrial Relations was promulgated against RANSOM. 60 (Emphasis supplied)

Clearly, in A.C. Ransom, RANSOM, through its President, organized ROSARIO to evade payment of backwages to the 22 strikers. This situation, or anything similar showing malice or bad faith on the part of Patricio, does not obtain in the present case. In Santos v. NLRC, 61 the Court held, thus:

It is true, there were various cases when corporate officers were themselves held by the Court to be personally accountable for the payment of wages and money claims to its employees. In A.C. Ransom Labor Union-CCLU vs. NLRC, for instance, the Court ruled that under the Minimum Wage Law, the responsible officer of an employer corporation could be held personally liable for nonpayment of backwages for "(i)f the policy of the law were otherwise, the corporation employer (would) have devious ways for evading payment of backwages." In the absence of a clear identification of the officer directly responsible for failure to pay the backwages, the Court considered the President of the corporation as such officer. The case was cited in Chua vs. NLRC in holding personally liable the vice-president of the company, being the highest and most ranking official of the corporation next to the President who was dismissed for the latter's claim for unpaid wages.

A review of the above exceptional cases would readily disclose the attendance of facts and circumstances that could rightly sanction personal liability on the part of the company officer. In A.C. Ransom, the corporate entity was a family corporation and execution against it could not be implemented because of the disposition posthaste of its leviable assets evidently in order to evade its just and due obligations. The doctrine of "piercing the veil of corporate fiction" was thus clearly appropriate. Chua likewise involved another family corporation, and this time the conflict was between two brothers occupying the highest ranking positions in the company. There were incontrovertible facts which pointed to extreme personal animosity that resulted, evidently in bad faith, in the easing out from the company of one of the brothers by the other.

The basic rule is still that which can be deduced from the Court's pronouncement in Sunio vs. National Labor Relations Commission; thus:

We come now to the personal liability of petitioner, Sunio, who was made jointly and severally responsible with petitioner company and CIPI for the payment of the backwages of private respondents. This is reversible error. The Assistant Regional Director's Decision failed to disclose the reason why he was made personally liable. Respondents, however, alleged as grounds thereof, his being the owner of one-half (1/2) interest of said corporation, and his alleged arbitrary dismissal of private respondents.

Petitioner Sunio was impleaded in the Complaint in his capacity as General Manager of petitioner corporation. There appears to be no evidence on record that he acted maliciously or in

bad faith in terminating the services of private respondents. His act, therefore, was within the scope of his authority and was a corporate act.

It is basic that a corporation is invested by law with a personality separate and distinct from those of the persons composing it as well as from that of any other legal entity to which it may be related. Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate corporate personality. Petitioner Sunio, therefore, should not have been made personally answerable for the payment of private respondents' back salaries. 62 (Emphasis supplied)

Thus, the rule is still that the doctrine of piercing the corporate veil applies only when the corporate fiction is used to defeat public convenience, justify wrong, protect fraud, or defend crime. In the absence of malice, bad faith, or a specific provision of law making a corporate officer liable, such corporate officer cannot be made personally liable for corporate liabilities. Neither Article 212 (c) nor Article 273 (now 272) of the Labor Code expressly makes any corporate officer personally liable for the debts of the corporation. As this Court ruled in H.L. Carlos Construction, Inc. v. Marina Properties Corporation: 63

We concur with the CA that these two respondents are not liable. Section 31 of the Corporation Code (Batas Pambansa Blg. 68) provides:

"Section 31. Liability of directors, trustees or officers. — Directors or trustees who willfully and knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross negligence or bad faith . . . shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders and other persons."

The personal liability of corporate officers validly attaches only when (a) they assent to a patently unlawful act of the corporation; or (b) they are guilty of bad faith or gross negligence in directing its affairs; or (c) they incur conflict of interest, resulting in damages to the corporation, its stockholders or other persons.

The records are bereft of any evidence that Typoco acted in bad faith with gross or inexcusable negligence, or that he acted outside the scope of his authority as company president. The unilateral termination of the Contract during the existence of the TRO was indeed contemptible — for which MPC should have merely been cited for contempt of court at the most — and a preliminary injunction would have then stopped work by the second contractor. Besides, there is no showing that the unilateral termination of the Contract was null and void. 64

McLeod is not entitled to payment of vacation leave and sick leave as well as to holiday pay. Article 82, Title I, Book Three of the Labor Code, on Working Conditions and Rest Periods, provides:

Coverage. — The provisions of this title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

As used herein, "managerial employees" refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. (Emphasis supplied)

As Vice President/Plant Manager, McLeod is a managerial employee who is excluded from the coverage of Title I, Book Three of the Labor Code. McLeod is entitled to payment of vacation leave and sick leave only if he and PMI had agreed on it. The payment of vacation leave and sick leave depends on the policy of the employer or the agreement between the employer and employee. 65 In the present case, there is no showing that McLeod and PMI had an agreement concerning payment of these benefits.

McLeod's assertion of underpayment of his 13th month pay in December 1993 is unavailing. 66 As already stated, PMI stopped plant operations in 1992. McLeod himself testified that he received his last salary from PMI in December 1992. After the termination of the employer-employee relationship between McLeod and PMI, SRTI hired McLeod as consultant and not as employee. Since McLeod was no longer an employee, he was not entitled to the 13th month pay. 67 Besides, there is no evidence on record that McLeod indeed received his alleged "reduced 13th month pay of P44,183.63" in December 1993. 68

Also unavailing is McLeod's claim that he was entitled to the "unpaid monetary equivalent of unused plane tickets for the period covering 1989 to 1992 in the amount of P279,300.00." 69 PMI has no company policy granting its officers and employees expenses for trips abroad. 70 That at one time PMI reimbursed McLeod for his and his wife's plane tickets in a vacation to London 71 could not be deemed as an established practice considering that it happened only once. To be considered a "regular practice," the giving of the benefits should have been done over a long period, and must be shown to have been consistent and deliberate. 72

In American Wire and Cable Daily Rated Employees Union v. American Wire and Cable Co., Inc., 73 the Court held that for a bonus to be enforceable, the employer must have promised it, and the parties must have expressly agreed upon it, or it must have had a fixed amount and had been a long and regular practice on the part of the employer.

In the present case, there is no showing that PMI ever promised McLeod that it would continue to grant him the benefit in question. Neither is there any proof that PMI and McLeod had expressly agreed upon the giving of that benefit.

McLeod's reliance on Annex M 74 can hardly carry the day for him. Annex M, which is McLeod's letter addressed to "Philip Lim, VP Administration," merely contains McLeod's proposals for the grant of some benefits to supervisory and confidential employees. Contrary to McLeod's allegation, Patricio did not sign the letter. Hence, the letter does not embody any agreement between McLeod and the management that would entitle McLeod to his money claims.

Neither can McLeod's assertions find support in Annex U. 75 Annex U is the Agreement which McLeod and Universal Textile Mills, Inc. executed in 1959. The Agreement merely contains the renewal of the service agreement which the parties signed in 1956.

McLeod cannot successfully pretend that his monthly salary of P60,000 was reduced without his consent.

McLeod testified that in 1990, Philip Lim explained to him why his salary would have to be reduced. McLeod said that Philip told him that "they were short in finances; that it would be repaid." 76 Were McLeod not amenable to that reduction in salary, he could have immediately resigned from his work in PMI.

McLeod knew that PMI was then suffering from serious business losses. In fact, McLeod testified that PMI was not able to operate from August 1989 to 1992 because of the strike. Even before 1989, as Vice President of PMI, McLeod was aware that the company had incurred "huge loans from DBP." 77 As it happened, McLeod continued to work with PMI. We find it pertinent to quote some portions of Apolinario Posio's testimony, to wit:

Q You also stated that before the period of the strike as shown by annex "K" of the reply filed by the complainant which was I think a voucher, the salary of Mr. McLeod was roughly P60,000.00 a month?

A Yes, sir.

Q And as shown by their annex "L" to their reply, that this was reduced to roughly P50,000.00 a month?

A Yes, sir.

Q You stated that this was indeed upon the instruction by the Vice-President of Peggy Mills at that time and that was Mr. Philip Lim, would you not?

A Yes, sir.

Q Of your own personal knowledge, can you say if this was, in fact, by agreement between Mr. Philip Lim or any other officers of Peggy Mills and Mr. McLeod?

A If I recall it correctly, I assume it was an agreement, verbal agreement with, between Mr. Philip Lim and Mr. McLeod, because the voucher that we prepared was actually acknowledged by Mr. McLeod, the reduced amount was acknowledged by Mr. McLeod thru the voucher that we prepared.

Q In other words, Mr. Witness, you mean to tell us that Mr. McLeod continuously received the reduced amount of P50,000.00 by signing the voucher and receiving the amount in question?

A Yes, sir.

Q As far as you remember, Mr. Posio, was there any complaint by Mr. McLeod because of this reduced amount of his salary at that time?

A I don't have any personal knowledge of any complaint, sir.

Q At least, that is in so far as you were concerned, he said nothing when he signed the voucher in question?

A Yes, sir.

Q Now, you also stated that the reason for what appears to be an agreement between Peggy Mills and Mr. McLeod in so far as the reduction of his salary from P60,000.00 to P50,000.00 a month was because he would have a reduced number of working days in view of the strike at Peggy Mills, is that right?

A Yes, sir.

Q And that this was so because on account of the strike, there was no work to be done in the company?

A Yes, sir. 78

xxx xxx xxx

Q Now, you also stated if you remember during the first time that you testified that in the beginning, the monthly salary of the complainant was P60,000.00, is that correct?

A Yes, sir.

Q And because of the long period of the strike, when there was no work to be done, by agreement with the complainant, his monthly salary was adjusted to only P50,495 because he would not have to report for work on Saturday. Do you remember having made that explanation?

A Yes, sir.

Q You also stated that the complainant continuously received his monthly salary in the adjusted amount of P50,495.00 monthly signing the necessary vouchers or pay slips for that without complaining, is that not right, Mr. Posio?

A Yes, sir. 79

Since the last salary that McLeod received from PMI was P50,495, that amount should be the basis in computing his retirement benefits. McLeod must be credited only with his service to PMI as it had a juridical personality separate and distinct from that of the other respondent corporations.

Since PMI has no retirement plan, 80 we apply Section 5, Rule II of the Rules Implementing the New Retirement Law which provides:

5.1 In the absence of an applicable agreement or retirement plan, an employee who retires pursuant to the Act shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.

5.2 Components of One-half (1/2) Month Salary. — For the purpose of determining the minimum retirement pay due an employee under this Rule, the term "one-half month salary" shall include all of the following:

(a) Fifteen (15) days salary of the employee based on his latest salary rate. . . .

With McLeod having worked with PMI for 12 years, from 1980 to 1992, he is entitled to a retirement pay equivalent to 1/2 month salary for every year of service based on his latest salary rate of P50,495 a month.

There is no basis for the award of moral damages.

Moral damages are recoverable only if the defendant has acted fraudulently or in bad faith, or is guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligations. The breach must be wanton, reckless, malicious, or in bad faith, oppressive or abusive. 81 From the records of the case, the Court finds no ultimate facts to support a conclusion of bad faith on the part of PMI.

Records disclose that PMI had long offered to pay McLeod his money claims. In their Comment, respondents assert that they offered to pay McLeod the sum of P840,000, as "separation benefits, and not P300,000, if only to buy peace and to forestall any complaint" that McLeod may initiate before the NLRC. McLeod admitted at the hearing before the Labor Arbiter that PMI has made this offer —

ATTY. ESCANO:

. . . According to your own statement in your Position Paper and I am referring to page 8, your unpaid retirement benefit for fourteen (14) years of service at P60,000.00 per year is P840,000.00, is that correct?

WITNESS:

That is correct, sir.

ATTY. ESCANO:

And this amount is correct P840,000.00, according to your Position Paper?

WITNESS:

That is correct, sir.

ATTY. ESCANO:

The question I want to ask is, are you aware that this amount was offered to you sometime last year through your own lawyer, my good friend, Atty. Avecilla, who is right here with us?

WITNESS:

I was aware, sir.

ATTY. ESCANO:

So this was offered to you, is that correct?

WITNESS:

I was told that a fixed sum of P840,000.00 was offered.

ATTY. ESCANO:

And, of course, the reason, if I may assume, that you declined this offer was that, according to you, there are other claims which you would like to raise against the Respondents which, by your impression, they were not willing to pay in addition to this particular amount?

WITNESS:

Yes, sir.

ATTY. ESCANO:

The question now is, if the same amount is offered to you by way of retirement which is exactly what you stated in your own Position Paper, would you accept it or not?

WITNESS:

Not on the concept without all the basic benefits due me, I will refuse. 82

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ATTY. ROXAS:

Q You mentioned in the cross-examination of Atty. Escano that you were offered the separation pay in 1994, is that correct, Mr. Witness?

WITNESS:

A I was offered a settlement of P300,000.00 for complete settlement and that was I think in January or February 1994, sir.

ATTY. ESCANO:

No. What was mentioned was the amount of P840,000.00.

WITNESS:

What did you say, Atty. Escano?

ATTY. ESCANO:

The amount that I mentioned was P840,000.00 corresponding to the . . .

WITNESS:

May I ask that the question be clarified, your Honor?

ATTY. ROXAS:

Q You mentioned that you were offered for the settlement of your claims in 1994 for P840,000.00, is that right, Mr. Witness?

A During that period in time, while the petition in this case was ongoing, we already filed a case at that period of time, sir. There was a discussion. To the best of my knowledge, they are willing to settle for P840,000.00 and based on what the Attorney told me, I refused to accept because I believe that my position was not in anyway due to a compromise situation to the benefits I am entitled to. 83

Hence, the awards for exemplary damages and attorney's fees are not proper in the present case. 84

That respondent corporations, in their appeal to the NLRC, did not serve a copy of their memorandum of appeal upon PMI is of no moment. Section 3 (a), Rule VI of the NLRC New Rules of Procedure provides:

Requisites for Perfection of Appeal. — (a) The appeal shall be filed within the reglementary period as provided in Section 1 of this Rule; shall be under oath with proof of payment of the required appeal fee and the posting of a cash or surety bond as provided in Section 5 of this Rule; shall be accompanied by a memorandum of appeal . . . and proof of service on the other party of such appeal. (Emphasis supplied)

The "other party" mentioned in the Rule obviously refers to the adverse party, in this case, McLeod. Besides, Section 3, Rule VI of the Rules which requires, among others, proof of service of the memorandum of appeal on the other party, is merely a rundown of the contents of the required memorandum of appeal to be submitted by the appellant. These are not jurisdictional requirements. 85

WHEREFORE, we DENY the petition and AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 55130, with the following MODIFICATIONS: (a) the retirement pay of John F. McLeod should be computed at 1/2 month salary for every year of service for 12 years based on his salary rate of P50,495 a month; (b) Patricio L. Lim is absolved from personal liability; and (c) the awards for moral and exemplary damages and attorney's fees are deleted. No pronouncement as to costs.

SO ORDERED.

Quisumbing, Tinga and Velasco, Jr., JJ., concur.

Carpio-Morales, J., took no part, concurred in assailed decision.PACIFIC CONSULTANTS INTERNATIONAL ASIA, INC., ET AL. vs. KLAUS K. SCHONFELDTHIRD DIVISION[G.R. No. 166920. February 19, 2007.]PACIFIC CONSULTANTS INTERNATIONAL ASIA, INC. and JENS PETER HENRICHSEN, petitioners, vs. KLAUS K. SCHONFELD, respondent.D E C I S I O NCALLEJO, SR., J p:Before us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court of the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 76563. The CA decision reversed the Resolution of the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 029319-01, which, in turn, affirmed the Decision of the Labor Arbiter in NLRC NCR Case No. 30-12-04787-00 dismissing the complaint of respondent Klaus K. Schonfeld. ISAcHDThe antecedent facts are as follows:Respondent is a Canadian citizen and was a resident of New Westminster, British Columbia, Canada. He had been a consultant in the field of environmental engineering and water supply and sanitation. Pacicon Philippines, Inc. (PPI) is a corporation duly established and incorporated in accordance with the laws of the Philippines. The primary purpose of PPI was to engage in the business of providing specialty and technical services both in and out of the Philippines. 2 It is a subsidiary of Pacific Consultants International of Japan (PCIJ). The president of PPI, Jens Peter Henrichsen, who was also the director of PCIJ, was based in Tokyo, Japan. Henrichsen commuted from Japan to Manila and vice versa, as well as in other countries where PCIJ had business.In 1997, PCIJ decided to engage in consultancy services for water and sanitation in the Philippines. In October 1997, respondent was employed by PCIJ, through Henrichsen, as Sector Manager of PPI in its Water and Sanitation Department. However, PCIJ assigned him as PPI sector manager in the Philippines. His salary was to be paid partly by PPI and PCIJ.On January 7, 1998, Henrichsen transmitted a letter of employment to respondent in Canada, requesting him to accept the same and affix his conformity thereto. Respondent made some revisions in the letter of employment and signed the contract. 3 He then sent a copy to Henrichsen. The letter of employment reads:Mr. Klaus K. SchonfeldII-365 Ginger DriveNew Westminster, B.C.Canada V3L 5L5

Tokyo 7 January 1998Dear Mr. Schonfeld,Letter of EmploymentThis Letter of Employment with the attached General Conditions of Employment constitutes the agreement under which you will be engaged by our Company on the terms and conditions defined hereunder. In case of any discrepancies or contradictions between this Letter of Employment and the General Conditions of Employment, this Letter of Employment will prevail. THDIaCYou will, from the date of commencement, be ["seconded"] to our subsidiary Pacicon Philippines, Inc. in Manila, hereinafter referred as Pacicon. Pacicon will provide you with a

separate contract, which will define that part of the present terms and conditions for which Pacicon is responsible. In case of any discrepancies or contradictions between the present Letter of Employment and the contract with Pacicon Philippines, Inc. or in the case that Pacicon should not live up to its obligations, this Letter of Employment will prevail.1. Project Country: The Philippines with possible short-term

assignments in other countries.2. Duty Station: Manila, the Philippines.3. Family Status: Married.4. Position: Sector Manager, Water and Sanitation.5. Commencement: 1st October 1997.6. Remuneration:US$7,000.00 per month. The amount will be

paid partly as a local salary (US$2,100.00per month) by Pacicon and partly as anoffshore salary (US$4,900.00) by PCI to bankaccounts to be nominated by you.A performance related componentcorresponding to 17.6% of the total annualremuneration, subject to satisfactoryperformance against agreed tasks and targets,paid offshore.

7. Accommodation: The company will provide partly furnishedaccommodation to a rent including associationfees, taxes and VAT not exceeding the Pesosequivalent of US$2,900.00 per month.

8. Transportation: Included for in the remuneration.9. Leave Travels:You are entitled to two leave travels per year.10. Shipment of Personal

Effects: The maximum allowance is US$4,000.00.11. Mobilization

Travel:Mobilization travel will be from NewWestminster, B.C., Canada.

This letter is send (sic) to you in duplicate; we kindly request you to sign and return one copy to us. EcHAaSYours sincerely,Pacific Consultants InternationalJens Peter Henrichsen

Above terms and conditions acceptedDate: 2 March 1998(Sgd.)Klaus Schonfeldas annotated and initialed 4

Section 21 of the General Conditions of Employment appended to the letter of employment reads:21 ArbitrationAny question of interpretation, understanding or fulfillment of the conditions of employment, as well as any question arising between the Employee and the Company which is in consequence of

or connected with his employment with the Company and which can not be settled amicably, is to be finally settled, binding to both parties through written submissions, by the Court of Arbitration in London. 5 Respondent arrived in the Philippines and assumed his position as PPI Sector Manager. He was accorded the status of a resident alien.As required by Rule XIV (Employment of Aliens) of the Omnibus Rules Implementing the Labor Code, PPI applied for an Alien Employment Permit (Permit) for respondent before the Department of Labor and Employment (DOLE). It appended respondent's contract of employment to the application. IHAcCSOn February 26, 1999, the DOLE granted the application and issued the Permit to respondent. It reads:Republic of the PhilippinesDepartment of Labor & EmploymentNational Capital RegionALIEN EMPLOYMENT PERMITISSUED TO: SCHONFELD, KLAUS KURTDATE OF BIRTH: January 11, 1942 NATIONALITY: CanadianPOSITION: VP — WATER & SANITATIONEMPLOYER: PACICON PHILIPPINES, INC.ADDRESS: 27/F Rufino Pacific Towers Bldg.,

Ayala Ave., Makati CityPERMITISSUED ON: February 26, 1999 SIGNATURE OF BEARER:VALID UNTIL: January 7, 2000 (Sgd.)APPROVED: BIENVENIDO S. LAGUESMA

By: MAXIMO B. ANITOREGIONAL DIRECTOR

(Emphasis supplied) 6 Respondent received his compensation from PPI for the following periods: February to June 1998, November to December 1998, and January to August 1999. He was also reimbursed by PPI for the expenses he incurred in connection with his work as sector manager. He reported for work in Manila except for occasional assignments abroad, and received instructions from Henrichsen. 7 On May 5, 1999, respondent received a letter from Henrichsen informing him that his employment had been terminated effective August 4, 1999 for the reason that PCIJ and PPI had not been successful in the water and sanitation sector in the Philippines. 8 However, on July 24, 1999, Henrichsen, by electronic mail, 9 requested respondent to stay put in his job after August 5, 1999, until such time that he would be able to report on certain projects and discuss all the opportunities he had developed. 10 Respondent continued his work with PPI until the end of business hours on October 1, 1999. HcDATCRespondent filed with PPI several money claims, including unpaid salary, leave pay, air fare from Manila to Canada, and cost of shipment of goods to Canada. PPI partially settled some of his claims (US$5,635.99), but refused to pay the rest.On December 5, 2000, respondent filed a Complaint 11 for Illegal Dismissal against petitioners PPI and Henrichsen with the Labor Arbiter. It was docketed as NLRC-NCR Case No. 30-12-04787-00.

In his Complaint, respondent alleged that he was illegally dismissed; PPI had not notified the DOLE of its decision to close one of its departments, which resulted in his dismissal; and they failed to notify him that his employment was terminated after August 4, 1999. Respondent also claimed for separation pay and other unpaid benefits. He alleged that the company acted in bad faith and disregarded his rights. He prayed for the following reliefs:1. Judgment be rendered in his favor ordering the respondents to reinstate complainant to his former position without loss of seniority and other privileges and benefits, and to pay his full backwages from the time compensation was with held (sic) from him up to the time of his actual reinstatement. In the alternative, if reinstatement is no longer feasible, respondents must pay the complainant full backwages, and separation pay equivalent to one month pay for every year of service, or in the amount of US$16,400.00 as separation pay;2. Judgment be rendered ordering the respondents to pay the outstanding monetary obligation to complainant in the amount of US$10,131.76 representing the balance of unpaid salaries, leave pay, cost of his air travel and shipment of goods from Manila to Canada; and SHCaEA3. Judgment be rendered ordering the respondent company to pay the complainant damages in the amount of no less than US $10,000.00 and to pay 10% of the total monetary award as attorney's fees, and costs.Other reliefs just and equitable under the premises are, likewise, prayed for. 12 Petitioners filed a Motion to Dismiss the complaint on the following grounds: (1) the Labor Arbiter had no jurisdiction over the subject matter; and (2) venue was improperly laid. It averred that respondent was a Canadian citizen, a transient expatriate who had left the Philippines. He was employed and dismissed by PCIJ, a foreign corporation with principal office in Tokyo, Japan. Since respondent's cause of action was based on his letter of employment executed in Tokyo, Japan dated January 7, 1998, under the principle of lex loci contractus, the complaint should have been filed in Tokyo, Japan. Petitioners claimed that respondent did not offer any justification for filing his complaint against PPI before the NLRC in the Philippines. Moreover, under Section 12 of the General Conditions of Employment appended to the letter of employment dated January 7, 1998, complainant and PCIJ had agreed that any employment-related dispute should be brought before the London Court of Arbitration. Since even the Supreme Court had already ruled that such an agreement on venue is valid, Philippine courts have no jurisdiction. 13 Respondent opposed the Motion, contending that he was employed by PPI to work in the Philippines under contract separate from his January 7, 1998 contract of employment with PCIJ. He insisted that his employer was PPI, a Philippine-registered corporation; it is inconsequential that PPI is a wholly-owned subsidiary of PCIJ because the two corporations have separate and distinct personalities; and he received orders and instructions from Henrichsen who was the president of PPI. He further insisted that the principles of forum non conveniens and lex loci contractus do not apply, and that although he is a Canadian citizen, Philippine Labor Laws apply in this case. IaTSEDRespondent adduced in evidence the following contract of employment dated January 9, 1998 which he had entered into with Henrichsen:Mr. Klaus K. SchonfeldII-365 Ginger DriveNew Westminster, B.C.Canada V3L 5L5

Manila 9 January, 1998Dear Mr. Schonfeld,Letter of EmploymentThis Letter of Employment with the attached General Conditions of Employment constitutes the agreement, under which you will be engaged by Pacicon Philippines, Inc. on the terms and conditions defined hereunder.1. Project Country: The Philippines with possible

assignments in other countries.2. Duty Station: Manila, the Philippines.3. Family Status: Married.4. Position: Sector Manager — Water and Sanitation

Sector.5. Commencement: 1 January, 1998.6. Remuneration:US$3,100.00 per month payable to a bank

account to be nominated by you.7. Accommodation: The company will provide partly

furnished accommodation to a rentincluding association fees, taxes andVAT not exceeding the Pesos equivalentof US$2300.00 per month. TcDIEH

8. Transportation: Included for in the remuneration.9. Shipment of Personal The maximum allowance is US$2500.00

Effects: in connection with initial shipment ofpersonal effects from Canada.

10. Mobilization Travel: Mobilization travel will be from NewWestminster, B.C., Canada.

This letter is send (sic) to you in duplicate; we kindly request you to sign and return one copy to us.Yours sincerely,Pacicon Philippines, Inc.Jens Peter HenrichsenPresident 14 According to respondent, the material allegations of the complaint, not petitioners' defenses, determine which quasi-judicial body has jurisdiction. Section 21 of the Arbitration Clause in the General Conditions of Employment does not provide for an exclusive venue where the complaint against PPI for violation of the Philippine Labor Laws may be filed. Respondent pointed out that PPI had adopted two inconsistent positions: it was first alleged that he should have filed his complaint in Tokyo, Japan; and it later insisted that the complaint should have been filed in the London Court of Arbitration. 15 In their reply, petitioners claimed that respondent's employer was PCIJ, which had exercised supervision and control over him, and not PPI. Respondent was dismissed by PPI via a letter of Henrichsen under the letterhead of PCIJ in Japan. 16 The letter of employment dated January 9, 1998 which respondent relies upon did not bear his (respondent's) signature nor that of Henrichsen. HEcSDaOn August 2, 2001, the Labor Arbiter rendered a decision granting petitioners' Motion to Dismiss. The dispositive portion reads:

WHEREFORE, finding merit in respondents' Motion to Dismiss, the same is hereby granted. The instant complaint filed by the complainant is dismissed for lack of merit.SO ORDERED. 17 The Labor Arbiter found, among others, that the January 7, 1998 contract of employment between respondent and PCIJ was controlling; the Philippines was only the "duty station" where Schonfeld was required to work under the General Conditions of Employment. PCIJ remained respondent's employer despite his having been sent to the Philippines. Since the parties had agreed that any differences regarding employer-employee relationship should be submitted to the jurisdiction of the court of arbitration in London, this agreement is controlling.On appeal, the NLRC agreed with the disquisitions of the Labor Arbiter and affirmed the latter's decision in toto. 18 Respondent then filed a petition for certiorari under Rule 65 with the CA where he raised the following arguments:IWITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE LABOR ARBITER'S DECISION CONSIDERING THAT:A. PETITIONER'S TRUE EMPLOYER IS NOT PACIFIC CONSULTANTS INTERNATIONAL OF JAPAN BUT RESPONDENT COMPANY, AND THEREFORE, THE LABOR ARBITER HAS JURISDICTION OVER THE INSTANT CASE; AND cHCIEAB. THE PROPER VENUE FOR THE PRESENT COMPLAINT IS THE ARBITRATION BRANCH OF THE NLRC AND NOT THE COURT OF ARBITRATION IN LONDON.IIWITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE DISMISSAL OF THE COMPLAINT CONSIDERING THAT PETITIONER'S TERMINATION FROM EMPLOYMENT IS ILLEGAL:A. THE CLOSURE OF RESPONDENT COMPANY'S WATER AND SANITATION SECTOR WAS NOT BONA FIDE.B. ASSUMING ARGUENDO THAT THE CLOSURE OF RESPONDENT COMPANY'S WATER AND SANITATION SECTOR WAS JUSTIFIABLE, PETITIONER'S DISMISSAL WAS INEFFECTUAL AS THE DEPARTMENT OF LABOR AND EMPLOYMENT (DOLE) AND PETITIONER WAS NOT NOTIFIED THIRTY (30) DAYS BEFORE THE ALLEGED CLOSURE. 19 Respondent averred that the absence or existence of a written contract of employment is not decisive of whether he is an employee of PPI. He maintained that PPI, through its president Henrichsen, directed his work/duties as Sector Manager of PPI; proof of this was his letter-proposal to the Development Bank of the Philippines for PPI to provide consultancy services for the Construction Supervision of the Water Supply and Sanitation component of the World Bank-Assisted LGU Urban Water and Sanitation Project. 20 He emphasized that as gleaned from Alien Employment Permit (AEP) No. M-029908-5017 issued to him by DOLE on February 26, 1999, he is an employee of PPI. It was PPI president Henrichsen who terminated his employment; PPI also paid his salary and reimbursed his expenses related to transactions abroad. That PPI is a

wholly-owned subsidiary of PCIJ is of no moment because the two corporations have separate and distinct personalities. ECSHIDThe CA found the petition meritorious. Applying the four-fold test 21 of determining an employer-employee relationship, the CA declared that respondent was an employee of PPI. On the issue of venue, the appellate court declared that, even under the January 7, 1998 contract of employment, the parties were not precluded from bringing a case related thereto in other venues. While there was, indeed, an agreement that issues between the parties were to be resolved in the London Court of Arbitration, the venue is not exclusive, since there is no stipulation that the complaint cannot be filed in any other forum other than in the Philippines.On November 25, 2004, the CA rendered its decision granting the petition, the decretal portion of which reads:WHEREFORE, the petition is GRANTED in that the assailed Resolutions of the NLRC are hereby REVERSED and SET ASIDE. Let this case be REMANDED to the Labor Arbiter a quo for disposition of the case on the merits.SO ORDERED. 22 A motion for the reconsideration of the above decision was filed by PPI and Henrichsen, which the appellate court denied for lack of merit. 23 In the present recourse, PPI and Henrichsen, as petitioners, raise the following issues:ITHE COURT OF APPEALS GRAVELY ERRED IN RULING THAT AN EMPLOYMENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND RESPONDENT DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A FOREIGN NATIONAL, WAS HIRED ABROAD BY A FOREIGN CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD, AND WAS MERELY "SECONDED" TO PETITIONERS SINCE HIS WORK ASSIGNMENT WAS IN MANILA. AScTaDIITHE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE LABOR ARBITER A QUO HAS JURISDICTION OVER RESPONDENT'S CLAIM DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A FOREIGN NATIONAL, WAS HIRED ABROAD BY A FOREIGN CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD, AND HAD AGREED THAT ANY DISPUTE BETWEEN THEM "SHALL BE FINALLY SETTLED BY THE COURT OF ARBITRATION IN LONDON." 24 Petitioners fault the CA for reversing the findings of the Labor Arbiter and the NLRC. Petitioners aver that the findings of the Labor Arbiter, as affirmed by the NLRC, are conclusive on the CA. They maintain that it is not within the province of the appellate court in a petition for certiorari to review the facts and evidence on record since there was no conflict in the factual findings and conclusions of the lower tribunals. Petitioners assert that such findings and conclusions, having been made by agencies with expertise on the subject matter, should be deemed binding and conclusive. They contend that it was the PCIJ which employed respondent as an employee; it merely seconded him to petitioner PPI in the Philippines, and assigned him to work in Manila as Sector Manager. Petitioner PPI, being a wholly-owned subsidiary of PCIJ, was never the employer of respondent.Petitioners assert that the January 9, 1998 letter of employment which respondent presented to prove his employment with petitioner PPI is of doubtful authenticity since it was unsigned by the purported parties. They insist that PCIJ paid respondent's salaries and only coursed the same through petitioner PPI. PPI, being its subsidiary, had supervision and control over respondent's

work, and had the responsibilities of monitoring the "daily administration" of respondent. Respondent cannot rely on the pay slips, expenses claim forms, and reimbursement memoranda to prove that he was an employee of petitioner PPI because these documents are of doubtful authenticity. DTaAHSPetitioners further contend that, although Henrichsen was both a director of PCIJ and president of PPI, it was he who signed the termination letter of respondent upon instructions of PCIJ. This is buttressed by the fact that PCIJ's letterhead was used to inform him that his employment was terminated. Petitioners further assert that all work instructions came from PCIJ and that petitioner PPI only served as a "conduit." Respondent's Alien Employment Permit stating that petitioner PPI was his employer is but a necessary consequence of his being "seconded" thereto. It is not sufficient proof that petitioner PPI is respondent's employer. The entry was only made to comply with the DOLE requirements.There being no evidence that petitioner PPI is the employer of respondent, the Labor Arbiter has no jurisdiction over respondent's complaint.Petitioners aver that since respondent is a Canadian citizen, the CA erred in ignoring their claim that the principles of forum non conveniens and lex loci contractus are applicable. They also point out that the principal office, officers and staff of PCIJ are stationed in Tokyo, Japan; and the contract of employment of respondent was executed in Tokyo, Japan.Moreover, under Section 21 of the General Conditions for Employment incorporated in respondent's January 7, 1998 letter of employment, the dispute between respondent and PCIJ should be settled by the court of arbitration of London. Petitioners claim that the words used therein are sufficient to show the exclusive and restrictive nature of the stipulation on venue.Petitioners insist that the U.S. Labor-Management Act applies only to U.S. workers and employers, while the Labor Code of the Philippines applies only to Filipino employers and Philippine-based employers and their employees, not to PCIJ. In fine, the jurisdictions of the NLRC and Labor Arbiter do not extend to foreign workers who executed employment agreements with foreign employers abroad, although "seconded" to the Philippines. 25 In his Comment, 26 respondent maintains that petitioners raised factual issues in their petition which are proscribed under Section 1, Rule 45 of the Rules of Court. The finding of the CA that he had been an employee of petitioner PPI and not of PCIJ is buttressed by his documentary evidence which both the Labor Arbiter and the NLRC ignored; they erroneously opted to dismiss his complaint on the basis of the letter of employment and Section 21 of the General Conditions of Employment. In contrast, the CA took into account the evidence on record and applied case law correctly. SETAcCThe petition is denied for lack of merit.It must be stressed that in resolving a petition for certiorari, the CA is not proscribed from reviewing the evidence on record. Under Section 9 of Batas Pambansa Blg. 129, as amended by R.A. No. 7902, the CA is empowered to pass upon the evidence, if and when necessary, to resolve factual issues. 27 If it appears that the Labor Arbiter and the NLRC misappreciated the evidence to such an extent as to compel a contrary conclusion if such evidence had been properly appreciated, the factual findings of such tribunals cannot be given great respect and finality. 28 Inexplicably, the Labor Arbiter and the NLRC ignored the documentary evidence which respondent appended to his pleadings showing that he was an employee of petitioner PPI; they merely focused on the January 7, 1998 letter of employment and Section 21 of the General Conditions of Employment.

Petitioner PPI applied for the issuance of an AEP to respondent before the DOLE. In said application, PPI averred that respondent is its employee. To show that this was the case, PPI appended a copy of respondent's employment contract. The DOLE then granted the application of PPI and issued the permit. SaHTCEIt bears stressing that under the Omnibus Rules Implementing the Labor Code, one of the requirements for the issuance of an employment permit is the employment contract. Section 5, Rule XIV (Employment of Aliens) of the Omnibus Rules provides:SECTION 1. Coverage. — This rule shall apply to all aliens employed or seeking employment in the Philippines and the present or prospective employers.SECTION 2. Submission of list. — All employers employing foreign nationals, whether resident or non-resident, shall submit a list of nationals to the Bureau indicating their names, citizenship, foreign and local address, nature of employment and status of stay in the Philippines.SECTION 3. Registration of resident aliens. — All employed resident aliens shall register with the Bureau under such guidelines as may be issued by it.SECTION 4. Employment permit required for entry. — No alien seeking employment, whether as a resident or non-resident, may enter the Philippines without first securing an employment permit from the Ministry. If an alien enters the country under a non-working visa and wishes to be employed thereafter, he may only be allowed to be employed upon presentation of a duly approved employment permit.SECTION 5. Requirements for employment permit applicants. — The application for an employment permit shall be accompanied by the following:(a) Curriculum vitae duly signed by the applicant indicating his educational background, his work experience and other data showing that he possesses technical skills in his trade or profession.(b) Contract of employment between the employer and the principal which shall embody the following, among others:1. That the non-resident alien worker shall comply with all applicable laws and rules and regulations of the Philippines;2. That the non-resident alien worker and the employer shall bind themselves to train at least two (2) Filipino understudies for a period to be determined by the Minister; and3. That he shall not engage in any gainful employment other than that for which he was issued a permit. IcAaSD(c) A designation by the employer of at least two (2) understudies for every alien worker. Such understudies must be the most ranking regular employees in the section or department for which the expatriates are being hired to insure the actual transfer of technology.Under Section 6 of the Rule, the DOLE may issue an alien employment permit based only on the following:(a) Compliance by the applicant and his employer with the requirements of Section 2 hereof;(b) Report of the Bureau Director as to the availability or non-availability of any person in the Philippines who is competent and willing to do the job for which the services of the applicant are desired;(c) His assessment as to whether or not the employment of the applicant will redound to the national interest;(d) Admissibility of the alien as certified by the Commission on Immigration and Deportation;

(e) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with the imperative of economic development. DHITCcThus, as claimed by respondent, he had an employment contract with petitioner PPI; otherwise, petitioner PPI would not have filed an application for a Permit with the DOLE. Petitioners are thus estopped from alleging that the PCIJ, not petitioner PPI, had been the employer of respondent all along.We agree with the conclusion of the CA that there was an employer-employee relationship between petitioner PPI and respondent using the four-fold test. Jurisprudence is firmly settled that whenever the existence of an employment relationship is in dispute, four elements constitute the reliable yardstick: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer's power to control the employee's conduct. It is the so-called "control test" which constitutes the most important index of the existence of the employer-employee relationship — that is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. Stated otherwise, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. 29 We quote with approval the following ruling of the CA:[T]here is, indeed, substantial evidence on record which would erase any doubt that the respondent company is the true employer of petitioner. In the case at bar, the power to control and supervise petitioner's work performance devolved upon the respondent company. Likewise, the power to terminate the employment relationship was exercised by the President of the respondent company. It is not the letterhead used by the company in the termination letter which controls, but the person who exercised the power to terminate the employee. It is also inconsequential if the second letter of employment executed in the Philippines was not signed by the petitioner. An employer-employee relationship may indeed exist even in the absence of a written contract, so long as the four elements mentioned in the Mafinco case are all present. 30 The settled rule on stipulations regarding venue, as held by this Court in the vintage case of Philippine Banking Corporation v. Tensuan, 31 is that while they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them. 32 In the instant case, no restrictive words like "only," "solely," "exclusively in this court," "in no other court save —," "particularly," "nowhere else but/except —," or words of equal import were stated in the contract. 33 It cannot be said that the court of arbitration in London is an exclusive venue to bring forth any complaint arising out of the employment contract. aITDAEPetitioners contend that respondent should have filed his Complaint in his place of permanent residence, or where the PCIJ holds its principal office, at the place where the contract of employment was signed, in London as stated in their contract. By enumerating possible venues where respondent could have filed his complaint, however, petitioners themselves admitted that the provision on venue in the employment contract is indeed merely permissive.

Petitioners' insistence on the application of the principle of forum non conveniens must be rejected. The bare fact that respondent is a Canadian citizen and was a repatriate does not warrant the application of the principle for the following reasons:First. The Labor Code of the Philippines does not include forum non conveniens as a ground for the dismissal of the complaint. 34 Second. The propriety of dismissing a case based on this principle requires a factual determination; hence, it is properly considered as defense. 35 Third. In Bank of America, NT&SA, Bank of America International, Ltd. v. Court of Appeals, 36 this Court held that:. . . [a] Philippine Court may assume jurisdiction over the case if it chooses to do so; provided, that the following requisites are met: (1) that the Philippine Court is one to which the parties may conveniently resort to; (2) that the Philippine Court is in a position to make an intelligent decision as to the law and the facts; and, (3) that the Philippine Court has or is likely to have power to enforce its decision. . . .Admittedly, all the foregoing requisites are present in this case. aCIHADWHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 76563 is AFFIRMED. This case is REMANDED to the Labor Arbiter for disposition of the case on the merits. Cost against petitioners.SO ORDERED.

COCA COLA BOTTLERS (PHILS.), INC., ET AL. vs. DEAN N. CLIMACOFIRST DIVISION[G.R. No. 146881. February 5, 2007.]COCA COLA BOTTLERS (PHILS.), INC./ERIC MONTINOLA, Manager, petitioners, vs. DR. DEAN N. CLIMACO, respondent.D E C I S I O NAZCUNA, J p:This is a petition for review on certiorari of the Decision of the Court of Appeals 1 promulgated on July 7, 2000, and its Resolution promulgated on January 30, 2001, denying petitioner's motion for reconsideration. The Court of Appeals ruled that an employer-employee relationship exists between respondent Dr. Dean N. Climaco and petitioner Coca-Cola Bottlers Phils., Inc. (Coca-Cola), and that respondent was illegally dismissed. IcSHTARespondent Dr. Dean N. Climaco is a medical doctor who was hired by petitioner Coca-Cola Bottlers Phils., Inc. by virtue of a Retainer Agreement that stated:WHEREAS, the COMPANY desires to engage on a retainer basis the services of a physician and the said DOCTOR is accepting such engagement upon terms and conditions hereinafter set forth;NOW, THEREFORE, in consideration of the premises and the mutual agreement hereinafter contained, the parties agree as follows:1. This Agreement shall only be for a period of one (1) year beginning January 1, 1988 up to December 31, 1988. The said term notwithstanding, either party may terminate the contract upon giving a thirty (30)-day written notice to the other. HIACac2. The compensation to be paid by the company for the services of the DOCTOR is hereby fixed at PESOS: Three Thousand Eight Hundred (P3,800.00) per month. The DOCTOR may charge professional fee for hospital services rendered in line with his specialization. All payments in connection with the Retainer Agreement shall be subject to a withholding tax of ten percent (10%) to be withheld by the COMPANY under the Expanded Withholding Tax System.

In the event the withholding tax rate shall be increased or decreased by appropriate laws, then the rate herein stipulated shall accordingly be increased or decreased pursuant to such laws.3. That in consideration of the above mentioned retainer's fee, the DOCTOR agrees to perform the duties and obligations enumerated in the COMPREHENSIVE MEDICAL PLAN, hereto attached as Annex "A" and made an integral part of this Retainer Agreement.4. That the applicable provisions in the Occupational Safety and Health Standards, Ministry of Labor and Employment shall be followed.5. That the DOCTOR shall be directly responsible to the employee concerned and their dependents for any injury inflicted on, harm done against or damage caused upon the employee of the COMPANY or their dependents during the course of his examination, treatment or consultation, if such injury, harm or damage was committed through professional negligence or incompetence or due to the other valid causes for action.6. That the DOCTOR shall observe clinic hours at the COMPANY'S premises from Monday to Saturday of a minimum of two (2) hours each day or a maximum of TWO (2) hours each day or treatment from 7:30 a.m. to 8:30 a.m. and 3:00 p.m. to 4:00 p.m., respectively unless such schedule is otherwise changed by the COMPANY as [the] situation so warrants, subject to the Labor Code provisions on Occupational Safety and Health Standards as the COMPANY may determine. It is understood that the DOCTOR shall stay at least two (2) hours a day in the COMPANY clinic and that such two (2) hours be devoted to the workshifts with the most number of employees. It is further understood that the DOCTOR shall be on call at all times during the other workshifts to attend to emergency case[s];7. That no employee-employer relationship shall exist between the COMPANY and the DOCTOR whilst this contract is in effect, and in case of its termination, the DOCTOR shall be entitled only to such retainer fee as may be due him at the time of termination. 2 The Comprehensive Medical Plan, 3 which contains the duties and responsibilities of respondent, adverted to in the Retainer Agreement, provided:A. OBJECTIVEThese objectives have been set to give full consideration to [the] employees' and dependents' health:1. Prompt and adequate treatment of occupational and non-occupational injuries and diseases. SEDIaH2. To protect employees from any occupational health hazard by evaluating health factors related to working conditions.3. To encourage employees [to] maintain good personal health by setting up employee orientation and education on health, hygiene and sanitation, nutrition, physical fitness, first aid training, accident prevention and personnel safety.4. To evaluate other matters relating to health such as absenteeism, leaves and termination.5. To give family planning motivations.B. COVERAGE1. All employees and their dependents are embraced by this program.2. The health program shall cover pre-employment and annual p.e., hygiene and sanitation, immunizations, family planning, physical fitness and athletic programs and other activities such as group health education program, safety and first aid classes, organization of health and safety committees.3. Periodically, this program will be reviewed and adjusted based on employees' needs. ECHSDc

C. ACTIVITIES1. Annual Physical Examination.2. Consultations, diagnosis and treatment of occupational and non-occupational illnesses and injuries.3. Immunizations necessary for job conditions.4. Periodic inspections for food services and rest rooms.5. Conduct health education programs and present education materials.6. Coordinate with Safety Committee in developing specific studies and program to minimize environmental health hazards.7. Give family planning motivations.8. Coordinate with Personnel Department regarding physical fitness and athletic programs.9. Visiting and follow-up treatment of Company employees and their dependents confined in the hospital.The Retainer Agreement, which began on January 1, 1988, was renewed annually. The last one expired on December 31, 1993. Despite the non-renewal of the Retainer Agreement, respondent continued to perform his functions as company doctor to Coca-Cola until he received a letter 4 dated March 9, 1995 from petitioner company concluding their retainership agreement effective 30 days from receipt thereof.It is noted that as early as September 1992, petitioner was already making inquiries regarding his status with petitioner company. First, he wrote a letter addressed to Dr. Willie Sy, the Acting President and Chairperson of the Committee on Membership, Philippine College of Occupational Medicine. In response, Dr. Sy wrote a letter 5 to the Personnel Officer of Coca-Cola Bottlers Phils., Bacolod City, stating that respondent should be considered as a regular part-time physician, having served the company continuously for four (4) years. He likewise stated that respondent must receive all the benefits and privileges of an employee under Article 157 (b) 6 of the Labor Code. ScAHTIPetitioner company, however, did not take any action. Hence, respondent made another inquiry directed to the Assistant Regional Director, Bacolod City District Office of the Department of Labor and Employment (DOLE), who referred the inquiry to the Legal Service of the DOLE, Manila. In his letter 7 dated May 18, 1993, Director Dennis P. Ancheta, Legal Service, DOLE, stated that he believed that an employer-employee relationship existed between petitioner and respondent based on the Retainer Agreement and the Comprehensive Medical Plan, and the application of the "four-fold" test. However, Director Ancheta emphasized that the existence of employer-employee relationship is a question of fact. Hence, termination disputes or money claims arising from employer-employee relations exceeding P5,000 may be filed with the National Labor Relations Commission (NLRC). He stated that their opinion is strictly advisory.An inquiry was likewise addressed to the Social Security System (SSS). Thereafter, Mr. Romeo R. Tupas, OIC-FID of SSS-Bacolod City, wrote a letter 8 to the Personnel Officer of Coca-Cola Bottlers Phils., Inc. informing the latter that the legal staff of his office was of the opinion that the services of respondent partake of the nature of work of a regular company doctor and that he was, therefore, subject to social security coverage.Respondent inquired from the management of petitioner company whether it was agreeable to recognizing him as a regular employee. The management refused to do so.On February 24, 1994, respondent filed a Complaint 9 before the NLRC, Bacolod City, seeking recognition as a regular employee of petitioner company and prayed for the payment of all benefits of a regular employee, including 13th Month Pay, Cost of Living Allowance, Holiday

Pay, Service Incentive Leave Pay, and Christmas Bonus. The case was docketed as RAB Case No. 06-02-10138-94. DSHcTCWhile the complaint was pending before the Labor Arbiter, respondent received a letter dated March 9, 1995 from petitioner company concluding their retainership agreement effective thirty (30) days from receipt thereof. This prompted respondent to file a complaint for illegal dismissal against petitioner company with the NLRC, Bacolod City. The case was docketed as RAB Case No. 06-04-10177-95.In a Decision 10 dated November 28, 1996, Labor Arbiter Jesus N. Rodriguez, Jr. found that petitioner company lacked the power of control over respondent's performance of his duties, and recognized as valid the Retainer Agreement between the parties. Thus, the Labor Arbiter dismissed respondent's complaint in the first case, RAB Case No. 06-02-10138-94. The dispositive portion of the Decision reads:WHEREFORE, premises considered, judgment is hereby rendered dismissing the instant complaint seeking recognition as a regular employee.SO ORDERED. 11 In a Decision 12 dated February 24, 1997, Labor Arbiter Benjamin Pelaez dismissed the case for illegal dismissal (RAB Case No. 06-04-10177-95) in view of the previous finding of Labor Arbiter Jesus N. Rodriguez, Jr. in RAB Case No. 06-02-10138-94 that complainant therein, Dr. Dean Climaco, is not an employee of Coca-Cola Bottlers Phils., Inc.Respondent appealed both decisions to the NLRC, Fourth Division, Cebu City.In a Decision 13 promulgated on November 28, 1997, the NLRC dismissed the appeal in both cases for lack of merit. It declared that no employer-employee relationship existed between petitioner company and respondent based on the provisions of the Retainer Agreement which contract governed respondent's employment. HCacDERespondent's motion for reconsideration was denied by the NLRC in a Resolution 14 promulgated on August 7, 1998.Respondent filed a petition for review with the Court of Appeals.In a Decision promulgated on July 7, 2000, the Court of Appeals ruled that an employer-employee relationship existed between petitioner company and respondent after applying the four-fold test: (1) the power to hire the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer's power to control the employee with respect to the means and methods by which the work is to be accomplished.The Court of Appeals held:The Retainer Agreement executed by and between the parties, when read together with the Comprehensive Medical Plan which was made an integral part of the retainer agreements, coupled with the actual services rendered by the petitioner, would show that all the elements of the above test are present.First, the agreements provide that "the COMPANY desires to engage on a retainer basis the services of a physician and the said DOCTOR is accepting such engagement . . ." (Rollo, page 25). This clearly shows that Coca-Cola exercised its power to hire the services of petitioner.Secondly, paragraph (2) of the agreements showed that petitioner would be entitled to a final compensation of Three Thousand Eight Hundred Pesos per month, which amount was later raised to Seven Thousand Five Hundred on the latest contract. This would represent the element of payment of wages. SEACTHThirdly, it was provided in paragraph (1) of the agreements that the same shall be valid for a period of one year. "The said term notwithstanding, either party may terminate the contract upon

giving a thirty (30) day written notice to the other." (Rollo, page 25). This would show that Coca-Cola had the power of dismissing the petitioner, as it later on did, and this could be done for no particular reason, the sole requirement being the former's compliance with the 30-day notice requirement.Lastly, paragraphs (3) and (6) of the agreements reveal that Coca-Cola exercised the most important element of all, that is, control, over the conduct of petitioner in the latter's performance of his duties as a doctor for the company.It was stated in paragraph (3) that the doctor agrees to perform the duties and obligations enumerated in the Comprehensive Medical Plan referred to above. In paragraph (6), the fixed and definite hours during which the petitioner must render service to the company is laid down.We say that there exists Coca-Cola's power to control petitioner because the particular objectives and activities to be observed and accomplished by the latter are fixed and set under the Comprehensive Medical Plan which was made an integral part of the retainer agreement. Moreover, the times for accomplishing these objectives and activities are likewise controlled and determined by the company. Petitioner is subject to definite hours of work, and due to this, he performs his duties to Coca-Cola not at his own pleasure but according to the schedule dictated by the company.In addition, petitioner was designated by Coca-Cola to be a member of its Bacolod Plant's Safety Committee. The minutes of the meeting of the said committee dated February 16, 1994 included the name of petitioner, as plant physician, as among those comprising the committee. DcaCSEIt was averred by Coca-Cola in its comment that they exercised no control over petitioner for the reason that the latter was not directed as to the procedure and manner of performing his assigned tasks. It went as far as saying that "petitioner was not told how to immunize, inject, treat or diagnose the employees of the respondent (Rollo, page 228). We believe that if the "control test" would be interpreted this strictly, it would result in an absurd and ridiculous situation wherein we could declare that an entity exercises control over another's activities only in instances where the latter is directed by the former on each and every stage of performance of the particular activity. Anything less than that would be tantamount to no control at all.To our minds, it is sufficient if the task or activity, as well as the means of accomplishing it, is dictated, as in this case where the objectives and activities were laid out, and the specific time for performing them was fixed by the controlling party. 15 Moreover, the Court of Appeals declared that respondent should be classified as a regular employee having rendered six years of service as plant physician by virtue of several renewed retainer agreements. It underscored the provision in Article 280 16 of the Labor Code stating that "any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed, and his employment shall continue while such activity exists." Further, it held that the termination of respondent's services without any just or authorized cause constituted illegal dismissal.In addition, the Court of Appeals found that respondent's dismissal was an act oppressive to labor and was effected in a wanton, oppressive or malevolent manner which entitled respondent to moral and exemplary damages. AEITDHThe dispositive portion of the Decision reads:WHEREFORE, in view of the foregoing, the Decision of the National Labor Relations Commission dated November 28, 1997 and its Resolution dated August 7, 1998 are found to have been issued with grave abuse of discretion in applying the law to the established facts, and

are hereby REVERSED and SET ASIDE, and private respondent Coca-Cola Bottlers, Phils., Inc. is hereby ordered to:1. Reinstate the petitioner with full backwages without loss of seniority rights from the time his compensation was withheld up to the time he is actually reinstated; however, if reinstatement is no longer possible, to pay the petitioner separation pay equivalent to one (1) month's salary for every year of service rendered, computed at the rate of his salary at the time he was dismissed, plus backwages.2. Pay petitioner moral damages in the amount of P50,000.00.3. Pay petitioner exemplary damages in the amount of P50,000.00.4. Give to petitioner all other benefits to which a regular employee of Coca-Cola is entitled from the time petitioner became a regular employee (one year from effectivity date of employment) until the time of actual payment.SO ORDERED. 17 Petitioner company filed a motion for reconsideration of the Decision of the Court of Appeals.In a Resolution promulgated on January 30, 2001, the Court of Appeals stated that petitioner company noted that its Decision failed to mention whether respondent was a full-time or part-time regular employee. It also questioned how the benefits under their Collective Bargaining Agreement which the Court awarded to respondent could be given to him considering that such benefits were given only to regular employees who render a full day's work of not less than eight hours. It was admitted that respondent is only required to work for two hours per day. HDATCcThe Court of Appeals clarified that respondent was a "regular part-time employee and should be accorded all the proportionate benefits due to this category of employees of [petitioner] Corporation under the CBA." It sustained its decision on all other matters sought to be reconsidered.Hence, this petition filed by Coca-Cola Bottlers Phils., Inc.The issues are:1. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS COMMISSION, CONTRARY TO THE DECISIONS OF THE HONORABLE SUPREME COURT ON THE MATTER.2. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS COMMISSION, AND HOLDING INSTEAD THAT THE WORK OF A PHYSICIAN IS NECESSARY AND DESIRABLE TO THE BUSINESS OF SOFTDRINKS MANUFACTURING, CONTRARY TO THE RULINGS OF THE SUPREME COURT IN ANALOGOUS CASES. IHCacT3. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS COMMISSION, AND HOLDING INSTEAD THAT THE PETITIONERS EXERCISED CONTROL OVER THE WORK OF THE RESPONDENT.4. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS

COMMISSION, AND FINDING THAT THERE IS EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO ARTICLE 280 OF THE LABOR CODE.5. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS COMMISSION, AND FINDING THAT THERE EXISTED ILLEGAL DISMISSAL WHEN THE EMPLOYMENT OF THE RESPONDENT WAS TERMINATED WITHOUT JUST CAUSE.6. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS COMMISSION, AND FINDING THAT THE RESPONDENT IS A REGULAR PART TIME EMPLOYEE WHO IS ENTITLED TO PROPORTIONATE BENEFITS AS A REGULAR PART TIME EMPLOYEE ACCORDING TO THE PETITIONERS' CBA. CAIaDT7. THAT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR, BASED ON A SUBSTANTIAL QUESTION OF LAW, IN REVERSING THE FINDINGS OF THE LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS COMMISSION, AND FINDING THAT THE RESPONDENT IS ENTITLED TO MORAL AND EXEMPLARY DAMAGES.The main issue in this case is whether or not there exists an employer-employee relationship between the parties. The resolution of the main issue will determine whether the termination of respondent's employment is illegal.The Court, in determining the existence of an employer-employee relationship, has invariably adhered to the four-fold test: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct, or the so-called "control test," considered to be the most important element. 18 The Court agrees with the finding of the Labor Arbiter and the NLRC that the circumstances of this case show that no employer-employee relationship exists between the parties. The Labor Arbiter and the NLRC correctly found that petitioner company lacked the power of control over the performance by respondent of his duties. The Labor Arbiter reasoned that the Comprehensive Medical Plan, which contains the respondent's objectives, duties and obligations, does not tell respondent "how to conduct his physical examination, how to immunize, or how to diagnose and treat his patients, employees of [petitioner] company, in each case." He likened this case to that of Neri v. National Labor Relations Commission, 19 which held:In the case of petitioner Neri, it is admitted that FEBTC issued a job description which detailed her functions as a radio/telex operator. However, a cursory reading of the job description shows that what was sought to be controlled by FEBTC was actually the end result of the task, e.g., that the daily incoming and outgoing telegraphic transfer of funds received and relayed by her, respectively, tallies with that of the register. The guidelines were laid down merely to ensure that the desired end result was achieved. It did not, however, tell Neri how the radio/telex machine should be operated. STADIHIn effect, the Labor Arbiter held that petitioner company, through the Comprehensive Medical Plan, provided guidelines merely to ensure that the end result was achieved, but did not control the means and methods by which respondent performed his assigned tasks.The NLRC affirmed the findings of the Labor Arbiter and stated that it is precisely because the company lacks the power of control that the contract provides that respondent shall be directly

responsible to the employee concerned and their dependents for any injury, harm or damage caused through professional negligence, incompetence or other valid causes of action.The Labor Arbiter also correctly found that the provision in the Retainer Agreement that respondent was on call during emergency cases did not make him a regular employee. He explained, thus:Likewise, the allegation of complainant that since he is on call at anytime of the day and night makes him a regular employee is off-tangent. Complainant does not dispute the fact that outside of the two (2) hours that he is required to be at respondent company's premises, he is not at all further required to just sit around in the premises and wait for an emergency to occur so as to enable him from using such hours for his own benefit and advantage. In fact, complainant maintains his own private clinic attending to his private practice in the city, where he services his patients, bills them accordingly — and if it is an employee of respondent company who is attended to by him for special treatment that needs hospitalization or operation, this is subject to a special billing. More often than not, an employee is required to stay in the employer's workplace or proximately close thereto that he cannot utilize his time effectively and gainfully for his own purpose. Such is not the prevailing situation here. acHETIIn addition, the Court finds that the schedule of work and the requirement to be on call for emergency cases do not amount to such control, but are necessary incidents to the Retainership Agreement.The Court also notes that the Retainership Agreement granted to both parties the power to terminate their relationship upon giving a 30-day notice. Hence, petitioner company did not wield the sole power of dismissal or termination.The Court agrees with the Labor Arbiter and the NLRC that there is nothing wrong with the employment of respondent as a retained physician of petitioner company and upholds the validity of the Retainership Agreement which clearly stated that no employer-employee relationship existed between the parties. The Agreement also stated that it was only for a period of 1 year beginning January 1, 1988 to December 31, 1998, but it was renewed on a yearly basis.Considering that there is no employer-employee relationship between the parties, the termination of the Retainership Agreement, which is in accordance with the provisions of the Agreement, does not constitute illegal dismissal of respondent. Consequently, there is no basis for the moral and exemplary damages granted by the Court of Appeals to respondent due to his alleged illegal dismissal.WHEREFORE, the petition is GRANTED and the Decision and Resolution of the Court of Appeals are REVERSED and SET ASIDE. The Decision and Resolution dated November 28, 1997 and August 7, 1998, respectively, of the National Labor Relations Commission are REINSTATED. ICcDaANo costs.SO ORDERED.

G.R. No. 164652: THELMA DUMPIT-MURILLO vs COURT OF APPEALS, ASSOCIATED BROADCASTING COMPANY, JOSE JAVIER AND EDWARD TAN

8 June 2007 l Labor Standards

Fixed-Term Employee vs Regular Employee

 

 

 

Dumpit was hired by ABC as a newscaster in 1995. Her contract with the TV station was repeatedly renewed until 1999. She then wrote Jose Javier (VP for News and Public Affairs of ABC) advising him of her intention to renew the contract.

 

Javier did not respond.

 

Dumpit then demanded reinstatement as well as her backwages, service incentive leave pays and other monetary benefits.

 

ABC said they could only pay her backwages but her other claims had no basis as she was not entitled thereto because she is considered as a talent and not a regular employee.

 

Dumpit sued ABC. The Labor Arbiter ruled against Dumpit. The National Labor Relations Commission reversed the LA. The Court of Appeals reversed the NLRC and ruled that as per the contract between ABC and Dumpit, Dumpit is a fixed term employee.

 

ISSUE: Whether or not Dumpit is a regular employee.

 

HELD: Yes. Dumpit was a regular employee under contemplation of law. The practice of having fixed-term contracts in the industry does not automatically make all talent contracts valid and compliant with labor law. The assertion that a talent contract exists does not necessarily prevent a regular employment status.

 

The duties of Dumpit as enumerated in her employment contract indicate that ABC had control over the work of Dumpit. Aside from control, ABC also dictated the work assignments and

payment of petitioner’s wages. ABC also had power to dismiss her. All these being present, clearly, there existed an employment relationship between Dumpit and ABC.

 

In addition, her work was continuous for a period of four years. This repeated engagement under contract of hire is indicative of the necessity and desirability of the Dumpit’s work in ABC’s business.

 

 

SECOND DIVISION

THELMA DUMPIT-MURILLO,

                             Petitioner,

 

 

 

- versus -

          G.R. No. 164652

 

          Present:

 

            QUISUMBING, J.,* Chairperson,

          CARPIO,

          CARPIO MORALES,

          TINGA, and

          VELASCO, JR., JJ. 

COURT OF APPEALS, ASSOCIATED BROADCASTING COMPANY, JOSE JAVIER AND EDWARD TAN,

                             Respondents.

 

          Promulgated:

 

 

          June 8, 2007

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

DECISION

QUISUMBING, J.:

This petition seeks to reverse and set aside both the Decision dated January

30, 2004 of the Court of Appeals in CA-G.R. SP No. 63125 and its Resolution

dated June 23, 2004 denying the motion for reconsideration. The Court of Appeals

had overturned the Resolution dated August 30, 2000 of the National Labor

Relations Commission (NLRC) ruling that petitioner was illegally dismissed.

The facts of the case are as follows:

On October 2, 1995, under Talent Contract No. NT95-1805, private

respondent Associated Broadcasting Company (ABC) hired petitioner Thelma

Dumpit-Murillo as a newscaster and co-anchor for Balitang-Balita, an early

evening news program.  The contract was for a period of three months.  It was

renewed under Talent Contracts Nos. NT95-1915, NT96-3002, NT98-4984 and

NT99-5649.  In addition, petitioner’s services were engaged for the program “Live

on Five.”  On September 30, 1999, after four years of repeated renewals,

petitioner’s talent contract expired.  Two weeks after the expiration of the last

contract, petitioner sent a letter to Mr. Jose Javier, Vice President for News and

Public Affairs of ABC, informing the latter that she was still interested in renewing

her contract subject to a salary increase.  Thereafter, petitioner stopped reporting

for work.  On November 5, 1999, she wrote Mr. Javier another letter, which we

quote verbatim:

x x x x

Dear Mr. Javier:

On October 20, 1999, I wrote you a letter in answer to your query by way of a marginal note “what terms and conditions” in response to my first letter dated October 13, 1999. To date, or for more than fifteen (15) days since then, I have not received any formal written reply. xxx

In view hereof, should I not receive any formal response from you until Monday, November 8, 1999, I will deem it as a constructive dismissal of my services.

x x x x

A month later, petitioner sent a demand letter to ABC, demanding:  (a)

reinstatement to her former position; (b) payment of unpaid wages for services

rendered from September 1 to October 20, 1999 and full backwages; (c) payment

of 13th month pay, vacation/sick/service incentive leaves and other monetary

benefits due to a regular employee starting March 31, 1996.  ABC replied that a

check covering petitioner’s talent fees for September 16 to October 20, 1999 had

been processed and prepared, but that the other claims of petitioner had no basis in

fact or in law.

On December 20, 1999, petitioner filed a complaint against ABC, Mr. Javier

and Mr. Edward Tan, for illegal constructive dismissal, nonpayment of salaries,

overtime pay, premium pay, separation pay, holiday pay, service incentive leave

pay, vacation/sick leaves and 13th month pay in NLRC-NCR Case No. 30-12-00985-

99.  She likewise demanded payment for moral, exemplary and actual damages, as

well as for attorney’s fees.

The parties agreed to submit the case for resolution after settlement failed

during the mandatory conference/conciliation.  On March 29, 2000, the Labor

Arbiter dismissed the complaint.

On appeal, the NLRC reversed the Labor Arbiter in a Resolution dated August

30, 2000.  The NLRC held that an employer-employee relationship existed between

petitioner and ABC; that the subject talent contract was void; that the petitioner was a

regular employee illegally dismissed; and that she was entitled to reinstatement and

backwages or separation pay, aside from 13th month pay and service incentive leave

pay, moral and exemplary damages and attorney’s fees.  It held as follows:

WHEREFORE, the Decision of the Arbiter dated 29 March 2000 is hereby REVERSED/SET ASIDE and a NEW ONE promulgated:

1)      declaring respondents to have illegally dismissed complainant from her regular work therein and thus, ordering them to reinstate her in her former position without loss of seniority right[s] and other privileges and to pay her full backwages, inclusive of allowances and other benefits, including 13th month pay based on her said latest rate of P28,000.00/mo. from the date of her illegal dismissal on 21 October 1999 up to finality hereof, or at complainant’s option, to pay her separation pay of one (1) month pay per year of service based on said latest monthly rate, reckoned from date of hire on 30 September 1995 until finality hereof;

2)      to pay complainant’s accrued SILP [Service Incentive Leave Pay] of 5 days pay per year and 13th month pay for the years 1999, 1998 and 1997 of P19,236.00 and P84,000.00, respectively and her accrued salary from 16 September 1999 to 20 October 1999 of P32,760.00 plus legal interest at 12% from date of judicial demand on 20 December 1999 until finality hereof;

3)      to pay complainant moral damages of P500,000.00, exemplary damages of P350,000.00 and 10% of the total of the adjudged monetary awards as attorney’s fees.

            Other monetary claims of complainant are dismissed for lack of merit.

            SO ORDERED.

After its motion for reconsideration was denied, ABC elevated the case to

the Court of Appeals in a petition for certiorari under Rule 65.  The petition was

first dismissed for failure to attach particular documents, but was reinstated on

grounds of the higher interest of justice.

Thereafter, the appellate court ruled that the NLRC committed grave abuse

of discretion, and reversed the decision of the NLRC.  The appellate court reasoned

that petitioner should not be allowed to renege from the stipulations she had

voluntarily and knowingly executed by invoking the security of tenure under the

Labor Code.  According to the appellate court, petitioner was a fixed-term

employee and not a regular employee within the ambit of Article 280 of the Labor

Code because her job, as anticipated and agreed upon, was only for a specified

time.

Aggrieved, petitioner now comes to this Court on a petition for review,

raising issues as follows:

I.

THIS HONORABLE COURT CAN REVIEW THE FINDINGS OF THE HONORABLE COURT OF APPEALS, THE DECISION OF WHICH IS NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT[;]

II.

THE PRO-FORMA TALENT CONTRACTS, AS CORRECTLY FOUND BY THE NLRC – FIRST DIVISION, ARE “ANTI-REGULARIZATION DEVICES” WHICH MUST BE STRUCK DOWN FOR REASONS OF PUBLIC POLICY[;]

III.

BY REASON OF THE CONTINUOUS AND SUCCESSIVE RENEWALS OF THE THREE-MONTH TALENT CONTRACTS, AN EMPLOYER-EMPLOYEE RELATIONSHIP WAS CREATED AS PROVIDED FOR UNDER ARTICLE 280 OF THE LABOR CODE[;]

IV.

BY THE CONSTRUCTIVE DISMISSAL OF HEREIN PETITIONER, AS A REGULAR EMPLOYEE, THERE WAS A DENIAL OF PETITIONER’S RIGHT TO DUE PROCESS THUS ENTITLING HER TO THE MONEY CLAIMS AS STATED IN THE COMPLAINT[.]

The issues for our disposition are: (1) whether or not this Court can review

the findings of the Court of Appeals; and (2) whether or not under Rule 45 of the

Rules of Court the Court of Appeals committed a reversible error in its Decision.

On the first issue, private respondents contend that the issues raised in the

instant petition are mainly factual and that there is no showing that the said issues

have been resolved arbitrarily and without basis. They add that the findings of the

Court of Appeals are supported by overwhelming wealth of evidence on record as

well as prevailing jurisprudence on the matter.

Petitioner however contends that this Court can review the findings of the

Court of Appeals, since the appellate court erred in deciding a question of

substance in a way which is not in accord with law or with applicable decisions of

this Court.

We agree with petitioner. Decisions, final orders or resolutions of the Court

of Appeals in any case — regardless of the nature of the action or proceeding

involved — may be appealed to this Court through a petition for review.  This

remedy is a continuation of the appellate process over the original case, and

considering there is no congruence in the findings of the NLRC and the Court of

Appeals regarding the status of employment of petitioner, an exception to the

general rule that this Court is bound by the findings of facts of the appellate court,

we can review such findings.

On the second issue, private respondents contend that the Court of Appeals

did not err when it upheld the validity of the talent contracts voluntarily entered

into by petitioner. It further stated that prevailing jurisprudence has recognized and

sustained the absence of employer-employee relationship between a talent and the

media entity which engaged the talent’s services on a per talent contract basis,

citing the case of Sonza v. ABS-CBN Broadcasting Corporation.

Petitioner avers however that an employer-employee relationship was

created when the private respondents started to merely renew the contracts

repeatedly fifteen times or for four consecutive years.

Again, we agree with petitioner. The Court of Appeals committed reversible

error when it held that petitioner was a fixed-term employee. Petitioner was a

regular employee under contemplation of law. The practice of having fixed-term

contracts in the industry does not automatically make all talent contracts valid and

compliant with labor law. The assertion that a talent contract exists does not

necessarily prevent a regular employment status.

Further, the Sonza case is not applicable. In Sonza, the television station did

not instruct Sonza how to perform his job. How Sonza delivered his lines, appeared

on television, and sounded on radio were outside the television station’s control.

Sonza had a free hand on what to say or discuss in his shows provided he did not

attack the television station or its interests. Clearly, the television station did not

exercise control over the means and methods of the performance of Sonza’s work.

In the case at bar, ABC had control over the performance of petitioner’s work.

Noteworthy too, is the comparatively low P28,000 monthly pay of petitioner vis

the P300,000 a month salary of Sonza, that all the more bolsters the conclusion that

petitioner was not in the same situation as Sonza.

The contract of employment of petitioner with ABC had the following

stipulations:

x x x x

1. SCOPE OF SERVICES – TALENT agrees to devote his/her talent, time, attention and best efforts in the performance of his/her duties and responsibilities as Anchor/Program Host/Newscaster of the Program, in accordance with the direction of ABC and/or its authorized representatives.

 

1.1.   DUTIES AND RESPONSIBILITIES – TALENT shall: 

a.       Render his/her services as a newscaster on the Program;b.      Be involved in news-gathering operations by conducting interviews

on- and off-the-air;c.       Participate in live remote coverages when called upon;d.      Be available for any other news assignment, such as writing, research

or camera work;e.       Attend production meetings;f.        On assigned days, be at the studios at least one (1) hour before the live

telecasts;g.       Be present promptly at the studios and/or other place of assignment at

the time designated by ABC;h.       Keep abreast of the news;i.         Give his/her full cooperation to ABC and its duly authorized

representatives in the production and promotion of the Program; andj.        Perform such other functions as may be assigned to him/her from time

to time.

x x x x

            1.3 COMPLIANCE WITH STANDARDS, INSTRUCTIONS AND OTHER RULES AND REGULATIONS – TALENT agrees that he/she will promptly and faithfully comply with the requests and instructions, as well as the program standards, policies, rules and regulations of ABC, the KBP and the government or any of its agencies and instrumentalities.

x x x x

          In Manila Water Company, Inc. v. Pena, we said that the elements to determine

the existence of an employment relationship are:  (a) the selection and engagement of

the employee, (b) the payment of wages, (c) the power of dismissal, and (d) the

employer’s power to control. The most important element is the employer’s control of

the employee’s conduct, not only as to the result of the work to be done, but also as to

the means and methods to accomplish it.

The duties of petitioner as enumerated in her employment contract indicate

that ABC had control over the work of petitioner.  Aside from control, ABC also

dictated the work assignments and payment of petitioner’s wages.  ABC also had

power to dismiss her.  All these being present, clearly, there existed an

employment relationship between petitioner and ABC.

Concerning regular employment, the law provides for two kinds of

employees, namely:  (1) those who are engaged to perform activities which are

usually necessary or desirable in the usual business or trade of the employer; and

(2) those who have rendered at least one year of service, whether continuous or

broken, with respect to the activity in which they are employed.  In other words,

regular status arises from either the nature of work of the employee or the duration

of his employment.  In Benares v. Pancho, we very succinctly said:

…[T]he primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee vis-à-vis the usual trade or business of the employer.  This 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.  If the employee has been performing the job for at least a 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 indispensability of that activity to the business.  Hence, the employment is considered regular, but only with respect to such activity and while such activity exists.

In our view, the requisites for regularity of employment have been met in the

instant case.  Gleaned from the description of the scope of services

aforementioned, petitioner’s work was necessary or desirable in the usual business

or trade of the employer which includes, as a pre-condition for its enfranchisement,

its participation in the government’s news and public information dissemination.

In addition, her work was continuous for a period of four years.  This repeated

engagement under contract of hire is indicative of the necessity and desirability of

the petitioner’s work in private respondent ABC’s business.

The contention of the appellate court that the contract was characterized by a

valid fixed-period employment is untenable.  For such contract to be valid, it should

be shown that the fixed period was knowingly and voluntarily agreed upon by the

parties.  There should have been no force, duress or improper pressure brought to bear

upon the employee; neither should there be any other circumstance that vitiates the

employee’s consent.  It should satisfactorily appear that the employer and the

employee dealt with each other on more or less equal terms with no moral dominance

being exercised by the employer over the employee.  Moreover, fixed-term

employment will not be considered valid where, from the circumstances, it is apparent

that periods have been imposed to preclude acquisition of tenurial security by the

employee.

In the case at bar, it does not appear that the employer and employee dealt with

each other on equal terms.  Understandably, the petitioner could not object to the terms

of her employment contract because she did not want to lose the job that she loved and

the workplace that she had grown accustomed to, which is exactly what happened when

she finally manifested her intention to negotiate.  Being one of the numerous

newscasters/broadcasters of ABC and desiring to keep her job as a broadcasting

practitioner, petitioner was left with no choice but to affix her signature of conformity

on each renewal of her contract as already prepared by private respondents; otherwise,

private respondents would have simply refused to renew her contract.  Patently, the

petitioner occupied a position of weakness vis-à-vis the employer.  Moreover, private

respondents’ practice of repeatedly extending petitioner’s 3-month contract for four

years is a circumvention of the acquisition of regular status.  Hence, there was no valid

fixed-term employment between petitioner and private respondents.

While this Court has recognized the validity of fixed-term employment

contracts in a number of cases, it has consistently emphasized that when the

circumstances of a case show that the periods were imposed to block the

acquisition of security of tenure, they should be struck down for being contrary to

law, morals, good customs, public order or public policy.    

As a regular employee, petitioner is entitled to security of tenure and can be

dismissed only for just cause and after due compliance with procedural due process.

Since private respondents did not observe due process in constructively dismissing the

petitioner, we hold that there was an illegal dismissal.

WHEREFORE, the challenged Decision dated January 30, 2004 and

Resolution dated June 23, 2004 of the Court of Appeals in CA-G.R. SP No. 63125,

which held that the petitioner was a fixed-term employee, are REVERSED and

SET ASIDE.  The NLRC decision is AFFIRMED.

Costs against private respondents.

SO ORDERED.

 

 

 

  LEONARDO A. QUISUMBING

Acting Chief Justice

 

WE CONCUR:

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

C E R T I F I C A T I O N

 

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.`

 

 

 

 

  LEONARDO A. QUISUMBING

Acting Chief Justice

 

*       Acting Chief Justice.

      Rollo, pp. 207-220.  Penned by Associate Justice Edgardo F. Sundiam, with Associate Justices Eubulo G. Verzola and Remedios Salazar-Fernando concurring.

      Id. at 246.  Penned by Associate Justice Edgardo F. Sundiam, with Associate Justices Remedios Salazar-Fernando and Mariano C. Del Castillo concurring.

      Id. at 90-125.

      CA rollo, pp. 105-107.

      Id. at 108-112.

      Id. at 121.

      Id. at 123.

      Id. at 213-214.

      Id. at 155-169.

    Id. at 124-125.

    Rollo, p. 180.

    Id. at 195.

    Id. at 220.

    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 a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

    Rollo, p. 217.

    Id. at 382.

    Id. at 335.

    Id. at 387.

    Pagoda Philippines, Inc. v. Universal Canning, Inc., G.R. No. 160966, October 11, 2005, 472 SCRA 355, 359.

    Cirelos v. Hernandez, G.R. No. 146523, June 15, 2006, 490 SCRA 625, 635.

    G.R. No. 138051, June 10, 2004, 431 SCRA 583.

    Rollo, pp. 420-421.

    See ABS-CBN Broadcasting Corporation v. Marquez, G.R. No. 167638, June 22, 2005, pp. 5-6 (Unsigned Resolution), where the Court held what petitioner ABS-CBN called “talents” as regular employees. The Court declared: “It may be so that respondents were assigned to a particular tele-series. However, petitioner can and did immediately reassign them to a new production upon completion of a previous one. Hence, they were continuously employed, the tele-series being a regular feature in petitioner’s network programs. Petitioner’s continuous engagement of respondents from one production after another, for more than five years, made the latter part of petitioner’s workpool who cannot be separated from the service without cause as they are considered regular. A project employee or a member of a workpool may acquire the status of a regular employee when the following concur: there is continuous rehiring of project employees even after the cessation of the project and the tasks performed by the alleged “project employee” are vital, necessary, and indispensable to the usual business or trade

of his employer. It cannot be denied that the services of respondents as members of a crew in the production of a tele-series are undoubtedly connected with the business of the petitioner. This Court has held that the primary standard in determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the business or trade of his employer. Here, the activity performed by respondents is, without doubt, vital to petitioner’s trade or business.”

     See Sonza v. ABS-CBN Broadcasting Corporation, supra note 21, at 599, which also held that in the United States, aside from the right of control test, there are the “economic reality” test and the “multi-factor test.”  The tests are drawn from statutes, regulations, rules, policies, rulings, case law and the like.  The “right of control” test applies under the Federal Internal Revenue Code (“IRC”).  The “economic reality” test applies to the Federal Fair Labor Standards Act (“FLSA”).  The California Division of Labor Standards Enforcement (“DLSE”) uses a hybrid of these two tests often referred to as the “multi-factor test” in determining who an employee is.

     Rollo, p. 95.

     Supra note 21, at 596.

    CA rollo, p. 113.

    G.R. No. 158255, July 8, 2004, 434 SCRA 53.

    Id. at 61, 62.

    Philippine Fruit & Vegetable Industries, Inc. v. NLRC, G.R. No. 122122, July 20, 1999, 310 SCRA 673, 681.

    Bernardo v. National Labor Relations Commission, G.R. No. 122917, July 12, 1999, 310 SCRA 186, 204-205.

   G.R. No. 151827, April 29, 2005, 457 SCRA 652.

    Id. at 660.

    Samson v. National Labor Relations Commission, G.R. No. 113166, February 1, 1996, 253 SCRA 112, 123.

    Brent School, Inc. v. Zamora, G.R. No. 48494, February 5, 1990, 181 SCRA 702, 716 cited in Pangilinan v. General Milling Corporation, G.R. No. 149329, July 12, 2004, 434 SCRA 159, 170.

    Pangilinan v. General Milling Corporation, id.

    Integrated Contractor and Plumbing Works, Inc. v. National Labor Relations Commission, G.R. No. 152427, August 9, 2005, 466 SCRA 265, 273.

    Rollo, p. 425.

    Innodata Philippines, Inc. v. Quejada-Lopez, G.R. No. 162839, October 12, 2006, 504 SCRA 253, 258-259.

G.R. No. 162833 June 15, 2007

LIKHA-PMPB vs. BURLINGAME CORP.

SECOND DIVISION

[G.R. No. 162833. June 15, 2007.]

LAKAS SA INDUSTRIYA NG KAPATIRANG HALIGI NG ALYANSA-PINAGBUKLOD NG MANGGAGAWANG PROMO NG BURLINGAME, petitioner, vs. BURLINGAME CORPORATION, respondent.

D E C I S I O N

QUISUMBING, J p:

This is an appeal to reverse and set aside both the Decision 1 dated August 29, 2003 of the Court of Appeals and its Resolution 2 dated March 15, 2004 in CA-G.R. SP No. 69639. The appellate court had reversed the decision 3 dated December 29, 2000 of the Secretary of Labor and Employment which ordered the holding of a certification election among the rank-and-file promo employees of respondent Burlingame Corporation. ACaTIc

The facts are undisputed.

On January 17, 2000, the petitioner Lakas sa Industriya ng Kapatirang Haligi ng Alyansa-Pinagbuklod ng Manggagawang Promo ng Burlingame (LIKHA-PMPB) filed a petition for certification election before the Department of Labor and Employment (DOLE). LIKHA-PMPB sought to represent all rank-and-file promo employees of respondent numbering about 70 in all. The petitioner claimed that there was no existing union in the aforementioned establishment representing the regular rank-and-file promo employees. It prayed that it be voluntarily recognized by the respondent to be the collective bargaining agent, or, in the alternative, that a certification/consent election be held among said regular rank-and-file promo employees.

The respondent filed a motion to dismiss the petition. It argued that there exists no employer-employee relationship between it and the petitioner's members. It further alleged that the petitioner's members are actually employees of F. Garil Manpower Services (F. Garil), a duly licensed local employment agency. To prove such contention, respondent presented a copy of its contract for manpower services with F. Garil.

On June 29, 2000, Med-Arbiter Renato D. Parungo dismissed 4 the petition for lack of employer-employee relationship, prompting the petitioner to file an appeal 5 before the Secretary of Labor and Employment.

On December 29, 2000, the Secretary of Labor and Employment ordered the immediate conduct of a certification election. 6

A motion for reconsideration of the said decision was filed by the respondent on January 19, 2001, but the same was denied in the Resolution 7 of February 19, 2002 of the Secretary of Labor and Employment.

Respondent then filed a complaint with the Court of Appeals, which then reversed 8 the decision of the Secretary. The petitioner then filed a motion for reconsideration, 9 which the Court of Appeals denied 10 on March 15, 2004.

Hence the instant petition for review on certiorari.

The issue raised in the petition is:

WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN DECLARING THAT THERE IS NO EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN PETITIONER'S MEMBERS AND BURLINGAME BECAUSE F. GARIL MANPOWER SERVICES IS AN INDEPENDENT CONTRACTOR. 11 TaCEHA

Respondent contends that there is no employer-employee relationship between the parties. 12 Petitioner, on the other hand, insists that there is. 13

The resolution of this issue boils down to a determination of the true status of F. Garil, i.e., whether it is an independent contractor or a labor-only contractor.

The case of De Los Santos v. NLRC 14 succinctly enunciates the statutory criteria:

Job contracting is permissible only if the following conditions are met: 1) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and 2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of the business. 15

According to Section 5 of DOLE Department Order No. 18-02, Series of 2002: 16

Section 5. Prohibition against labor-only contracting. — Labor-only contracting is hereby declared prohibited. For this purpose, labor-only contracting shall refer to an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and any of the following elements are [is] present:

i) The contractor or sub-contractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or

ii) The contractor does not exercise the right to control over the performance of the work of the contractual employee.

The foregoing provisions shall be without prejudice to the application of Article 248(C) of the Labor Code, as amended.

"Substantial capital or investment" refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipment, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out. EcTaSC

The "right to control" shall refer to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end.

Given the above criteria, we agree with the Secretary that F. Garil is not an independent contractor.

First, F. Garil does not have substantial capitalization or investment in the form of tools, equipment, machineries, work premises, and other materials, to qualify as an independent contractor. No proof was adduced to show F. Garil's capitalization.

Second, the work of the promo-girls was directly related to the principal business or operation of Burlingame. Marketing and selling of products is an essential activity to the main business of the principal.

Lastly, F. Garil did not carry on an independent business or undertake the performance of its service contract according to its own manner and method, free from the control and supervision of its principal, Burlingame.

The "four-fold test" will show that respondent is the employer of petitioner's members. The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer's power to control the employee's conduct. The most important element is the employer's control of the employee's conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it. 17

A perusal of the contractual stipulations between Burlingame and F. Garil shows the following:

1. The AGENCY shall provide Burlingame Corporation or the CLIENT, with sufficient number of screened, tested and pre-selected personnel (professionals, highly-skilled, skilled, semi-skilled and unskilled) who will be deployed in establishment selling products manufactured by the CLIENT.

2. The AGENCY shall be responsible in paying its workers under this contract in accordance with the new minimum wage including the daily living allowances and shall pay them overtime or remuneration that which is authorized by law. DAEcIS

3. It is expressly understood and agreed that the worker(s) supplied shall be considered or treated as employee(s) of the AGENCY. Consequently, there shall be no employer-employee relationship between the worker(s) and the CLIENT and as such, the AGENCY shall be responsible to the benefits mandated by law.

4. For and in consideration of the service to be rendered by the AGENCY to the CLIENT, the latter shall during the terms of agreement pay to the AGENCY the sum of Seven Thousand Five Hundred Pesos Only (P7,500.00) per month per worker on the basis of Eight (8) hours work payable up-to-date, semi-monthly, every 15th and 30th of each calendar month. However, these rates may be subject to change proportionately in the event that there will be revisions in the Minimum Wage Law or any law related to salaries and wages.

5. The CLIENT shall report to the AGENCY any of its personnel assigned to it if those personnel are found to be inefficient, troublesome, uncooperative and not observing the rules and regulations set forth by the CLIENT. It is understood and agreed that the CLIENT may request any time the immediate replacement of any personnel(s) assigned to them. 18

It is patent that the involvement of F. Garil in the hiring process was only with respect to the recruitment aspect, i.e. the screening, testing and pre-selection of the personnel it provided to Burlingame. The actual hiring itself was done through the deployment of personnel to establishments by Burlingame.

The contract states that Burlingame would pay the workers through F. Garil, stipulating that Burlingame shall pay F. Garil a certain sum per worker on the basis of eight-hour work every 15th and 30th of each calendar month. This evinces the fact that F. Garil merely served as conduit in the payment of wages to the deployed personnel. The interpretation would have been different if the payment was for the job, project, or services rendered during the month and not on a per worker basis. In Vinoya v. National Labor Relations Commission, 19 we held:

The Court takes judicial notice of the practice of employers who, in order to evade the liabilities under the Labor Code, do not issue payslips directly to their employees. Under the current practice, a third person, usually the purported contractor (service or manpower placement agency), assumes the act of paying the wage. For this reason, the lowly worker is unable to show proof that it was directly paid by the true employer. Nevertheless, for the workers, it is enough that they actually receive their pay, oblivious of the need for payslips, unaware of its legal implications. Applying this principle to the case at bar, even though the wages were coursed through PMCI, we note that the funds actually came from the pockets of RFC. Thus, in the end, RFC is still the one who paid the wages of petitioner albeit indirectly. 20

The contract also provides that "any personnel found to be inefficient, troublesome, uncooperative and not observing the rules and regulations set forth by Burlingame shall be reported to F. Garil and may be replaced upon request." Corollary to this circumstance would be the exercise of control and supervision by Burlingame over workers supplied by F. Garil in order to establish the inefficient, troublesome, and uncooperative nature of undesirable personnel. Also implied in the provision on replacement of personnel carried upon request by Burlingame is the power to fire personnel. DTcACa

These are indications that F. Garil was not left alone in the supervision and control of its alleged employees. Consequently, it can be concluded that F. Garil was not an independent contractor since it did not carry a distinct business free from the control and supervision of Burlingame.

It goes without saying that the contractual stipulation on the nonexistence of an employer-employee relationship between Burlingame and the personnel provided by F. Garil has no legal effect. While the parties may freely stipulate terms and conditions of a contract, such contractual stipulations should not be contrary to law, morals, good customs, public order or public policy. A contractual stipulation to the contrary cannot override factual circumstances firmly establishing the legal existence of an employer-employee relationship.

Under this circumstance, there is no doubt that F. Garil was engaged in labor-only contracting, and as such, is considered merely an agent of Burlingame. In labor-only contracting, the law creates an employer-employee relationship to prevent a circumvention of labor laws. The contractor is considered merely an agent of the principal employer and the latter is responsible to the employees of the labor-only contractor as if such employees had been directly employed by the principal employer. 21 Since F. Garil is a labor-only contractor, the workers it supplied should be considered as employees of Burlingame in the eyes of the law.

WHEREFORE, the challenged Decision of the Court of Appeals dated August 29, 2003 and the Resolution dated March 15, 2004 denying the motion for reconsideration are REVERSED and SET ASIDE. The decision of the Secretary of Labor and Employment ordering the holding of a certification election among the rank-and-file promo employees of Burlingame is reinstated.

Costs against respondent. aSTcCE

SO ORDERED.

FAR EAST AGRICULTURAL SUPPLY, INC., ET AL. vs. JIMMY LEBATIQUE, ET AL.

SECOND DIVISION

[G.R. No. 162813. February 12, 2007.]

FAR EAST AGRICULTURAL SUPPLY, INC. and/or ALEXANDER UY, petitioners, vs. JIMMY LEBATIQUE and THE HONORABLE COURT OF APPEALS, respondents.

D E C I S I O N

QUISUMBING, J p:

Before us is a petition for review on certiorari assailing the Decision 1 dated September 30, 2003 of the Court of Appeals in CA-G.R. SP No. 76196 and its Resolution 2 dated March 15, 2004 denying the motion for reconsideration. The appellate court had reversed the Decision 3 dated October 15, 2002 of the National Labor Relations Commission (NLRC) setting aside the Decision 4 dated June 27, 2001 of the Labor Arbiter. IADaSE

Petitioner Far East Agricultural Supply, Inc. (Far East) hired on March 4, 1996 private respondent Jimmy Lebatique as truck driver with a daily wage of P223.50. He delivered animal feeds to the company's clients.

On January 24, 2000, Lebatique complained of nonpayment of overtime work particularly on January 22, 2000, when he was required to make a second delivery in Novaliches, Quezon City. That same day, Manuel Uy, brother of Far East's General Manager and petitioner Alexander Uy, suspended Lebatique apparently for illegal use of company vehicle. Even so, Lebatique reported for work the next day but he was prohibited from entering the company premises.

On January 26, 2000, Lebatique sought the assistance of the Department of Labor and Employment (DOLE) Public Assistance and Complaints Unit concerning the nonpayment of his overtime pay. According to Lebatique, two days later, he received a telegram from petitioners requiring him to report for work. When he did the next day, January 29, 2000, Alexander asked him why he was claiming overtime pay. Lebatique explained that he had never been paid for overtime work since he started working for the company. He also told Alexander that Manuel had fired him. After talking to Manuel, Alexander terminated Lebatique and told him to look for another job. HCETDS

On March 20, 2000, Lebatique filed a complaint for illegal dismissal and nonpayment of overtime pay. The Labor Arbiter found that Lebatique was illegally dismissed, and ordered his reinstatement and the payment of his full back wages, 13th month pay, service incentive leave pay, and overtime pay. The dispositive portion of the decision is quoted herein in full, as follows:

WHEREFORE, we find the termination of complainant illegal. He should thus be ordered reinstated with full backwages. He is likewise ordered paid his 13th month pay, service incentive leave pay and overtime pay as computed by the Computation and Examination Unit as follows:

a) Backwages:

01/25/00 - 10/31/00 = 9.23 mos.

P223.50 x 26 x 9.23 = P53,635.53

11/01/00 - 06/26/01 = 7.86 mos.

P250.00 x 26 x 7.86 = 51,090.00 P104,725.53

13th Month Pay: 1/12 of P104,725.53 = 8,727.13

Service Incentive Leave Pay

01/25/00 - 10/31/00 = 9.23 mos.

P223.50 x 5/12 x 9.23 = P859.54

11/01/00 - 06/26/01 = 7.86 mos.

P250.00 x 5/12 x 7.86 = [818.75] 1,678.29 115,130.95

b) Overtime Pay: (3 hours/day)

03/20/97 - 4/30/97 = 1.36 mos.

P180/8 x 1.25 x 3 x 26 x 1.36 = P2,983.50

05/01/97 - 02/05/98 = 9.16 mos.

P185/8 x 1.25 x 3 x 26 x 9.16 = 20,652.94

02/06/98 - 10/30/99 = 20.83 mos.

P198/8 x 1.25 x 3 x 26 x [20.83] = 50,265.39

10/31/99 - 01/24/00 = 2.80 mos.

P223.50/8 x 1.25 x 3 x 26 x 2.80 = 7,626.94 81,528.77

TOTAL AWARD P196,659.72

SO ORDERED. 5

On appeal, the NLRC reversed the Labor Arbiter and dismissed the complaint for lack of merit. The NLRC held that there was no dismissal to speak of since Lebatique was merely suspended. Further, it found that Lebatique was a field personnel, hence, not entitled to overtime pay and service incentive leave pay. Lebatique sought reconsideration but was denied. ASTIED

Aggrieved, Lebatique filed a petition for certiorari with the Court of Appeals.

The Court of Appeals, in reversing the NLRC decision, reasoned that Lebatique was suspended on January 24, 2000 but was illegally dismissed on January 29, 2000 when Alexander told him to look for another job. It also found that Lebatique was not a field personnel and therefore entitled to payment of overtime pay, service incentive leave pay, and 13th month pay.

It reinstated the decision of the Labor Arbiter as follows:

WHEREFORE, premises considered, the decision of the NLRC dated 27 December 2002 is hereby REVERSED and the Labor Arbiter's decision dated 27 June 2001 REINSTATED.

SO ORDERED. 6

Petitioners moved for reconsideration but it was denied.

Hence, the instant petition wherein petitioners assign the following errors:

THE COURT OF APPEALS . . . ERRED IN REVERSING THE DECISION OF THE NATIONAL LABOR RELATIONS COMMISSION DATED 15 OCTOBER 2002 AND IN RULING THAT THE PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.

THE COURT OF APPEALS . . . ERRED IN REVERSING THE DECISION OF THE NATIONAL LABOR RELATIONS COMMISSION DATED 15 OCTOBER 2002 AND IN RULING THAT PRIVATE RESPONDENT IS NOT A FIELD PERSONNEL AND THER[E]FORE ENTITLED TO OVERTIME PAY AND SERVICE INCENTIVE LEAVE PAY.

THE COURT OF APPEALS . . . ERRED IN NOT DISMISSING THE PETITION FOR CERTIORARI FOR FAILURE OF PRIVATE RESPONDENT TO ATTACH CERTIFIED TRUE COPIES OF THE QUESTIONED DECISION AND RESOLUTION OF THE PUBLIC RESPONDENT. 7

Simply stated, the principal issues in this case are: (1) whether Lebatique was illegally dismissed; and (2) whether Lebatique was a field personnel, not entitled to overtime pay.

Petitioners contend that, (1) Lebatique was not dismissed from service but merely suspended for a day due to violation of company rules; (2) Lebatique was not barred from entering the company premises since he never reported back to work; and (3) Lebatique is estopped from claiming that he was illegally dismissed since his complaint before the DOLE was only on the nonpayment of his overtime pay.

Also, petitioners maintain that Lebatique, as a driver, is not entitled to overtime pay since he is a field personnel whose time outside the company premises cannot be determined with reasonable certainty. According to petitioners, the drivers do not observe regular working hours unlike the other office employees. The drivers may report early in the morning to make their deliveries or in the afternoon, depending on the production of animal feeds and the traffic conditions. Petitioners also aver that Lebatique worked for less than eight hours a day. 8

Lebatique for his part insists that he was illegally dismissed and was not merely suspended. He argues that he neither refused to work nor abandoned his job. He further contends that abandonment of work is inconsistent with the filing of a complaint for illegal dismissal. He also claims that he is not a field personnel, thus, he is entitled to overtime pay and service incentive leave pay.

After consideration of the submission of the parties, we find that the petition lacks merit. We are in agreement with the decision of the Court of Appeals sustaining that of the Labor Arbiter.

It is well settled that in cases of illegal dismissal, the burden is on the employer to prove that the termination was for a valid cause. 9 In this case, petitioners failed to discharge such burden. Petitioners aver that Lebatique was merely suspended for one day but he abandoned his work thereafter. To constitute abandonment as a just cause for dismissal, there must be: (a) absence without justifiable

reason; and (b) a clear intention, as manifested by some overt act, to sever the employer-employee relationship. 10

The records show that petitioners failed to prove that Lebatique abandoned his job. Nor was there a showing of a clear intention on the part of Lebatique to sever the employer-employee relationship. When Lebatique was verbally told by Alexander Uy, the company's General Manager, to look for another job, Lebatique was in effect dismissed. Even assuming earlier he was merely suspended for illegal use of company vehicle, the records do not show that he was afforded the opportunity to explain his side. It is clear also from the sequence of the events leading to Lebatique's dismissal that it was Lebatique's complaint for nonpayment of his overtime pay that provoked the management to dismiss him, on the erroneous premise that a truck driver is a field personnel not entitled to overtime pay. DaEcTC

An employee who takes steps to protest his layoff cannot by any stretch of imagination be said to have abandoned his work and the filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment. 11 A contrary notion would not only be illogical but also absurd.

It is immaterial that Lebatique had filed a complaint for nonpayment of overtime pay the day he was suspended by management's unilateral act. What matters is that he filed the complaint for illegal dismissal on March 20, 2000, after he was told not to report for work, and his filing was well within the prescriptive period allowed under the law.

On the second issue, Article 82 of the Labor Code is decisive on the question of who are referred to by the term "field personnel." It provides, as follows:

ART. 82. Coverage. — The provisions of this title [Working Conditions and Rest Periods] shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

xxx xxx xxx

"Field personnel" shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

In Auto Bus Transport Systems, Inc. v. Bautista, 12 this Court emphasized that the definition of a "field personnel" is not merely concerned with the location where the employee regularly performs his duties but also with the fact that the employee's performance is unsupervised by the employer. We held that 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 the field cannot be determined with reasonable certainty. Thus, in order to determine whether an employee is a field employee, it is also necessary to ascertain if actual hours of work in the field can be determined with reasonable certainty by the

employer. In so doing, an inquiry must be made as to whether or not the employee's time and performance are constantly supervised by the employer. 13

As correctly found by the Court of Appeals, Lebatique is not a field personnel as defined above for the following reasons: (1) company drivers, including Lebatique, are directed to deliver the goods at a specified time and place; (2) they are not given the discretion to solicit, select and contact prospective clients; and (3) Far East issued a directive that company drivers should stay at the client's premises during truck-ban hours which is from 5:00 to 9:00 a.m. and 5:00 to 9:00 p.m. 14 Even petitioners admit that the drivers can report early in the morning, to make their deliveries, or in the afternoon, depending on the production of animal feeds. 15 Drivers, like Lebatique, are under the control and supervision of management officers. Lebatique, therefore, is a regular employee whose tasks are usually necessary and desirable to the usual trade and business of the company. Thus, he is entitled to the benefits accorded to regular employees of Far East, including overtime pay and service incentive leave pay.

Note that all money claims arising from an employer-employee relationship shall be filed within three years from the time the cause of action accrued; otherwise, they shall be forever barred. 16 Further, if it is established that the benefits being claimed have been withheld from the employee for a period longer than three years, the amount pertaining to the period beyond the three-year prescriptive period is therefore barred by prescription. The amount that can only be demanded by the aggrieved employee shall be limited to the amount of the benefits withheld within three years before the filing of the complaint. 17

Lebatique timely filed his claim for service incentive leave pay, considering that in this situation, the prescriptive period commences at the time he was terminated. 18 On the other hand, his claim regarding nonpayment of overtime pay since he was hired in March 1996 is a different matter. In the case of overtime pay, he can only demand for the overtime pay withheld for the period within three years preceding the filing of the complaint on March 20, 2000. However, we find insufficient the selected time records presented by petitioners to compute properly his overtime pay. The Labor Arbiter should have required petitioners to present the daily time records, payroll, or other documents in management's control to determine the correct overtime pay due Lebatique.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated September 30, 2003 of the Court of Appeals in CA-G.R. SP No. 76196 and its Resolution dated March 15, 2004 are AFFIRMED with MODIFICATION to the effect that the case is hereby REMANDED to the Labor Arbiter for further proceedings to determine the exact amount of overtime pay and other monetary benefits due Jimmy Lebatique which herein petitioners should pay without further delay. EAaHTI

Costs against petitioners.

SO ORDERED.

ROWELL INDUSTRIAL CORPORATION, petitioner, vs. HON. COURT OF APPEALS and JOEL TARIPE, respondents.

D E C I S I O N

CHICO-NAZARIO, J p:

This case is a Petition for Review under Rule 45 of the 1997 Revised Rules of Civil Procedure seeking to set aside the Decision 1 and Resolution 2 of the Court of Appeals in CA-G.R. SP No. 74104, entitled, Rowell Industrial Corp., and/or Edwin Tang vs. National Labor Relations Commission and Joel Taripe, dated 30 September 2004 and 1 April 2005, respectively, which affirmed the Resolutions 3 of the National Labor Relations Commission (NLRC) dated 7 June 2002 and 20 August 2002, finding herein respondent Joel Taripe (Taripe) as a regular employee who had been illegally dismissed from employment by herein petitioner Rowell Industrial Corp. (RIC), thereby ordering petitioner RIC to reinstate respondent Taripe with full backwages, subject to the modification of exonerating Edwin Tang, the RIC General Manager and Vice President, from liability and computing the backwages of herein respondent Taripe based on the prevailing salary rate at the time of his dismissal. The NLRC Resolutions reversed the Decision 4 of the Labor Arbiter dated 29 September 2000, which dismissed respondent Taripe's complaint. aIAEcD

Petitioner RIC is a corporation engaged in manufacturing tin cans for use in packaging of consumer products, e.g., foods, paints, among other things. Respondent Taripe was employed by petitioner RIC on 8 November 1999 as a "rectangular power press machine operator" with a salary of P223.50 per day, until he was allegedly dismissed from his employment by the petitioner on 6 April 2000.

The controversy of the present case arose from the following facts, as summarized by the NLRC and the Court of Appeals:

On [17 February 2000], [herein respondent Taripe] filed a [C]omplaint against [herein petitioner RIC] for regularization and payment of holiday pay, as well as indemnity for severed finger, which was amended on [7 April 2000] to include illegal dismissal. [Respondent Taripe] alleges that [petitioner RIC] employed him starting [8 November 1999] as power press machine operator, such position of which was occupied by [petitioner RIC's] regular employees and the functions of which were necessary to the latter's business. [Respondent Taripe] adds that upon employment, he was made to sign a document, which was not explained to him but which was made a condition for him to be taken in and for which he was not furnished a copy. [Respondent Taripe] states that he was not extended full benefits granted under the law and the [Collective Bargaining Agreement] and that on [6 April 2000], while the case for regularization was pending, he was summarily dismissed from his job although he never violated any of the [petitioner RIC's] company rules and regulations.

[Petitioner RIC], for [its] part, claim[s] that [respondent Taripe] was a contractual employee, whose services were required due to the increase in the demand in packaging requirement of [its] clients for Christmas season and to build up stock levels during the early part of the following year; that on [6 March 2000], [respondent Taripe's] employment contract expired. [Petitioner RIC] avers that the information update for union members, which was allegedly filled up by [respondent Taripe] and submitted by the Union to [petitioner] company, it is stated therein that in the six (6) companies where [respondent Taripe] purportedly worked, the latter's reason for leaving was "finished contract," hence,

[respondent Taripe] has knowledge about being employed by contract contrary to his allegation that the document he was signing was not explained to him. [Petitioner RIC] manifest[s] that all benefits, including those under the [Social Security System], were given to him on [12 May 2000]. 5

On 29 September 2000, the Labor Arbiter rendered a Decision dismissing respondent Taripe's Complaint based on a finding that he was a contractual employee whose contract merely expired. The dispositive portion of the said Decision reads, thus:

WHEREFORE, premises considered, judgment is hereby rendered declaring this complaint of [herein respondent Taripe] against [herein petitioner RIC] and Mr. Edwin Tang for illegal dismissal DISMISSED for lack of merit. However, on ground of compassionate justice, [petitioner RIC and Mr. Edwin Tang] are hereby ordered to pay [respondent Taripe] the sum of PHP5,811.00 or one month's salary as financial assistance and holiday pay in the sum of PHP894.00, as well as attorney's fees of 10% based on holiday pay (Article 110, Labor Code). 6

Aggrieved, respondent Taripe appealed before the NLRC. In a Resolution dated 7 June 2002, the NLRC granted the appeal filed by respondent Taripe and declared that his employment with the petitioner was regular in status; hence, his dismissal was illegal. The decretal portion of the said Resolution reads as follows:

WHEREFORE, premises considered, [herein respondent Taripe's] appeal is GRANTED. The Labor Arbiter's [D]ecision in the above-entitled case is hereby REVERSED. It is hereby declared that [respondent Taripe's] employment with [herein petitioner RIC and Mr. Edwin Tang] is regular in status and that he was illegally dismissed therefrom. STHAID

[Petitioner RIC and Mr. Edwin Tang] are hereby ordered to reinstate [respondent Taripe] and to jointly and severally pay him full backwages from the time he was illegally dismissed up to the date of his actual reinstatement, less the amount of P1,427.67. The award of P894.00 for holiday pay is AFFIRMED but the award of P5,811.00 for financial assistance is deleted. The award for attorney's fees is hereby adjusted to ten percent (10%) of [respondent Taripe's] total monetary award. 7

Dissatisfied, petitioner RIC moved for the reconsideration of the aforesaid Resolution but it was denied in the Resolution of the NLRC dated 20 August 2002.

Consequently, petitioner filed a Petition for Certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure before the Court of Appeals with the following assignment of errors:

I. THE [NLRC] GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS JURISDICTION WHEN IT MISINTERPRETED ARTICLE 280 OF THE LABOR CODE AND IGNORED JURISPRUDENCE WHEN IT DECIDED THAT [RESPONDENT TARIPE] IS A REGULAR EMPLOYEE AND THUS, ILLEGALLY DISMISSED.

II. THE [NLRC] GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS JURISDICTION WHEN IT ORDERED [EDWIN TANG] TO (sic) JOINTLY AND SEVERALLY LIABLE FOR MONETARY CLAIMS OF [RESPONDENT TARIPE].

III. THE [NLRC] GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS JURISDICTION WHEN IT ORDERED PAYMENT OF MONETARY CLAIMS COMPUTED ON AN ERRONEOUS WAGE RATE. 8

The Court of Appeals rendered the assailed Decision on 30 September 2004, affirming the Resolution of the NLRC dated 7 June 2002, with modifications. Thus, it disposed —

WHEREFORE, the Resolutions dated [7 June 2002] and [20 August 2002] of [the NLRC] are affirmed, subject to the modification that [Edwin Tang] is exonerated from liability and the computation of backwages of [respondent Taripe] shall be based on P223.50, the last salary he received. 9

A Motion for Reconsideration of the aforesaid Decision was filed by petitioner RIC, but the same was denied for lack of merit in a Resolution 10 of the Court of Appeals dated 1 April 2005. acCTSE

Hence, this Petition.

Petitioner RIC comes before this Court with the lone issue of whether the Court of Appeals misinterpreted Article 280 of the Labor Code, as amended, and ignored jurisprudence when it affirmed that respondent Taripe was a regular employee and was illegally dismissed.

Petitioner RIC, in its Memorandum, 11 argues that the Court of Appeals had narrowly interpreted Article 280 of the Labor Code, as amended, and disregarded a contract voluntarily entered into by the parties.

Petitioner RIC emphasizes that while an employee's status of employment is vested by law pursuant to Article 280 of the Labor Code, as amended, said provision of law admits of two exceptions, to wit: (1) those employments which have 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 employment; and (2) when the work or services to be performed are seasonal; hence, the employment is for the duration of the season. Thus, there are certain forms of employment which entail the performance of usual and desirable functions and which exceed one year but do not necessarily qualify as regular employment under Article 280 of the Labor Code, as amended.

The Petition is unmeritorious.

A closer examination of Article 280 of the Labor Code, as amended, is imperative to resolve the issue raised in the present case.

In declaring that respondent Taripe was a regular employee of the petitioner and, thus, his dismissal was illegal, the Court of Appeals ratiocinated in this manner:

In determining the employment status of [herein respondent Taripe], reference must be made to Article 280 of the Labor Code, which provides:

xxx xxx xxx

Thus, there are two kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those

who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed. [Respondent Taripe] belonged to the first category of regular employees. DTESIA

The purported contract of employment providing that [respondent Taripe] was hired as contractual employee for five (5) months only, cannot prevail over the undisputed fact that [respondent Taripe] was hired to perform the function of power press operator, a function necessary or desirable in [petitioner's] business of manufacturing tin cans. [Herein petitioner RIC's] contention that the four (4) months length of service of [respondent Taripe] did not grant him a regular status is inconsequential, considering that length of service assumes importance only when the activity in which the employee has been engaged to perform is not necessary or desirable to the usual business or trade of the employer.

As aptly ruled by [the NLRC]:

"In the instant case, there is no doubt that [respondent Taripe], as power press operator, has been engaged to perform activities which are usually necessary or desirable in [petitioner RIC's] usual business or trade of manufacturing of tin cans for use in packaging of food, paint and others. We also find that [respondent Taripe] does not fall under any of the abovementioned exceptions. Other that (sic) [petitioner RIC's] bare allegation thereof, [it] failed to present any evidence to prove that he was employed for a fixed or specific project or undertaking the completion of which has been determined at the time of his engagement or that [respondent Taripe's] services are seasonal in nature and that his employment was for the duration of the season." 12

Article 280 of the Labor Code, as amended, 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. IDTSaC

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 a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. [Emphasis supplied]

The aforesaid Article 280 of the Labor Code, as amended, classifies employees into three categories, namely: (1) regular employees or those whose work is necessary or desirable to the usual business of the employer; (2) project employees or those whose 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; and (3) casual employees or those who are neither regular nor project employees. 13

Regular employees are further classified into: (1) regular employees by nature of work; and (2) regular employees by years of service. 14 The former refers to those employees who perform a particular activity which is necessary or desirable in the usual business or trade of the employer, regardless of their length of service; while the latter refers to those employees who have been performing the job, regardless of the nature thereof, for at least a year. 15

The aforesaid Article 280 of the Labor Code, as amended, however, does not proscribe or prohibit an employment contract with a fixed period. It does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is nothing essentially contradictory between a definite period of employment and the nature of the employee's duties. 16 What Article 280 of the Labor Code, as amended, seeks to prevent is the practice of some unscrupulous and covetous employers who wish to circumvent the law that protects lowly workers from capricious dismissal from their employment. The aforesaid provision, however, should not be interpreted in such a way as to deprive employers of the right and prerogative to choose their own workers if they have sufficient basis to refuse an employee a regular status. Management has rights which should also be protected. 17

In the case at bar, respondent Taripe signed a contract of employment prior to his admission into the petitioner's company. Said contract of employment provides, among other things:

4. That my employment shall be contractual for the period of five (5) months which means that the end of the said period, I can (sic) discharged unless this contract is renewed by mutual consent or terminated for cause. 18

Based on the said contract, respondent Taripe's employment with the petitioner is good only for a period of five months unless the said contract is renewed by mutual consent. And as claimed by petitioner RIC, respondent Taripe, along with its other contractual employees, was hired only to meet the increase in demand for packaging materials during the Christmas season and also to build up stock levels during the early part of the year. SaDICE

Although Article 280 of the Labor Code, as amended, does not forbid fixed term employment, it must, nevertheless, meet any of the following guidelines in order that it cannot be said to circumvent security of tenure: (1) that the fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or (2) it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. 19

In the present case, it cannot be denied that the employment contract signed by respondent Taripe did not mention that he was hired only for a specific undertaking, the completion of which had been

determined at the time of his engagement. The said employment contract neither mentioned that respondent Taripe's services were seasonal in nature and that his employment was only for the duration of the Christmas season as purposely claimed by petitioner RIC. What was stipulated in the said contract was that respondent Taripe's employment was contractual for the period of five months.

Likewise, as the NLRC mentioned in its Resolution, to which the Court of Appeals agreed, other than the bare allegations of petitioner RIC that respondent Taripe was hired only because of the increase in the demand for packaging materials during the Christmas season, petitioner RIC failed to substantiate such claim with any other evidence. Petitioner RIC did not present any evidence which might prove that respondent Taripe was employed for a fixed or specific project or that his services were seasonal in nature.

Also, petitioner RIC failed to controvert the claim of respondent Taripe that he was made to sign the contract of employment, prepared by petitioner RIC, as a condition for his hiring. Such contract in which the terms are prepared by only one party and the other party merely affixes his signature signifying his adhesion thereto is called contract of adhesion. 20 It is an agreement in which the parties bargaining are not on equal footing, the weaker party's participation being reduced to the alternative "to take it or leave it." 21 In the present case, respondent Taripe, in need of a job, was compelled to agree to the contract, including the five-month period of employment, just so he could be hired. Hence, it cannot be argued that respondent Taripe signed the employment contract with a fixed term of five months willingly and with full knowledge of the impact thereof. aDSTIC

With regard to the second guideline, this Court agrees with the Court of Appeals that petitioner RIC and respondent Taripe cannot be said to have dealt with each other on more or less equal terms with no moral dominance exercised by the former over the latter. As a power press operator, a rank and file employee, he can hardly be on equal terms with petitioner RIC. As the Court of Appeals said, "almost always, employees agree to any terms of an employment contract just to get employed considering that it is difficult to find work given their ordinary qualifications." 22

Therefore, for failure of petitioner RIC to comply with the necessary guidelines for a valid fixed term employment contract, it can be safely stated that the aforesaid contract signed by respondent Taripe for a period of five months was a mere subterfuge to deny to the latter a regular status of employment.

Settled is the rule that the primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the casual 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. 23

Given the foregoing, this Court agrees in the findings of the Court of Appeals and the NLRC that, indeed, respondent Taripe, as a rectangular power press machine operator, in charge of manufacturing covers for "four liters rectangular tin cans," was holding a position which is necessary and desirable in the usual business or trade of petitioner RIC, which was the manufacture of tin cans. Therefore, respondent Taripe was a regular employee of petitioner RIC by the nature of work he performed in the company.

Respondent Taripe does not fall under the exceptions mentioned in Article 280 of the Labor Code, as amended, because it was not proven by petitioner RIC that he was employed only for a specific project or undertaking or his employment was merely seasonal. Similarly, the position and function of power press operator cannot be said to be merely seasonal. Such position cannot be considered as only needed for a specific project or undertaking because of the very nature of the business of petitioner RIC. Indeed, respondent Taripe is a regular employee of petitioner RIC and as such, he cannot be dismissed from his employment unless there is just or authorized cause for his dismissal. CTAIHc

Well-established is the rule that regular employees enjoy security of tenure and they can only be dismissed for just cause and with due process, notice and hearing. 24 And in case of employees' dismissal, the burden is on the employer to prove that the dismissal was legal. Thus, respondent Taripe's summary dismissal, not being based on any of the just or authorized causes enumerated under Articles 282, 25 283, 26 and 284 27 of the Labor Code, as amended, is illegal.

Before concluding, we once more underscore the settled precept that factual findings of the NLRC, having deemed to acquire expertise in matters within its jurisdiction, are generally accorded not only respect but finality especially when such factual findings are affirmed by the Court of Appeals; 28 hence, such factual findings are binding on this Court.

WHEREFORE, premises considered, the instant Petition is hereby DENIED. The Decision and Resolution of the Court of Appeals dated 30 September 2004 and 1 April 2005, respectively, which affirmed with modification the Resolutions of the NLRC dated 7 June 2002 and 20 August 2002, respectively, finding herein respondent Taripe as a regular employee who had been illegally dismissed from employment by petitioner RIC, are hereby AFFIRMED. Costs against petitioner RIC.

PNOC-ENERGY DEV'T. CORP. vs. NLRC, ET AL.

THIRD DIVISION

[G.R. No. 169353. April 13, 2007.]

PNOC-ENERGY DEVELOPMENT CORPORATION, Southern Negros Geothermal Project, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, Fourth Division, Cebu City, and PNOC-EDC, SNGPEU-ASSOCIATED LABOR UNIONS-TUCP, LEONORA A. TORRES, ALEJANDRO B. TABAÑERA, JR., ARNEL T. AMOR, ROSELA S. CALIMPONG, WILSON D. NUAY, and ROBERTO S. RENZAL, respondents.

D E C I S I O N

CALLEJO, SR., J p:

Before the Court is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 77584 as well as its Resolution 2 dated August 11, 2005. HCIaDT

The antecedents are as follows:

Petitioner PNOC-Energy Development Corporation is a government-owned and controlled corporation engaged in the exploration, development, and utilization of energy. It undertakes several projects in areas where geothermal energy has been discovered. Each geothermal project undergoes the stages of exploration, development, and utilization or production. For each stage, several activities are undertaken such as drilling, construction, civil works, structural works, mechanical works, and electrical works until the project is finally completed. Aside from its projects in Negros Oriental, petitioner also had geothermal projects in Negros Occidental, Leyte, Albay, Sorsogon, and North Cotabato. aEACcS

Petitioner's Southern Negros Geothermal Production Field in Negros Oriental is divided into two phases: Palinpinon I (PAL I) and Palinpinon II (PAL II). To augment its manpower requirement occasioned by the increased activities in the development of PAL II, petitioner hired the following employees in the Administration and Maintenance Section: DAaHET

Name Date Hired Position Date Separated

1) Leonora Torres July 3, 1995 Clerk/Typist June 30, 1998

2) Rosela Calimpong July 1, 1997 Clerk/Typist June 30, 1998

3) Arnel Amor May 24, 1995 Helper Mechanic June 30, 1998

4) Wilson Nuay May 16, 1995 Service Driver June 30, 1998

5) Roberto Renzal January 25, 1995 Pipe Fitter June 30, 1998

6) Alejandro Tabañera February 27, 1996 Mechanic June 30, 1998

The termination/expiration of their respective employment were specified in their initial employment contracts, which, however, were renewed and extended on their respective expiry dates.

On May 29, 1998, petitioner submitted reports 3 to the Department of Labor and Employment (DOLE) Regional Sub-Branch No. VII in Dumaguete City, stating that six of its employees were being terminated. CSIDEc

Petitioner thereafter furnished the employees uniformly worded notices of termination, stating that they were being terminated from employment effective June 30, 1998 due to the substantial completion of the civil works phase of PAL II.

On October 29, 1998, the six employees, herein respondents, filed before the National Labor Relations Commission (NLRC) a complaint for illegal dismissal against petitioner. Aside from reinstatement, respondents sought the payment of backwages, salary differential, collective bargaining agreement benefits, damages and attorney's fees. cETDIA

In their Position Paper, respondents averred that they had rendered continuous and satisfactory services from the dates of their respective employment until illegally dismissed on June 30, 1998:

NAMES MONTHS and YEARS OF

SERVICE

1) Arnel Amor 3 years and 1 month

2) Rosela Calimpong 2 years and 11 months

3) Wilson Nuay 3 years and 1 month

4) Roberto Renzal 3 years and 5 months

5) Alejandro Tabañera 2 years and 4 months

6) Leonora Torres 2 years and 11 months

Respondents further contended that their dismissal from employment was a clear case of union busting for they had previously sought union membership and actually filed a notice of strike. aEIADT

For its part, petitioner asseverated that respondents were contractual employees; as such, they cannot claim to have been illegally dismissed because upon the expiration of the term of the contract or the completion of the project, their employer-employee relationship also ended. cDIHES

After evaluating the evidence presented, the Labor Arbiter rendered judgment dismissing the complaint for lack of legal and factual basis. 4 The Labor Arbiter ruled that respondents were not dismissed from work; the employer-employee relationship between the parties was severed upon the expiration of the respective contracts of respondents and the completion of the projects concerned. ASTIED

Not satisfied, respondents interposed an appeal to the NLRC which rendered judgment reversing the decision of the Labor Arbiter. The dispositive portion reads:

WHEREFORE, the decision of the Labor Arbiter dated May 31, 1999 is SET ASIDE and a new one is rendered ORDERING the respondent the following: SEHACI

(1) to immediately reinstate the following complainants to their respective positions without loss of seniority rights and other privileges:

a) LEONORA TORRES

b) ARNEL AMOR

c) WILSON NUAY

d) ROBERTO RENZAL, and

e) ALEJANDRO TABAÑERA;

(2) to pay each of the complainants his/her backwages from July 1, 1998 until actual reinstatement at the rate of P116.00 per day plus his/her 13th month pay and service incentive leave pay for the same period. acCDSH

(3) to pay attorney's fees equivalent to ten percent (10%) of the total award.

The claim of Rosela Calimpong is dismissed for lack of merit.

SO ORDERED. 5

The NLRC ratiocinated that respondents were regular non-project employees for having worked for more than one year in positions that required them to perform activities necessary and desirable in the normal business or trade of petitioner. The NLRC further ruled that the employment contracts of respondents were not for a specific project or for a fixed period. According to the NLRC, the dismissals made on June 30, 1998 under the pretext of project completion were illegal, being founded on an invalid, unjust, and unauthorized cause. DAaIEc

Respondents filed a motion for reconsideration, which the NLRC denied with modification in a Resolution 6 dated March 19, 2003. Only respondent Rosela Calimpong was granted relief. ICDSca

Aggrieved, petitioner filed a petition for certiorari before the CA seeking to have the NLRC decision reversed. It claimed that respondents were engaged for one definite phase of petitioner's geothermal project, the execution and implementation of the civil works portion of the Fluid Collection and Disposal System (FCDS) and Associated Work Projects. Petitioner averred that at the time of respondents' termination, the projects had already been substantially if not fully completed. cDCSTA

On August 31, 2004, the CA dismissed the petition. The fallo of the decision reads:

WHEREFORE, premises considered, the petition is hereby DENIED. The assailed May 23, 2001 Decision and March 19, 2003 Resolution of the National Labor Relations Commission, Fourth Division of Cebu City are AFFIRMED. aCcEHS

SO ORDERED. 7

The CA ruled that respondents were performing activities necessary and desirable in the normal operations of the business of petitioner. The appellate court explained that the repeated re-hiring and the continuing need for the services of the project employees over a span of time had made them regular employees. The motion for reconsideration filed by petitioner was denied by the CA in its Resolution 8 dated August 11, 2005. HDIaST

Petitioner sought relief from this Court via petition for review on certiorari.

The pivotal questions involved in this case for our resolution are: (a) whether respondents were project employees or regular employees; and (b) whether or not they were illegally dismissed from employment. cDaEAS

Petitioner argues that respondents are project employees because as gleaned from their standard contracts of employment, they were hired for a specific project or undertaking, the completion or termination of which had been determined at the time of their engagement. Their contracts clearly

indicated the completion or termination of the specific project or of the specific phase thereof at the time they were engaged.

For their part, respondents posit that they were undeniably performing activities which are necessary or desirable in the usual trade or business of petitioner. They aver that the completion of their individual employment was not determined at the time of their engagement due to the fact that their contracts were renewed and extended over and over again. They claim that had the periods of their employment been determined, then their work with petitioner would not have lasted beyond the three-month period provided in their respective initial employment contracts. They likewise theorized that the contracts they signed were short-term contracts covering a long period of the same activity, not for a specific project or undertaking. CAaSHI

The contentions of petitioner have no merit.

Customarily, the findings made by the NLRC are afforded great respect and are even clothed with finality and considered binding on this Court, except that when such findings are contrary to those of the Labor Arbiter, this Court may elect to re-examine the same, as we shall do in this case now.

Article 280 of the Labor Code of the Philippines states —

Article 280. REGULAR AND CASUAL EMPLOYEES. — 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. cDACST

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 a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. SEACTH

Thus, the applicable formula to ascertain whether an employment should be considered regular or non-regular is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. 9 As we held in Grandspan Development Corporation v. Bernardo: 10

The principal test for determining whether particular employees are properly characterized as "project employees," as distinguished from "regular employees," is whether or not the project employees were assigned to carry out a "specific project or undertaking," the duration and scope of which were specified at the time the employees were engaged for that project. 11 cSEaDA

As defined, project employees are those workers hired (1) for a specific project or undertaking, and (2) the completion or termination of such project or undertaking has been determined at the time of the

engagement of the employee. 12 However, petitioner failed to substantiate its claim that respondents were hired merely as project employees. A perusal of the records of the case reveals that the supposed specific project or undertaking of petitioner was not satisfactorily identified in the contracts of respondents. To illustrate, the following is a list of the names of respondents and the projects written in their employment contracts:

NAMES PROJECT NAME

Leonora A. Torres Additional Manpower cover additional workloads of PAL

II transferred to PAL I Operations, 13 PAL II Transfer to

PAL I Operations 14

Arnel T. Amor EDC-Drilling, 15 Maintenance of Drilling Materials, 16

Assist in Repair Maintenance of Vehicles/Equipments at

Equipment Maintenance Section 17

Wilson D. Nuay EDC Drilling Activities, 18 Rig #3 Operation on

OK-3RWOBL-2DWO, 19 Maintenance of Drilling Materials, 20

LG4D Drilling Operation, 21 SNGP FCDS Project, 22

Fabrication Personal Driver for CD Turned-Over Projects 23

Roberto S. Renzal PAL II FCDS Nasuji-NJA RI Line and Associated Works, 24

PAL II FCDS PN33/PN25 Branchline/Nasuji-NJA-Sogongon, 25

SNGP FCDS Project, 26 Cawayan Restoration Works, 27

SNGP FCDS Project PAL I/PAL II Refurbishments, 28

Support Workload increase in Fabrication/Equipment

Maintenance Section 29

Alejandro B. Tabañera, Jr. Temporary Increase in Workload of Maintenance and

Repair Activities of Light and Heavy Equipment, 30

Troubleshooting/Repair of All Equipments 31

Rosela S. Calimpong PAL II Transfer to PAL I Operations Clerical Workloads, 32

Additional Manpower to cover additional workloads of PAL

II transferred to PAL I Operations 33

Unmistakably, the alleged projects stated in the employment contracts were either too vague or imprecise to be considered as the "specific undertaking" contemplated by law. Petitioner's act of repeatedly and continuously hiring respondents to do the same kind of work belies its contention that respondents were hired for a specific project or undertaking. The absence of a definite duration for the project/s has led the Court to conclude that respondents are, in fact, regular employees. CHDAaS

Another cogent factor which militates against petitioner's insistence that the services of respondents were terminated because the projects for which they were hired had been completed is the fact that respondents' contracts of employment were extended a number of times for different or new projects. It must be stressed that a contract that misuses a purported fixed-term employment to block the acquisition of tenure by employees deserves to be struck down for being contrary to law, morals, good customs, public order and public policy. 34 HaTISE

In Filipinas Pre-Fabricated Building Systems (Filsystems), Inc. v. Puente, 35 the Court ruled that "the length of service of a project employee is not the controlling test of employment tenure but whether or not 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." 36 Indeed, while length of time may not be the controlling test for project employment, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, respondents had been project employees several times over. Their employment ceased to be coterminous with specific projects when they were repeatedly re-hired by petitioner. 37 Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and are considered regular employees. 38

As regular workers, respondents are entitled to security of tenure under Article 279 of the Labor Code and can only be dismissed for a just or authorized cause. Article 279 of the Labor Code provides:

Article. 279. SECURITY OF TENURE. — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. cAEaSC

In termination cases, it is incumbent upon the employer to prove by the quantum of evidence required by law that the dismissal of an employee is not illegal; otherwise the dismissal would be unjustified. 39 In the case at bar, petitioner failed to discharge the burden.

The notices of termination indicated that respondents' services were terminated due to the completion of the project. However, this allegation is contrary to the statement of petitioner in some of its pleadings that the project was merely "substantially completed." There is likewise no proof that the project, or the

phase of work to which respondents had been assigned, was already completed at the time of their dismissal. TEcAHI

Since respondents were illegally dismissed from work, they are entitled to reinstatement without loss of seniority rights, full backwages, inclusive of allowances and other benefits or their monetary equivalent computed from the time their compensation was withheld from them up to the time of their actual reinstatement, pursuant to Article 279 of the Labor Code. 40

WHEREFORE, in the light of the foregoing, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 77584 and the Resolution are AFFIRMED. No costs. STIHaE

SO ORDERED.

THIRD DIVISION

[G.R. No. 156146. June 21, 2007.]

OLONGAPO MAINTENANCE SERVICES, INC., petitioner, vs. EDGARDO B. CHANTENGCO, SALVACION S. ANIGAN, POLICARPIO S. ANIGAN, NOEL C. MENDOZA, DANIEL VALENTIN, MANUEL T. MARIANO, CARLOS PALABYAB, BETTY B. OLA, SALICIO R. MAGNO, MICHAEL SALAZAR, LOPE R. MAGNO, GERARDO G. AQUINO, EDWIN Q. DAYANDANTE, JOSE P. PRIEL, ROMEO O. CLETE, ERNESTO O. CLETE, SAMUEL P. MIRALPES, PATERNO R. BERZUELA, ANTONIO C. VALDEZ, RICARDO L. LOPEZ, MANUEL C. ABADIEZ, RUTH S. DOMENS, ALVIN P. MANGASIL, TIRSO T. TISADO, EDMUNDO C. SANTOS, FRANCISCO M. ZAMORA, EFREN E. ERGINA, DANIEL CASIMIRO, CHARLIE GALVEZ, EDGARDO REYES, CELSO M. DEL MUNDO, EUGENIA ILAGAN, RAFAEL CABAIS, DEODERICO GARCIA, VENANCIO MAGHANOY, ZOSIMO DIMACULANGAN, DULLAS PACOMIO, MARLON MAGDURULAN, GAUDIOSO BORREL, FORTUNATO ANZANO, WILFREDO HERNANDEZ, ROLANDO MUCHILLAS, NOMER MAGNO, NOEL MAGNO, JEREMIAH CONEL, REMIGIO PAREÑO, CRISANTO LIVINA, ROGELIO CASIL, VICENTE INOFINADA, RICKY BETONIO, ERNESTO MARASIGAN, ELSA MARTINEZ, ROBERTO MERCANO, ARNEL BAYRON, ALEXANDER REGANION, RODERICO NEYRA, WILFRED BATACAN, SALVADOR CRISOL, JR., EDISON GEMALAYA, ARNOLD CAMERGA, RAMON BELMONTE, ERNESTO IGNACIO, DOMINGO GUADEZ, ROMEO TAÑADA, FAUSTO GARCIA, JUANITO DUMAGAT, RODOLFO PIMENTE, ANDRES SAHURDA, CACAOJ RAMILITO, ARCON MOLINA, ALEX LIBROJO, respondents.

D E C I S I O N

NACHURA, J p:

This Petition for Review on Certiorari assails the July 29, 2002 Decision 1 of the Court of Appeals and its Resolution 2 dated November 14, 2002 in CA-G.R. SP No. 67474, which, respectively, denied the petition for certiorari and the motion for reconsideration filed by Olongapo Maintenance Services, Inc. (OMSI). cCSTHA

OMSI is a corporation engaged in the business of providing janitorial and maintenance services to various clients, including government-owned and controlled corporations. On various dates beginning

1986, OMSI hired the respondents as janitors, grass cutters, and degreasers, and assigned them at the Ninoy Aquino International Airport (NAIA). On January 14, 1999, OMSI terminated respondents' employment.

Claiming termination without just cause and non-payment of labor standard benefits, respondents filed a complaint for illegal dismissal, underpayment of wages, and non-payment of holiday and service incentive leave pays, with prayer for payment of separation pay, against OMSI.

For its part, OMSI denied the allegations in the complaint. It averred that when Manila International Airport Authority (MIAA) awarded to OMSI the service contracts for the airport, OMSI hired respondents as janitors, cleaners, and degreasers to do the services under the contracts. OMSI informed the respondents that they were hired for the MIAA project and their employments were coterminous with the contracts. As project employees, they were not dismissed from work but their employments ceased when the MIAA contracts were not renewed upon their expiration. The termination of respondents' employment cannot, thus, be considered illegal. EcHaAC

In a Decision 3 dated November 19, 1999, the Labor Arbiter dismissed the complaint, viz.:

WHEREFORE, premises considered, judgment is hereby rendered DISMISSING for lack of merit the claims for separation pay, wage differentials and holiday pay except that respondent is hereby ordered to pay the seventy one (71) complainants listed in pages three and four of the latter's position paper their service incentive leave pay.

SO ORDERED. 4

On appeal by the respondents, the NLRC modified the Labor Arbiter's ruling. It held that respondents were regular and not project employees. Hence, they are entitled to separation pay:

WHEREFORE, the decision appealed from is hereby modified by granting in addition to the grant of service incentive leave pay, payment of separation pay equivalent to half-month pay per [every] year of service or one month pay, whichever is higher.

SO ORDERED. 5

OMSI sought reconsideration of the ruling, but the NLRC denied the motion on July 30, 2001. TDESCa

Petitioner went up to the Court of Appeals via a petition for certiorari, imputing grave abuse of discretion to the NLRC for reversing the factual findings and the decision of the Labor Arbiter. However, the Court of Appeals dismissed the petition. The appellate court agreed with the NLRC that the continuous rehiring of respondents, who performed tasks necessary and desirable in the usual business of OMSI, was a clear indication that they were regular, not project employees. The court added that OMSI failed to establish that respondents' employment had been fixed for a specific project or undertaking, the completion or termination of which had been determined at the time of their engagement or hiring. Neither had it shown that respondents were informed of the duration and scope of their work when they were hired. Furthermore, OMSI did not submit to the Department of Labor and

Employment (DOLE) reports of termination of the respondents, thereby bolstering respondents' claim of regular employment. OMSI filed a motion for reconsideration, but the Court of Appeals denied it on November 14, 2002. IcHTCS

Aggrieved by the resolutions of the Court of Appeals, OMSI comes to this Court theorizing that:

THE COURT OF APPEALS COMMITTED GRAVE ERROR AND GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSTAINING THE NLRC'S RULING THAT RESPONDENTS ARE NOT PROJECT EMPLOYEES. CONCOMITANT THERETO, THERE IS NEITHER FACTUAL NOR LEGAL BASIS FOR THE AWARD OF SEPARATION PAY. 6

OMSI insists that respondents were project employees. Respondents, on the other hand, maintain that they were OMSI's regular employees.

Article 280 of the Labor Code 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 . . . (Italics supplied.) cSEAHa

Without question, respondents, as janitors, grass cutters, and degreasers, performed work "necessary or desirable" in the janitorial and maintenance service business of OMSI.

OMSI, however, argues that the respondents' performance of activities necessary and desirable to its business does not necessarily and conclusively mean that respondents were regular employees. OMSI asserts that respondents were project employees and their employment was coterminous with OMSI's service contracts with the MIAA. Thus, when the service contracts were terminated and the respondents were not re-assigned to another project, OMSI cannot be held liable for illegal dismissal.

The argument does not persuade.

The principal test in determining whether an employee is a project employee is whether he/she is assigned to carry out a "specific project or undertaking," the duration and scope of which are specified at the time the employee is engaged in the project, 7 or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. 8 A true project employee should be assigned to a project which begins and ends at determined or determinable times, and be informed thereof at the time of hiring. 9

In the instant case, the record is bereft of proof that the respondents' engagement as project employees has been predetermined, as required by law. We agree with the Court of Appeals that OMSI did not provide convincing evidence that respondents were informed that they were to be assigned to a

"specific project or undertaking" when OMSI hired them. Notably, the employment contracts for the specific project signed by the respondents were never presented. All that OMSI submitted in the proceedings a quo are the service contracts between OMSI and the MIAA. Clearly, OMSI utterly failed to establish by substantial evidence that, indeed, respondents were project employees and their employment was coterminous with the MIAA contract. HcDSaT

Evidently cognizant of such neglect, OMSI attempted to correct the situation by attaching copies of the application forms 10 of the respondents to its motion for reconsideration of the Court of Appeals' Decision. Such practice cannot be tolerated. This practice of submitting evidence late is properly rejected as it defeats the speedy administration of justice involving poor workers. It is also unfair. 11

OMSI's reliance on Mamansag v. National Labor Relations Commission, 12 Cartagenas v. Romago Electric Company, Inc., 13 and Sandoval Shipyards, Inc. v. National Labor Relations Commission 14 is misplaced. Said cases are not on all fours with the case at bench.

In Mamansag, Consumer Pulse Inc. duly presented the contract of employment showing that Mamansag was hired for a specific project and the completion or termination of said project was determined at the start of the employment. In Cartagenas, documentary exhibits were offered showing that the employee had been issued appointments from project to project and was issued a notice of temporary lay-off when the project was suspended due to lack of funds. Finally, in the case of Sandoval Shipyards, the termination of the project employees was duly reported to the then Ministry of Labor and Employment. These circumstances are not true in OMSI's case. As mentioned, no convincing evidence was offered to prove that respondents were informed that they were to be assigned to a "specific project or undertaking." Also, OMSI never reported respondents' termination to the then Department of Labor and Employment (DOLE). In Philippine Long Distance Telephone Co. v. Ylagan, 15 we held that the failure of the employee to file termination reports was an indication that an employee was not a project but a regular employee. DAETHc

In termination cases, the burden of proof rests on the employer to show that the dismissal is for a just cause. Thus, employers who hire project employees are mandated to state and, once its veracity is challenged, to prove the actual basis for the latter's dismissal. 16 Unfortunately for OMSI, it failed to discharge the burden. All that we have is OMSI's self-serving assertion that the respondents were hired as project employees.

Having been illegally dismissed, the NLRC cannot be considered to have acted whimsically in granting respondents separation pay in lieu of their reinstatement. Accordingly, the Court of Appeals committed no reversible error nor grave abuse of discretion in denying OMSI's petition for certiorari.

WHEREFORE, the petition for review is DENIED and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED.

SO ORDERED.

f dismissal up to the actual date of reinstatement which, as of this date, amounts to P93,155.36, as above computed.

SO ORDERED. 4

The Labor Arbiter ruled that by the very nature of respondents' business and the nature of petitioners' services, there is no doubt as to the employment status of petitioners. aADSIc

Respondents appealed to the National Labor Relations Commission (NLRC). In its 9 May 2001 Decision, 5 the NLRC set aside the Labor Arbiter's Decision and dismissed petitioners' complaint for illegal dismissal. The NLRC ruled that the mere fact that the employees' duties are necessary or desirable in the business or trade of the employer does not mean that they are forbidden from stipulating the period of employment. The NLRC held that petitioners' contracts of employment are valid and binding between the contracting parties and shall be considered as the law between them. The NLRC ruled that petitioners are bound by their employment contracts.

Petitioners filed a motion for reconsideration. The NLRC denied the motion in its 9 August 2001 Resolution. 6

Petitioners filed a petition for certiorari before the Court of Appeals.

The Ruling of the Court of Appeals

In its 27 June 2002 Decision, the Court of Appeals dismissed the petition and affirmed the NLRC's 9 May 2001 Decision and 9 August 2001 Resolution.

The Court of Appeals held that respondents' manpower requirement varies from month to month depending on the demand from their clients for their products. Respondents' manpower requirement determines the period of their employees' services. Respondents employed petitioners for the purpose of addressing a temporary manpower shortage.

Petitioners filed a motion for reconsideration. In its 30 September 2002 Resolution, the Court of Appeals denied the motion for reconsideration.

Hence, the petition before this Court. CHIEDS

The Issues

The petition raises these issues:

1. Whether petitioners are regular employees of respondents; and

2. Whether respondents are guilty of illegal dismissal.

The Ruling of this Court

The petition has no merit.

Petitioners are Not Regular Employees

Article 280 of the Labor Code 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 a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. DSITEH

Under Article 280 of the Labor Code, a regular employee is (1) one who is engaged to perform activities that are necessary or desirable in the usual trade or business of the employer, or (2) a casual employee who has rendered at least one year of service, whether continuous or broken, with respect to the activity in which he is employed. 7

However, even if an employee is engaged to perform activities that are necessary or desirable in the usual trade or business of the employer, it does not preclude the fixing of employment for a definite period.

In Brent School, Inc. v. Zamora, 8 this Court ruled that the contract, which was entered into before the effectivity of the Labor Code on 1 November 1974, was valid under Republic Act No. 1052 or the Termination Pay Law, as amended. Although the contract was entered into before the effectivity of the Labor Code, the Court traced how the present Article 280 of the Labor Code, which deleted employment with fixed or definite period, evolved. In sustaining the validity of fixed-term employment, the Court explained in Brent:

Accordingly, and since the entire purpose behind the development of legislation culminating in the present Article 280 of the Labor Code clearly appears to have been, as already observed, to prevent circumvention of the employee's right to be secure in his tenure, the clause in said article indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of regular employment as defined therein should be construed to refer to the substantive evil that the Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It should have no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. Unless thus limited in its

purview, the law would be made to apply to purposes other than those explicitly stated by its framers; it thus become pointless and arbitrary, unjust in its effects and apt to lead to absurd and unintended consequences. 9

The Court thus laid down the criteria under which fixed-term employment could not be said to be in circumvention of the law on security of tenure, thus:

1. The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or HEDSCc

2. It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter. 10

We agree with the Court of Appeals that in this case, the fixed period of employment was knowingly and voluntarily agreed upon by the parties. The Court of Appeals noted that there was no indication of force, duress, or improper pressure exerted on petitioners when they signed the contracts. Further, there was no proof that respondents were regularly engaged in hiring workers for work for a minimum period of five months to prevent the regularization of their employees.

Petitioners' Employment is akin to Probationary Employment

At most, petitioners' employment for less than six months can be considered probationary. Article 281 of the Labor Code provides:

Art. 281. Probationary Employment. — Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. acTDCI

Petitioners were hired on 11 May 1999, initially for three months. After the expiration of their contracts, petitioners were hired on a month-to-month basis. Their contracts of employment ended on 8 October 1999. Hence, they were employed for a total of five months. Their employment did not even exceed six months to entitle them to become regular employees.

We cannot accept petitioners' bare allegations that Caparoso was hired on 8 November 1998 while Quindipan was hired on intermittent basis since 1997. Petitioners failed to substantiate their allegations. The payslips submitted by petitioners to prove their prior employment with respondents are handwritten and indicate only the date and amount of pay. They do not even indicate the name of the employer. The printed payslips during the period of the contracts indicate not only the name of the employer but also the breakdown of petitioners' net pay.

Petitioners were not Illegally Dismissed from Employment

Petitioners' terms of employment are governed by their fixed-term contracts. Petitioners' fixed-term employment contracts had expired. They were not illegally dismissed from employment.

This Court has ruled that "if from the circumstances it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee, they should be disregarded for being contrary to public policy." 11 In this case, it was not established that respondents intended to deny petitioners their right to security of tenure. Besides, petitioners' employment did not exceed six months. Thus, the Court of Appeals did not err in sustaining petitioners' dismissal from employment.

WHEREFORE, we DENY the petition. We AFFIRM the 27 June 2002 Decision and 30 September 2002 Resolution in CA-G.R. SP No. 67156. aEcADH

SO ORDERED.

[G.R. No. 167622. November 7, 2008.]

GREGORIO V. TONGKO, petitioner, vs. THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC. and RENATO A. VERGEL DE DIOS, respondents.

D E C I S I O N

VELASCO, JR., J p:

The Case

This Petition for Review on Certiorari under Rule 45 seeks the reversal of the March 29, 2005 Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 88253, entitled The Manufacturers Life Insurance Co. (Phils.), Inc. v. National Labor Relations Commission and Gregorio V. Tongko. The assailed decision set aside the Decision dated September 27, 2004 and Resolution dated December 16, 2004 rendered by the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 040220-04. EIAaDC

The Facts

Manufacturers Life Insurance Co. (Phils.), Inc. (Manulife) is a domestic corporation engaged in life insurance business. Renato A. Vergel De Dios was, during the period material, its President and Chief Executive Officer. Gregorio V. Tongko started his professional relationship with Manulife on July 1, 1977 by virtue of a Career Agent's Agreement 2 (Agreement) he executed with Manulife.

In the Agreement, it is provided that:

It is understood and agreed that the Agent is an independent contractor and nothing contained herein shall be construed or interpreted as creating an employer-employee relationship between the Company and the Agent. CDcaSA

xxx xxx xxx

a) The Agent shall canvass for applications for Life Insurance, Annuities, Group policies and other products offered by the Company, and collect, in exchange for provisional receipts issued by the Agent, money due or to become due to the Company in respect of applications or policies obtained by or through the Agent or from policyholders allotted by the Company to the Agent for servicing, subject to subsequent confirmation of receipt of payment by the Company as evidenced by an Official Receipt issued by the Company directly to the policyholder.

xxx xxx xxx

The Company may terminate this Agreement for any breach or violation of any of the provisions hereof by the Agent by giving written notice to the Agent within fifteen (15) days from the time of the discovery of the breach. No waiver, extinguishment, abandonment, withdrawal or cancellation of the right to terminate this Agreement by the Company shall be construed for any previous failure to exercise its right under any provision of this Agreement. cACEHI

Either of the parties hereto may likewise terminate his Agreement at any time without cause, by giving to the other party fifteen (15) days notice in writing. . . .

In 1983, Tongko was named as a Unit Manager in Manulife's Sales Agency Organization. In 1990, he became a Branch Manager. As the CA found, Tongko's gross earnings from his work at Manulife, consisting of commissions, persistency income, and management overrides, may be summarized as follows:

January to December 10, 2002 - P865,096.07

2001 - 6,214,737.11

2000 - 8,003,180.38

1999 - 6,797,814.05

1998 - 4,805,166.34

1997 - 2,822,620.00 3

The problem started sometime in 2001, when Manulife instituted manpower development programs in the regional sales management level. Relative thereto, De Dios addressed a letter dated November 6, 2001 4 to Tongko regarding an October 18, 2001 Metro North Sales Managers Meeting. In the letter, De Dios stated: ScaHDT

The first step to transforming Manulife into a big league player has been very clear — to increase the number of agents to at least 1,000 strong for a start. This may seem diametrically opposed to the way Manulife was run when you first joined the organization. Since then, however, substantial changes have taken place in the organization, as these have been influenced by developments both from within and without the company.

xxx xxx xxx

The issues around agent recruiting are central to the intended objectives hence the need for a Senior Managers' meeting earlier last month when Kevin O'Connor, SVP-Agency, took to the floor to determine from our senior agency leaders what more could be done to bolster manpower development. At earlier meetings, Kevin had presented information where evidently, your Region was the lowest performer (on a per Manager basis) in terms of recruiting in 2000 and, as of today, continues to remain one of the laggards in this area. TIAEac

While discussions, in general, were positive other than for certain comments from your end which were perceived to be uncalled for, it became clear that a one-on-one meeting with you was necessary to ensure that you and management, were on the same plane. As gleaned from some of your previous comments in prior meetings (both in group and one-on-one), it was not clear that we were proceeding in the same direction.

Kevin held subsequent series of meetings with you as a result, one of which I joined briefly. In those subsequent meetings you reiterated certain views, the validity of which we challenged and subsequently found as having no basis.

With such views coming from you, I was a bit concerned that the rest of the Metro North Managers may be a bit confused as to the directions the company was taking. For this reason, I sought a meeting with everyone in your management team, including you, to clear the air, so to speak.

This note is intended to confirm the items that were discussed at the said Metro North Region's Sales Managers meeting held at the 7/F Conference room last 18 October. ESITcH

xxx xxx xxx

Issue # 2: "Some Managers are unhappy with their earnings and would want to revert to the position of agents."

This is an often repeated issue you have raised with me and with Kevin. For this reason, I placed the issue on the table before the rest of your Region's Sales Managers to verify its validity. As you must have noted, no Sales Manager came forward on their own to confirm your statement and it took you to name Malou Samson as a source of the same, an allegation that Malou herself denied at our meeting and in your very presence.

This only confirms, Greg, that those prior comments have no solid basis at all. I now believe what I had thought all along, that these allegations were simply meant to muddle the issues surrounding the inability of your Region to meet its agency development objectives!

Issue # 3: "Sales Managers are doing what the company asks them to do but, in the process, they earn less." SAcaDE

xxx xxx xxx

All the above notwithstanding, we had your own records checked and we found that you made a lot more money in the Year 2000 versus 1999. In addition, you also volunteered the information to Kevin when you said that you probably will make more money in the Year 2001 compared to Year 2000. Obviously, your above statement about making "less money" did not refer to you but the way you argued this point had us almost believing that you were spouting the gospel of truth when you were not. . . .

xxx xxx xxx

All of a sudden, Greg, I have become much more worried about your ability to lead this group towards the new direction that we have been discussing these past few weeks, i.e., Manulife's goal to become a major agency-led distribution company in the Philippines. While as you claim, you have not stopped anyone from recruiting, I have never heard you proactively push for greater agency recruiting. You have not been proactive all these years when it comes to agency growth. SaCIDT

xxx xxx xxx

I cannot afford to see a major region fail to deliver on its developmental goals next year and so, we are making the following changes in the interim:

1. You will hire at your expense a competent assistant who can unload you of much of the routine tasks which can be easily delegated. This assistant should be so chosen as to complement your skills and help you in the areas where you feel "may not be your cup of tea".

You have stated, if not implied, that your work as Regional Manager may be too taxing for you and for your health. The above could solve this problem.

xxx xxx xxx

2. Effective immediately, Kevin and the rest of the Agency Operations will deal with the North Star Branch (NSB) in autonomous fashion. . . .

I have decided to make this change so as to reduce your span of control and allow you to concentrate more fully on overseeing the remaining groups under Metro North, your Central Unit and the rest of the Sales Managers in Metro North. I will hold you solely responsible for meeting the objectives of these remaining groups. cHESAD

xxx xxx xxx

The above changes can end at this point and they need not go any further. This, however, is entirely dependent upon you. But you have to understand that meeting corporate objectives by everyone is primary and will not be compromised. We are meeting tough challenges next year and I would want everybody on board. Any resistance or holding back by anyone will be dealt with accordingly.

Subsequently, De Dios wrote Tongko another letter dated December 18, 2001, 5 terminating Tongko's services, thus:

It would appear, however, that despite the series of meetings and communications, both one-on-one meetings between yourself and SVP Kevin O'Connor, some of them with me, as well as group meetings with your Sales Managers, all these efforts have failed in helping you align your directions with Management's avowed agency growth policy. cIDHSC

xxx xxx xxx

On account thereof, Management is exercising its prerogative under Section 14 of your Agents Contract as we are now issuing this notice of termination of your Agency Agreement with us effective fifteen days from the date of this letter.

Therefrom, Tongko filed a Complaint dated November 25, 2002 with the NLRC against Manulife for illegal dismissal. The case, docketed as NLRC NCR Case No. 11-10330-02, was raffled to Labor Arbiter Marita V. Padolina.

In the Complaint, Tongko, in a bid to establish an employer-employee relationship, alleged that De Dios gave him specific directives on how to manage his area of responsibility in the latter's letter dated November 6, 2001. He further claimed that Manulife exercised control over him as follows:

Such control was certainly exercised by respondents over the herein complainant. It was Manulife who hired, promoted and gave various assignments to him. It was the company who set objectives as regards productions, recruitment, training programs and all activities pertaining to its business. Manulife prescribed a Code of Conduct which would govern in minute detail all aspects of the work to be undertaken by employees, including the sales process, the underwriting process, signatures, handling of money, policyholder service, confidentiality, legal and regulatory requirements and grounds for termination of employment. The letter of Mr. De Dios dated 06 November 2001 left no doubt as to who was in control. The subsequent termination letter dated 18 December 2001 again established in no uncertain terms the authority of the herein respondents to control the employees of Manulife. Plainly, the respondents wielded control not only as to the ends to be achieved but the ways and means of attaining such ends. 6 IDcAHT

Tongko bolstered his argument by citing Insular Life Assurance Co., Ltd. v. NLRC (4th Division) 7 and Great Pacific Life Assurance Corporation v. NLRC, 8 which Tongko claimed to be similar to the instant case.

Tongko further claimed that his dismissal was without basis and that he was not afforded due process. He also cited the Manulife Code of Conduct by which his actions were controlled by the company.

Manulife then filed a Position Paper with Motion to Dismiss dated February 27, 2003, 9 in which it alleged that Tongko is not its employee, and that it did not exercise "control" over him. Thus, Manulife claimed that the NLRC has no jurisdiction over the case. aIHSEc

In a Decision dated April 15, 2004, Labor Arbiter Marita V. Padolina dismissed the complaint for lack of an employer-employee relationship. Padolina found that applying the four-fold test in determining the

existence of an employer-employee relationship, none was found in the instant case. The dispositive portion thereof states:

WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the instant complaint for lack of jurisdiction, there being no employer-employee relationship between the parties.

SO ORDERED.

Tongko appealed the arbiter's Decision to the NLRC which reversed the same and rendered a Decision dated September 27, 2004 finding Tongko to have been illegally dismissed. TcADCI

The NLRC's First Division, while finding an employer-employee relationship between Manulife and Tongko applying the four-fold test, held Manulife liable for illegal dismissal. It further stated that Manulife exercised control over Tongko as evidenced by the letter dated November 6, 2001 of De Dios and wrote:

The above-mentioned letter shows the extent to which respondents controlled complainant's manner and means of doing his work and achieving the goals set by respondents. The letter shows how respondents concerned themselves with the manner complainant managed the Metro North Region as Regional Sales Manager, to the point that respondents even had a say on how complainant interacted with other individuals in the Metro North Region. The letter is in fact replete with comments and criticisms on how complainant carried out his functions as Regional Sales Manager.

More importantly, the letter contains an abundance of directives or orders that are intended to directly affect complainant's authority and manner of carrying out his functions as Regional Sales Manager. 10 . . .

Additionally, the First Division also ruled that:

Further evidence of [respondents'] control over complainant can be found in the records of the case. [These] are the different codes of conduct such as the Agent Code of Conduct, the Manulife Financial Code of Conduct, and the Manulife Financial Code of Conduct Agreement, which serve as the foundations of the power of control wielded by respondents over complainant that is further manifested in the different administrative and other tasks that he is required to perform. These codes of conduct corroborate and reinforce the display of respondents' power of control in their 06 November 2001 Letter to complainant. 11 caITAC

The fallo of the September 27, 2004 Decision reads:

WHEREFORE, premises considered, the appealed Decision is hereby reversed and set aside. We find complainant to be a regular employee of respondent Manulife and that he was illegally dismissed from employment by respondents.

In lieu of reinstatement, respondent Manulife is hereby ordered to pay complainant separation pay as above set forth. Respondent Manulife is further ordered to pay complainant backwages from the time he was dismissed on 02 January 2002 up to the finality of this decision also as indicated above.

xxx xxx xxx

All other claims are hereby dismissed for utter lack of merit.

From this Decision, Manulife filed a motion for reconsideration which was denied by the NLRC First Division in a Resolution dated December 16, 2004. 12 aATEDS

Thus, Manulife filed an appeal with the CA docketed as CA-G.R. SP No. 88253. Thereafter, the CA issued the assailed Decision dated March 29, 2005, finding the absence of an employer-employee relationship between the parties and deeming the NLRC with no jurisdiction over the case. The CA arrived at this conclusion while again applying the four-fold test. The CA found that Manulife did not exercise control over Tongko that would render the latter an employee of Manulife. The dispositive portion reads:

WHEREFORE, premises considered, the present petition is hereby GRANTED and the writ prayed for accordingly GRANTED. The assailed Decision dated September 27, 2004 and Resolution dated December 16, 2004 of the National Labor Relations Commission in NLRC NCR Case No. 00-11-10330-2002 (NLRC NCR CA No. 040220-04) are hereby ANNULLED and SET ASIDE. The Decision dated April 15, 2004 of Labor Arbiter Marita V. Padolina is hereby REINSTATED. IcAaEH

Hence, Tongko filed this petition and presented the following issues:

A

The Court of Appeals committed grave abuse of discretion in granting respondents' petition for certiorari.

B

The Court of Appeals committed grave abuse of discretion in annulling and setting aside the Decision dated September 27, 2004 and Resolution dated December 16, 2004 in finding that there is no employer-employee relationship between petitioner and respondent.

C

The Court of Appeals committed grave abuse of discretion in annulling and setting aside the Decision dated September 27, 2004 and Resolution dated December 16, 2004 which found petitioner to have been illegally dismissed and ordered his reinstatement with payment of backwages. 13 EATcHD

Restated, the issues are: (1) Was there an employer-employee relationship between Manulife and Tongko? and (2) If yes, was Manulife guilty of illegal dismissal?

The Court's Ruling

This petition is meritorious.

Tongko Was An Employee of Manulife

The basic issue of whether or not the NLRC has jurisdiction over the case resolves itself into the question of whether an employer-employee relationship existed between Manulife and Tongko. If no employer-employee relationship existed between the two parties, then jurisdiction over the case properly lies with the Regional Trial Court. AEDCHc

In the determination of whether an employer-employee relationship exists between two parties, this Court applies the four-fold test to determine the existence of the elements of such relationship. In Pacific Consultants International Asia, Inc. v. Schonfeld, the Court set out the elements of an employer-employee relationship, thus:

Jurisprudence is firmly settled that whenever the existence of an employment relationship is in dispute, four elements constitute the reliable yardstick: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer's power to control the employee's conduct. It is the so-called "control test" which constitutes the most important index of the existence of the employer-employee relationship that is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. Stated otherwise, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. 14 DSITEH

The NLRC, for its part, applied the four-fold test and found the existence of all the elements and declared Tongko an employee of Manulife. The CA, on the other hand, found that the element of control as an indicator of the existence of an employer-employee relationship was lacking in this case. The NLRC and the CA based their rulings on the same findings of fact but differed in their interpretations.

The NLRC arrived at its conclusion, first, on the basis of the letter dated November 6, 2001 addressed by De Dios to Tongko. According to the NLRC, the letter contained "an abundance of directives or orders that are intended to directly affect complainant's authority and manner of carrying out his functions as Regional Sales Manager." It enumerated these "directives" or "orders" as follows:

1. You will hire at your expense a competent assistant who can unload you of much of the routine tasks which can be easily delegated. . . . DaEcTC

xxx xxx xxx

This assistant should be hired immediately.

2. Effective immediately, Kevin and the rest of the Agency Operations will deal with the North Star Branch (NSB) in autonomous fashion . . . .

xxx xxx xxx

I have decided to make this change so as to reduce your span of control and allow you to concentrate more fully on overseeing the remaining groups under Metro North, your Central Unit and the rest of the Sales Managers in Metro North. . . .

3. Any resistance or holding back by anyone will be dealt with accordingly.

4. I have been straightforward in this my letter and I know that we can continue to work together. . . but it will have to be on my terms. Anything else is unacceptable! SaICcT

The NLRC further ruled that the different codes of conduct that were applicable to Tongko served as the foundations of the power of control wielded by Manulife over Tongko that is further manifested in the different administrative and other tasks that he was required to perform.

The NLRC also found that Tongko was required to render exclusive service to Manulife, further bolstering the existence of an employer-employee relationship.

Finally, the NLRC ruled that Tongko was integrated into a management structure over which Manulife exercised control, including the actions of its officers. The NLRC held that such integration added to the fact that Tongko did not have his own agency belied Manulife's claim that Tongko was an independent contractor.

The CA, however, considered the finding of the existence of an employer-employee relationship by the NLRC as far too sweeping having as its only basis the letter dated November 6, 2001 of De Dios. The CA did not concur with the NLRC's ruling that the elements of control as pointed out by the NLRC are "sufficient indicia of control that negates independent contractorship and conclusively establish an employer-employee relationship between" 15 Tongko and Manulife. The CA ruled that there is no employer-employee relationship between Tongko and Manulife. TaDCEc

An impasse appears to have been reached between the CA and the NLRC on the sole issue of control over an employee's conduct. It bears clarifying that such control not only applies to the work or goal to be done but also to the means and methods to accomplish it. 16 In Sonza v. ABS-CBN Broadcasting Corporation, we explained that not all forms of control would establish an employer-employee relationship, to wit:

Further, not every form of control that a party reserves to himself over the conduct of the other party in relation to the services being rendered may be accorded the effect of establishing an employer-employee relationship. The facts of this case fall squarely with the case of Insular Life Assurance Co., Ltd. vs. NLRC. In said case, we held that:

Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it. 17 (Emphasis supplied.) TcSaHC

We ruled in Insular Life Assurance Co., Ltd. v. NLRC (Insular) that:

It is, therefore, usual and expected for an insurance company to promulgate a set of rules to guide its commission agents in selling its policies that they may not run afoul of the law and what it requires or prohibits. Of such a character are the rules which prescribe the qualifications of persons who may be insured, subject insurance applications to processing and approval by the Company, and also reserve to the Company the determination of the premiums to be paid and the schedules of payment. None of these really invades the agent's contractual prerogative to adopt his own selling methods or to sell insurance at his own time and convenience, hence cannot justifiably be said to establish an employer-employee relationship between him and the company. 18 caEIDA

Hence, we ruled in Insular that no employer-employee relationship existed therein. However, such ruling was tempered with the qualification that had there been evidence that the company promulgated rules or regulations that effectively controlled or restricted an insurance agent's choice of methods or the methods themselves in selling insurance, an employer-employee relationship would have existed. In other words, the Court in Insular in no way definitively held that insurance agents are not employees of insurance companies, but rather made the same a case-to-case basis. We held:

The respondents limit themselves to pointing out that Basiao's contract with the Company bound him to observe and conform to such rules and regulations as the latter might from time to time prescribe. No showing has been made that any such rules or regulations were in fact promulgated, much less that any rules existed or were issued which effectively controlled or restricted his choice of methods or the methods themselves of selling insurance. Absent such showing, the Court will not speculate that any exceptions or qualifications were imposed on the express provision of the contract leaving Basiao ". . . free to exercise his own judgment as to the time, place and means of soliciting insurance." 19 (Emphasis supplied.) HECTaA

There is no conflict between our rulings in Insular and in Great Pacific Life Assurance Corporation. We said in the latter case:

[I]t cannot be gainsaid that Grepalife had control over private respondents' performance as well as the result of their efforts. A cursory reading of their respective functions as enumerated in their contracts reveals that the company practically dictates the manner by which their jobs are to be carried out. For instance, the District Manager must properly account, record and document the company's funds spot-check and audit the work of the zone supervisors, conserve the company's business in the district through 'reinstatements', follow up the submission of weekly remittance reports of the debit agents and zone supervisors, preserve company property in good condition, train understudies for the position of district manager, and maintain his quota of sales (the failure of which is a ground for termination). On the other hand, a zone supervisor must direct and supervise the sales activities of the debit agents under him, conserve company property through "reinstatements", undertake and discharge the functions of absentee debit agents, spot-check the records of debit agents, and insure proper documentation of sales and collections by the debit agents. 20 (Emphasis supplied.) IcHTED

Based on the foregoing cases, if the specific rules and regulations that are enforced against insurance agents or managers are such that would directly affect the means and methods by which such agents or managers would achieve the objectives set by the insurance company, they are employees of the insurance company.

In the instant case, Manulife had the power of control over Tongko that would make him its employee. Several factors contribute to this conclusion.

In the Agreement dated July 1, 1977 executed between Tongko and Manulife, it is provided that:

The Agent hereby agrees to comply with all regulations and requirements of the Company as herein provided as well as maintain a standard of knowledge and competency in the sale of the Company's products which satisfies those set by the Company and sufficiently meets the volume of new business required of Production Club membership. 21

Under this provision, an agent of Manulife must comply with three (3) requirements: (1) compliance with the regulations and requirements of the company; (2) maintenance of a level of knowledge of the company's products that is satisfactory to the company; and (3) compliance with a quota of new businesses. cETDIA

Among the company regulations of Manulife are the different codes of conduct such as the Agent Code of Conduct, Manulife Financial Code of Conduct, and Manulife Financial Code of Conduct Agreement, which demonstrate the power of control exercised by the company over Tongko. The fact that Tongko was obliged to obey and comply with the codes of conduct was not disowned by respondents.

Thus, with the company regulations and requirements alone, the fact that Tongko was an employee of Manulife may already be established. Certainly, these requirements controlled the means and methods by which Tongko was to achieve the company's goals.

More importantly, Manulife's evidence establishes the fact that Tongko was tasked to perform administrative duties that establishes his employment with Manulife. DICcTa

In its Comment (Re: Petition for Review dated 15 April 2005) dated August 5, 2005, Manulife attached affidavits of its agents purportedly to support its claim that Tongko, as a Regional Sales Manager, did not perform any administrative functions. An examination of these affidavits would, however, prove the opposite.

In an Affidavit dated April 28, 2003, 22 John D. Chua, a Regional Sales Manager of Manulife, stated:

4. On September 1, 1996, my services were engaged by Manulife as an Agency Regional Sales Manager ("RSM") for Metro South Region pursuant to an Agency Contract. As such RSM, I have the following functions:

1. Refer and recommend prospective agents to Manulife

2. Coach agents to become productive

3. Regularly meet with, and coordinate activities of agents affiliated to my region. IcDCaT

While Amada Toledo, a Branch Manager of Manulife, stated in her Affidavit dated April 29, 2003 23 that:

3. In January 1997, I was assigned as a Branch Manager ("BM") of Manulife for the Metro North Sector;

4. As such BM, I render the following services:

a. Refer and recommend prospective agents to Manulife;

b. Train and coordinate activities of other commission agents;

c. Coordinate activities of Agency Managers who, in turn, train and coordinate activities of other commission agents;

d. Achieve agreed production objectives in terms of Net Annualized Commissions and Case Count and recruitment goals; and EcATDH

e. Sell the various products of Manulife to my personal clients.

While Ma. Lourdes Samson, a Unit Manager of Manulife, stated in her Affidavit dated April 28, 2003 24 that:

3. In 1977, I was assigned as a Unit Manager ("UM") of North Peaks Unit, North Star Branch, Metro North Region;

4. As such UM, I render the following services:

a. To render or recommend prospective agents to be licensed, trained and contracted to sell Manulife products and who will be part of my Unit;

b. To coordinate activities of the agents under my Unit in their daily, weekly and monthly selling activities, making sure that their respective sales targets are met;

c. To conduct periodic training sessions for my agents to further enhance their sales skills. aDTSHc

d. To assist my agents with their sales activities by way of joint fieldwork, consultations and one-on-one evaluation and analysis of particular accounts.

e. To provide opportunities to motivate my agents to succeed like conducting promos to increase sales activities and encouraging them to be involved in company and industry activities.

f. To provide opportunities for professional growth to my agents by encouraging them to be a member of the LUCAP (Life Underwriters Association of the Philippines).

A comparison of the above functions and those contained in the Agreement with those cited in Great Pacific Life Assurance Corporation 25 reveals a striking similarity that would more than support a similar finding as in that case. Thus, there was an employer-employee relationship between the parties. TADIHE

Additionally, it must be pointed out that the fact that Tongko was tasked with recruiting a certain number of agents, in addition to his other administrative functions, leads to no other conclusion that he was an employee of Manulife.

In his letter dated November 6, 2001, De Dios harped on the direction of Manulife of becoming a major agency-led distribution company whereby greater agency recruitment is required of the managers, including Tongko. De Dios made it clear that agent recruitment has become the primary means by which Manulife intends to sell more policies. More importantly, it is Tongko's alleged failure to follow this principle of recruitment that led to the termination of his employment with Manulife. With this, it is inescapable that Tongko was an employee of Manulife.

Tongko Was Illegally Dismissed

In its Petition for Certiorari dated January 7, 2005 26 filed before the CA, Manulife argued that even if Tongko is considered as its employee, his employment was validly terminated on the ground of gross and habitual neglect of duties, inefficiency, as well as willful disobedience of the lawful orders of Manulife. Manulife stated: DHETIS

In the instant case, private respondent, despite the written reminder from Mr. De Dios refused to shape up and altogether disregarded the latter's advice resulting in his laggard performance clearly indicative of his willful disobedience of the lawful orders of his superior. . . .

xxx xxx xxx

As private respondent has patently failed to perform a very fundamental duty, and that is to yield obedience to all reasonable rules, orders and instructions of the Company, as well as gross failure to reach at least minimum quota, the termination of his engagement from Manulife is highly warranted and therefore, there is no illegal dismissal to speak of.

It is readily evident from the above-quoted portions of Manulife's petition that it failed to cite a single iota of evidence to support its claims. Manulife did not even point out which order or rule that Tongko disobeyed. More importantly, Manulife did not point out the specific acts that Tongko was guilty of that would constitute gross and habitual neglect of duty or disobedience. Manulife merely cited Tongko's alleged "laggard performance", without substantiating such claim, and equated the same to disobedience and neglect of duty. DHTCaI

We cannot, therefore, accept Manulife's position.

In Quebec, Sr. v. National Labor Relations Commission, we ruled that:

When there is no showing of a clear, valid and legal cause for the termination of employment, the law considers the matter a case of illegal dismissal and the burden is on the employer to prove that the termination was for a valid or authorized cause. This burden of proof appropriately lies on the shoulders of the employer and not on the employee because a worker's job has some of the characteristics of property rights and is therefore within the constitutional mantle of protection. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

Apropos thereto, Art. 277, par. (b), of the Labor Code mandates in explicit terms that the burden of proving the validity of the termination of employment rests on the employer. Failure to discharge this evidential burden would necessarily mean that the dismissal was not justified, and, therefore, illegal. 27 IcTEaC

We again ruled in Times Transportation Co., Inc. v. National Labor Relations Commission that:

The law mandates that the burden of proving the validity of the termination of employment rests with the employer. Failure to discharge this evidentiary burden would necessarily mean that the dismissal was not justified, and, therefore, illegal. Unsubstantiated suspicions, accusations and conclusions of employers do not provide for legal justification for dismissing employees. In case of doubt, such cases should be resolved in favor of labor, pursuant to the social justice policy of our labor laws and Constitution. 28

This burden of proof was clarified in Community Rural Bank of San Isidro (N.E.), Inc. v. Paez to mean substantial evidence, to wit:

The Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. The settled rule in administrative and quasi-judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employer's dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. 29 CDHaET

Here, Manulife failed to overcome such burden of proof. It must be reiterated that Manulife even failed to identify the specific acts by which Tongko's employment was terminated much less support the same with substantial evidence. To repeat, mere conjectures cannot work to deprive employees of their means of livelihood. Thus, it must be concluded that Tongko was illegally dismissed.

Moreover, as to Manulife's failure to comply with the twin notice rule, it reasons that Tongko not being its employee is not entitled to such notices. Since we have ruled that Tongko is its employee, however, Manulife clearly failed to afford Tongko said notices. Thus, on this ground too, Manulife is guilty of illegal dismissal. In Quebec, Sr., we also stated:

Furthermore, not only does our legal system dictate that the reasons for dismissing a worker must be pertinently substantiated, it also mandates that the manner of dismissal must be properly done, otherwise, the termination itself is gravely defective and may be declared unlawful. 30 ITECSH

For breach of the due process requirements, Manulife is liable to Tongko in the amount of PhP30,000 as indemnity in the form of nominal damages. 31

Finally, Manulife raises the issue of the correctness of the computation of the award to Tongko made by the NLRC by claiming that Songco v. National Labor Relations Commission 32 is inapplicable to the instant case, considering that Songco was dismissed on the ground of retrenchment.

An examination of Songco reveals that it may be applied to the present case. In that case, Jose Songco was a salesman of F.E. Zuellig (M), Inc. which terminated the services of Songco on the ground of retrenchment due to financial losses. The issue raised to the Court, however, was whether commissions are considered as part of wages in order to determine separation pay. Thus, the fact that Songco was dismissed due to retrenchment does not hamper the application thereof to the instant case. What is pivotal is that we ruled in Songco that commissions are part of wages for the determination of separation pay. TCaADS

Article 279 of the Labor Code on security of tenure pertinently provides that:

In cases of regular employment the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

In Triad Security & Allied Services, Inc. v. Ortega, Jr. (Triad), we thus stated that an illegally dismissed employee shall be entitled to backwages and separation pay, if reinstatement is no longer viable: AHaETS

As the law now stands, an illegally dismissed employee is entitled to two reliefs, namely: backwages and reinstatement. These are separate and distinct from each other. However, separation pay is granted where reinstatement is no longer feasible because of strained relations between the employee and the employer. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable and backwages. 33

Taking into consideration the cases of Songco and Triad, we find correct the computation of the NLRC that the monthly gross wage of Tongko in 2001 was PhP518,144.76. For having been illegally dismissed, Tongko is entitled to reinstatement with full backwages under Art. 279 of the Labor Code. Due to the strained relationship between Manulife and Tongko, reinstatement, however, is no longer advisable. Thus, Tongko will be entitled to backwages from January 2, 2002 (date of dismissal) up to the finality of this decision. Moreover, Manulife will pay Tongko separation pay of one (1) month salary for every year of service that is from 1977 to 2001 amounting to PhP12,435,474.24, considering that reinstatement is

not feasible. Tongko shall also be entitled to an award of attorney's fees in the amount of ten percent (10%) of the aggregate amount of the above awards. EAaHTI

WHEREFORE, the petition is hereby GRANTED. The assailed March 29, 2005 Decision of the CA in CA-G.R. SP No. 88253 is REVERSED and SET ASIDE. The Decision dated September 27, 2004 of the NLRC is REINSTATED with the following modifications:

Manulife shall pay Tongko the following:

(1) Full backwages, inclusive of allowances and other benefits or their monetary equivalent from January 2, 2002 up to the finality of this Decision;

(2) Separation pay of one (1) month salary for every year of service from 1977 up to 2001 amounting to PhP12,435,474.24;

(3) Nominal damages of PhP30,000 as indemnity for violation of the due process requirements; and

(4) Attorney's fees equivalent to ten percent (10%) of the aforementioned backwages and separation pay. HSIDTE

Costs against respondent Manulife.

SO ORDERED.

G.R. No. 155207 August 13, 2008

WILHELMINA S. OROZCO vs. COURT OF APPEALS, ET AL.

THIRD DIVISION

[G.R. No. 155207. August 13, 2008.]

WILHELMINA S. OROZCO, petitioner, vs. THE FIFTH DIVISION OF THE HONORABLE COURT OF APPEALS, PHILIPPINE DAILY INQUIRER, and LETICIA JIMENEZ MAGSANOC, respondents.

D E C I S I O N

NACHURA, J p:

The case before this Court raises a novel question never before decided in our jurisdiction — whether a newspaper columnist is an employee of the newspaper which publishes the column. AHCaES

In this Petition for Review under Rule 45 of the Revised Rules on Civil Procedure, petitioner Wilhelmina S. Orozco assails the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 50970 dated June 11, 2002 and its Resolution 2 dated September 11, 2002 denying her Motion for Reconsideration. The CA reversed and set aside the Decision 3 of the National Labor Relations Commission (NLRC), which in turn had affirmed the Decision 4 of the Labor Arbiter finding that Orozco was an employee of private respondent Philippine Daily Inquirer (PDI) and was illegally dismissed as columnist of said newspaper.

In March 1990, PDI engaged the services of petitioner to write a weekly column for its Lifestyle section. She religiously submitted her articles every week, except for a six-month stint in New York City when she, nonetheless, sent several articles through mail. She received compensation of P250.00 — later increased to P300.00 — for every column published. 5

On November 7, 1992, petitioner's column appeared in the PDI for the last time. Petitioner claims that her then editor, Ms. Lita T. Logarta, 6 told her that respondent Leticia Jimenez Magsanoc, PDI Editor in Chief, wanted to stop publishing her column for no reason at all and advised petitioner to talk to Magsanoc herself. Petitioner narrates that when she talked to Magsanoc, the latter informed her that it was PDI Chairperson Eugenia Apostol who had asked to stop publication of her column, but that in a telephone conversation with Apostol, the latter said that Magsanoc informed her (Apostol) that the Lifestyle section already had many columnists. 7 SCaTAc

On the other hand, PDI claims that in June 1991, Magsanoc met with the Lifestyle section editor to discuss how to improve said section. They agreed to cut down the number of columnists by keeping only those whose columns were well-written, with regular feedback and following. In their judgment, petitioner's column failed to improve, continued to be superficially and poorly written, and failed to meet the high standards of the newspaper. Hence, they decided to terminate petitioner's column. 8

Aggrieved by the newspaper's action, petitioner filed a complaint for illegal dismissal, backwages, moral and exemplary damages, and other money claims before the NLRC.

On October 29, 1993, Labor Arbiter Arthur Amansec rendered a Decision in favor of petitioner, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered, finding complainant to be an employee of respondent company; ordering respondent company to reinstate her to her former or equivalent position, with backwages. ADHaTC

Respondent company is also ordered to pay her 13th month pay and service incentive leave pay.

Other claims are hereby dismissed for lack of merit.

SO ORDERED. 9

The Labor Arbiter found that:

[R]espondent company exercised full and complete control over the means and method by which complainant's work — that of a regular columnist — had to be accomplished. This control might not be found in an instruction, verbal or oral, given to complainant defining the means and method she should write her column. Rather, this control is manifested and certained (sic) in respondents' admitted prerogative to reject any article submitted by complainant for publication. aIcHSC

By virtue of this power, complainant was helplessly constrained to adopt her subjects and style of writing to suit the editorial taste of her editor. Otherwise, off to the trash can went her articles.

Moreover, this control is already manifested in column title, "Feminist Reflection" allotted complainant. Under this title, complainant's writing was controlled and limited to a woman's perspective on matters of feminine interests. That respondent had no control over the subject matter written by complainant is strongly belied by this observation. Even the length of complainant's articles were set by respondents.

Inevitably, respondents would have no control over when or where complainant wrote her articles as she was a columnist who could produce an article in thirty (3) (sic) months or three (3) days, depending on her mood or the amount of research required for an article but her actions were controlled by her obligation to produce an article a week. If complainant did not have to report for work eight (8) hours a day, six (6) days a week, it is because her task was mainly mental. Lastly, the fact that her articles were (sic) published weekly for three (3) years show that she was respondents' regular employee, not a once-in-a-blue-moon contributor who was not under any pressure or obligation to produce regular articles and who wrote at his own whim and leisure. 10 ICaDHT

PDI appealed the Decision to the NLRC. In a Decision dated August 23, 1994, the NLRC Second Division dismissed the appeal thereby affirming the Labor Arbiter's Decision. The NLRC initially noted that PDI failed to perfect its appeal, under Article 223 of the Labor Code, due to non-filing of a cash or surety bond. The NLRC said that the reason proffered by PDI for not filing the bond — that it was difficult or impossible to determine the amount of the bond since the Labor Arbiter did not specify the amount of the judgment award — was not persuasive. It said that all PDI had to do was compute based on the amount it was paying petitioner, counting the number of weeks from November 7, 1992 up to promulgation of the Labor Arbiter's decision. 11

The NLRC also resolved the appeal on its merits. It found no error in the Labor Arbiter's findings of fact and law. It sustained the Labor Arbiter's reasoning that respondent PDI exercised control over petitioner's work.

PDI then filed a Petition for Review 12 before this Court seeking the reversal of the NLRC Decision. However, in a Resolution 13 dated December 2, 1998, this Court referred the case to the Court of Appeals, pursuant to our ruling in St. Martin Funeral Homes v. National Labor Relations Commission. 14

The CA rendered its assailed Decision on June 11, 2002. It set aside the NLRC Decision and dismissed petitioner's Complaint. It held that the NLRC misappreciated the facts and rendered a ruling wanting in substantial evidence. The CA said:

The Court does not agree with public respondent NLRC's conclusion. First, private respondent admitted that she was and [had] never been considered by petitioner PDI as its employee. Second, it is not disputed that private respondent had no employment contract with petitioner PDI. In fact, her engagement to contribute articles for publication was based on a verbal agreement between her and the petitioner's Lifestyle Section Editor. Moreover, it was evident that private respondent was not required to report to the office eight (8) hours a day. Further, it is not disputed that she stayed in New York for six (6) months without petitioner's permission as to her leave of absence nor was she given any disciplinary action for the same. These undisputed facts negate private respondent's claim that she is an employee of petitioner. cIaHDA

Moreover, with regards (sic) to the control test, the public respondent NLRC's ruling that the guidelines given by petitioner PDI for private respondent to follow, e.g., in terms of space allocation and length of article, is not the form of control envisioned by the guidelines set by the Supreme Court. The length of the article is obviously limited so that all the articles to be featured in the paper can be accommodated. As to the topic of the article to be published, it is but logical that private respondent should not write morbid topics such as death because she is contributing to the lifestyle section. Other than said given limitations, if the same could be considered limitations, the topics of the articles submitted by private respondent were all her choices. Thus, the petitioner PDI in deciding to publish private respondent's articles only controls the result of the work and not the means by which said articles were written.

As such, the above facts failed to measure up to the control test necessary for an employer-employee relationship to exist. 15

Petitioner's Motion for Reconsideration was denied in a Resolution dated September 11, 2002. She then filed the present Petition for Review.

In a Resolution dated April 29, 2005, the Court, without giving due course to the petition, ordered the Labor Arbiter to clarify the amount of the award due petitioner and, thereafter, ordered PDI to post the requisite bond. Upon compliance therewith, the petition would be given due course. Labor Arbiter Amansec clarified that the award under the Decision amounted to P15,350.00. Thus, PDI posted the requisite bond on January 25, 2007. 16 ACaTIc

We shall initially dispose of the procedural issue raised in the Petition.

Petitioner argues that the CA erred in not dismissing outright PDI's Petition for Certiorari for PDI's failure to post a cash or surety bond in violation of Article 223 of the Labor Code.

This issue was settled by this Court in its Resolution dated April 29, 2005. 17 There, the Court held:

But while the posting of a cash or surety bond is jurisdictional and is a condition sine qua non to the perfection of an appeal, there is a plethora of jurisprudence recognizing exceptional instances wherein the Court relaxed the bond requirement as a condition for posting the appeal. ASIETa

xxx xxx xxx

In the case of Taberrah v. NLRC, the Court made note of the fact that the assailed decision of the Labor Arbiter concerned did not contain a computation of the monetary award due the employees, a circumstance which is likewise present in this case. In said case, the Court stated,

As a rule, compliance with the requirements for the perfection of an appeal within the reglamentary (sic) period is mandatory and jurisdictional. However, in National Federation of Labor Unions v. Ladrido as well as in several other cases, this Court relaxed the requirement of the posting of an appeal bond within the reglementary period as a condition for perfecting the appeal. This is in line with the principle that substantial justice is better served by allowing the appeal to be resolved on the merits rather than dismissing it based on a technicality. IEaATD

The judgment of the Labor Arbiter in this case merely stated that petitioner was entitled to backwages, 13th month pay and service incentive leave pay without however including a computation of the alleged amounts.

xxx xxx xxx

In the case of NFLU v. Ladrido III, this Court postulated that "private respondents cannot be expected to post such appeal bond equivalent to the amount of the monetary award when the amount thereof was not included in the decision of the labor arbiter". The computation of the amount awarded to petitioner not having been clearly stated in the decision of the labor arbiter, private respondents had no basis for determining the amount of the bond to be posted.

Thus, while the requirements for perfecting an appeal must be strictly followed as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business, the law does admit of exceptions when warranted by the circumstances. Technicality should not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. But while this Court may relax the observance of reglementary periods and technical rules to achieve substantial justice, it is not prepared to give due course to this petition and make a pronouncement on the weighty issue obtaining in this case until the law has been duly complied with and the requisite appeal bond duly paid by private respondents. 18 aSIHcT

Records show that PDI has complied with the Court's directive for the posting of the bond; 19 thus, that issue has been laid to rest.

We now proceed to rule on the merits of this case.

The main issue we must resolve is whether petitioner is an employee of PDI, and if the answer be in the affirmative, whether she was illegally dismissed.

We rule for the respondents.

The existence of an employer-employee relationship is essentially a question of fact. 20 Factual findings of quasi-judicial agencies like the NLRC are generally accorded respect and finality if supported by substantial evidence. 21

Considering, however, that the CA's findings are in direct conflict with those of the Labor Arbiter and NLRC, this Court must now make its own examination and evaluation of the facts of this case. cCEAHT

It is true that petitioner herself admitted that she "was not, and [had] never been considered respondent's employee because the terms of works were arbitrarily decided upon by the respondent". 22 However, the employment status of a person is defined and prescribed by law and not by what the parties say it should be. 23

This Court has constantly adhered to the "four-fold test" to determine whether there exists an employer-employee relationship between parties. 24 The four elements of an employment relationship

are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer's power to control the employee's conduct. 25

Of these four elements, it is the power of control which is the most crucial 26 and most determinative factor, 27 so important, in fact, that the other elements may even be disregarded. 28 As this Court has previously held:

the significant factor in determining the relationship of the parties is the presence or absence of supervisory authority to control the method and the details of performance of the service being rendered, and the degree to which the principal may intervene to exercise such control. 29 DCHaTc

In other words, the test is whether the employer controls or has reserved the right to control the employee, not only as to the work done, but also as to the means and methods by which the same is accomplished. 30

Petitioner argues that several factors exist to prove that respondents exercised control over her and her work, namely:

a. As to the Contents of her Column — The PETITIONER had to insure that the contents of her column hewed closely to the objectives of its Lifestyle Section and the over-all principles that the newspaper projects itself to stand for. As admitted, she wanted to write about death in relation to All Souls Day but was advised not to.

b. As to Time Control — The PETITIONER, as a columnist, had to observe the deadlines of the newspaper for her articles to be published. These deadlines were usually that time period when the Section Editor has to "close the pages" of the Lifestyle Section where the column in located. "To close the pages" means to prepare them for printing and publication. TAcCDI

As a columnist, the PETITIONER's writings had a definite day on which it was going to appear. So she submitted her articles two days before the designated day on which the column would come out.

This is the usual routine of newspaper work. Deadlines are set to fulfill the newspapers' obligations to the readers with regard to timeliness and freshness of ideas.

c. As to Control of Space — The PETITIONER was told to submit only two or three pages of article for the column, (sic) "Feminist Reflections" per week. To go beyond that, the Lifestyle editor would already chop off the article and publish the rest for the next week. This shows that PRIVATE RESPONDENTS had control over the space that the PETITIONER was assigned to fill. DTSaHI

d. As to Discipline — Over time, the newspaper readers' eyes are trained or habituated to look for and read the works of their favorite regular writers and columnists. They are conditioned, based on their daily purchase of the newspaper, to look for specific spaces in the newspapers for their favorite write-ups/or opinions on matters relevant and significant issues aside from not being late or amiss in the responsibility of timely submission of their articles. CASaEc

The PETITIONER was disciplined to submit her articles on highly relevant and significant issues on time by the PRIVATE RESPONDENTS who have a say on whether the topics belong to those considered as highly relevant and significant, through the Lifestyle Section Editor. The PETITIONER had to discuss the topics first and submit the articles two days before publication date to keep her column in the newspaper space regularly as expected or without miss by its readers. 31

Given this discussion by petitioner, we then ask the question: Is this the form of control that our labor laws contemplate such as to establish an employer-employee relationship between petitioner and respondent PDI?

It is not.

Petitioner has misconstrued the "control test", as did the Labor Arbiter and the NLRC.

Not all rules imposed by the hiring party on the hired party indicate that the latter is an employee of the former. Rules which serve as general guidelines towards the achievement of the mutually desired result are not indicative of the power of control. 32 Thus, this Court has explained:

It should, however, be obvious that not every form of control that the hiring party reserves to himself over the conduct of the party hired in relation to the services rendered may be accorded the effect of establishing an employer-employee relationship between them in the legal or technical sense of the term. A line must be drawn somewhere, if the recognized distinction between an employee and an individual contractor is not to vanish altogether. Realistically, it would be a rare contract of service that gives untrammeled freedom to the party hired and eschews any intervention whatsoever in his performance of the engagement. IASEca

Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it. . . . . 33 ISDCaT

The main determinant therefore is whether the rules set by the employer are meant to control not just the results of the work but also the means and method to be used by the hired party in order to achieve such results. Thus, in this case, we are to examine the factors enumerated by petitioner to see if these are merely guidelines or if they indeed fulfill the requirements of the control test.

Petitioner believes that respondents' acts are meant to control how she executes her work. We do not agree. A careful examination reveals that the factors enumerated by the petitioner are inherent conditions in running a newspaper. In other words, the so-called control as to time, space, and discipline are dictated by the very nature of the newspaper business itself.

We agree with the observations of the Office of the Solicitor General that:

The Inquirer is the publisher of a newspaper of general circulation which is widely read throughout the country. As such, public interest dictates that every article appearing in the newspaper should subscribe to the standards set by the Inquirer, with its thousands of readers in mind. It is not, therefore, unusual for the Inquirer to control what would be published in the newspaper. What is important is the fact that such control pertains only to the end result, i.e., the submitted articles. The Inquirer has no control over [petitioner] as to the means or method used by her in the preparation of her articles. The articles are done by [petitioner] herself without any intervention from the Inquirer. 34 DIECTc

Petitioner has not shown that PDI, acting through its editors, dictated how she was to write or produce her articles each week. Aside from the constraints presented by the space allocation of her column, there were no restraints on her creativity; petitioner was free to write her column in the manner and style she was accustomed to and to use whatever research method she deemed suitable for her purpose. The apparent limitation that she had to write only on subjects that befitted the Lifestyle section did not translate to control, but was simply a logical consequence of the fact that her column appeared in that section and therefore had to cater to the preference of the readers of that section. HTCSDE

The perceived constraint on petitioner's column was dictated by her own choice of her column's perspective. The column title "Feminist Reflections" was of her own choosing, as she herself admitted, since she had been known as a feminist writer. 35 Thus, respondent PDI, as well as her readers, could reasonably expect her columns to speak from such perspective.

Contrary to petitioner's protestations, it does not appear that there was any actual restraint or limitation on the subject matter — within the Lifestyle section — that she could write about. Respondent PDI did not dictate how she wrote or what she wrote in her column. Neither did PDI's guidelines dictate the kind of research, time, and effort she put into each column. In fact, petitioner herself said that she received "no comments on her articles . . . except for her to shorten them to fit into the box allotted to her column". Therefore, the control that PDI exercised over petitioner was only as to the finished product of her efforts, i.e., the column itself, by way of either shortening or outright rejection of the column. cSaCDT

The newspaper's power to approve or reject publication of any specific article she wrote for her column cannot be the control contemplated in the "control test", as it is but logical that one who commissions another to do a piece of work should have the right to accept or reject the product. The important factor to consider in the "control test" is still the element of control over how the work itself is done, not just the end result thereof.

In contrast, a regular reporter is not as independent in doing his or her work for the newspaper. We note the common practice in the newspaper business of assigning its regular reporters to cover specific subjects, geographical locations, government agencies, or areas of concern, more commonly referred to as "beats". A reporter must produce stories within his or her particular beat and cannot switch to another beat without permission from the editor. In most newspapers also, a reporter must inform the editor about the story that he or she is working on for the day. The story or article must also be

submitted to the editor at a specified time. Moreover, the editor can easily pull out a reporter from one beat and ask him or her to cover another beat, if the need arises.

This is not the case for petitioner. Although petitioner had a weekly deadline to meet, she was not precluded from submitting her column ahead of time or from submitting columns to be published at a later time. More importantly, respondents did not dictate upon petitioner the subject matter of her columns, but only imposed the general guideline that the article should conform to the standards of the newspaper and the general tone of the particular section. aHECST

Where a person who works for another performs his job more or less at his own pleasure, in the manner he sees fit, not subject to definite hours or conditions of work, and is compensated according to the result of his efforts and not the amount thereof, no employer-employee relationship exists. 36

Aside from the control test, this Court has also used the economic reality test. The economic realities prevailing within the activity or between the parties are examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. 37 This is especially appropriate when, as in this case, there is no written agreement or contract on which to base the relationship. In our jurisdiction, the benchmark of economic reality in analyzing possible employment relationships for purposes of applying the Labor Code ought to be the economic dependence of the worker on his employer. 38 IEDHAT

Petitioner's main occupation is not as a columnist for respondent but as a women's rights advocate working in various women's organizations. 39 Likewise, she herself admits that she also contributes articles to other publications. 40 Thus, it cannot be said that petitioner was dependent on respondent PDI for her continued employment in respondent's line of business. 41

The inevitable conclusion is that petitioner was not respondent PDI's employee but an independent contractor, engaged to do independent work.

There is no inflexible rule to determine if a person is an employee or an independent contractor; thus, the characterization of the relationship must be made based on the particular circumstances of each case. 42 There are several factors 43 that may be considered by the courts, but as we already said, the right to control is the dominant factor in determining whether one is an employee or an independent contractor. 44

In our jurisdiction, the Court has held that an independent contractor is one who carries on a distinct and independent business and undertakes to perform the job, work, or service on one's own account and under one's own responsibility according to one's own manner and method, free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof. 45 aHESCT

On this point, Sonza v. ABS-CBN Broadcasting Corporation 46 is enlightening. In that case, the Court found, using the four-fold test, that petitioner, Jose Y. Sonza, was not an employee of ABS-CBN, but an independent contractor. Sonza was hired by ABS-CBN due to his "unique skills, talent and celebrity

status not possessed by ordinary employees", a circumstance that, the Court said, was indicative, though not conclusive, of an independent contractual relationship. Independent contractors often present themselves to possess unique skills, expertise or talent to distinguish them from ordinary employees. 47 The Court also found that, as to payment of wages, Sonza's talent fees were the result of negotiations between him and ABS-CBN. 48 As to the power of dismissal, the Court found that the terms of Sonza's engagement were dictated by the contract he entered into with ABS-CBN, and the same contract provided that either party may terminate the contract in case of breach by the other of the terms thereof. 49 However, the Court held that the foregoing are not determinative of an employer-employee relationship. Instead, it is still the power of control that is most important. HDAaIS

On the power of control, the Court found that in performing his work, Sonza only needed his skills and talent — how he delivered his lines, appeared on television, and sounded on radio were outside ABS-CBN's control. 50 Thus:

We find that ABS-CBN was not involved in the actual performance that produced the finished product of SONZA's work. ABS-CBN did not instruct SONZA how to perform his job. ABS-CBN merely reserved the right to modify the program format and airtime schedule "for more effective programming". ABS-CBN's sole concern was the quality of the shows and their standing in the ratings. Clearly, ABS-CBN did not exercise control over the means and methods of performance of SONZA's work. SHacCD

SONZA claims that ABS-CBN's power not to broadcast his shows proves ABS-CBN's power over the means and methods of the performance of his work. Although ABS-CBN did have the option not to broadcast SONZA's show, ABS-CBN was still obligated to pay SONZA's talent fees. Thus, even if ABS-CBN was completely dissatisfied with the means and methods of SONZA's performance of his work, or even with the quality or product of his work, ABS-CBN could not dismiss or even discipline SONZA. All that ABS-CBN could do is not to broadcast SONZA's show but ABS-CBN must still pay his talent fees in full. TAacIE

Clearly, ABS-CBN's right not to broadcast SONZA's show, burdened as it was by the obligation to continue paying in full SONZA's talent fees, did not amount to control over the means and methods of the performance of SONZA's work. ABS-CBN could not terminate or discipline SONZA even if the means and methods of performance of his work — how he delivered his lines and appeared on television — did not meet ABS-CBN's approval. This proves that ABS-CBN's control was limited only to the result of SONZA's work, whether to broadcast the final product or not. In either case, ABS-CBN must still pay SONZA's talent fees in full until the expiry of the Agreement.

In Vaughan, et al. v. Warner, et al., the United States Circuit Court of Appeals ruled that vaudeville performers were independent contractors although the management reserved the right to delete objectionable features in their shows. Since the management did not have control over the manner of performance of the skills of the artists, it could only control the result of the work by deleting objectionable features. cCAIDS

SONZA further contends that ABS-CBN exercised control over his work by supplying all equipment and crew. No doubt, ABS-CBN supplied the equipment, crew and airtime needed to broadcast the "Mel &

Jay" programs. However, the equipment, crew and airtime are not the "tools and instrumentalities" SONZA needed to perform his job. What SONZA principally needed were his talent or skills and the costumes necessary for his appearance. Even though ABS-CBN provided SONZA with the place of work and the necessary equipment, SONZA was still an independent contractor since ABS-CBN did not supervise and control his work. ABS-CBN's sole concern was for SONZA to display his talent during the airing of the programs.

A radio broadcast specialist who works under minimal supervision is an independent contractor. SONZA's work as television and radio program host required special skills and talent, which SONZA admittedly possesses. The records do not show that ABS-CBN exercised any supervision and control over how SONZA utilized his skills and talent in his shows. 51 aSCHcA

The instant case presents a parallel to Sonza. Petitioner was engaged as a columnist for her talent, skill, experience, and her unique viewpoint as a feminist advocate. How she utilized all these in writing her column was not subject to dictation by respondent. As in Sonza, respondent PDI was not involved in the actual performance that produced the finished product. It only reserved the right to shorten petitioner's articles based on the newspaper's capacity to accommodate the same. This fact, we note, was not unique to petitioner's column. It is a reality in the newspaper business that space constraints often dictate the length of articles and columns, even those that regularly appear therein.

Furthermore, respondent PDI did not supply petitioner with the tools and instrumentalities she needed to perform her work. Petitioner only needed her talent and skill to come up with a column every week. As such, she had all the tools she needed to perform her work.

Considering that respondent PDI was not petitioner's employer, it cannot be held guilty of illegal dismissal.

WHEREFORE, the foregoing premises considered, the Petition is DISMISSED. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 50970 are hereby AFFIRMED. SICDAa

SO ORDERED.

SECOND DIVISION

[G.R. No. 157680. October 8, 2008.]

EQUIPMENT TECHNICAL SERVICES or JOSEPH JAMES DEQUITO, petitioners, vs. COURT OF APPEALS, ALEX ALBINO, REY ALBINO, JULIUS ABANES, MIGUEL ALINAB, CHRISTOPHER BIOL, NELSON CATONG, RENATO DULOT, FLORO PACUNDO, MARCELITO GAMAS, REYNALDO LIMA, SAMMY MESAGAL, ERNESTO PADILLA, and CONRADO SULIBAGA, respondents.

D E C I S I O N

VELASCO, JR., J p:

This petition for review under Rule 45 assails and seeks the reversal of the Amended Decision and Resolution dated March 3, 2003 and March 24, 2003, respectively, of the Court of Appeals (CA) in CA-G.R. SP No. 67568. The assailed amended decision and resolution effectively set aside and reversed the consolidated resolutions dated July 30, 2001 and September 24, 2001 rendered by the National Labor Relations Commission (NLRC) and reinstated the July 24, 2000 Decision of Labor Arbiter Ermita T. Abrasaldo-Cuyuca in NLRC NCR Case Nos. 00-01-00571-99, 00-02-01429-99, and 00-02-01615-99. aHATDI

Petitioner Equipment Technical Services (ETS) is primarily engaged in the business of sub-contracting plumbing works of on-going building construction. Among its clients was Uniwide Sales, Inc. (Uniwide). Petitioner Joseph James Dequito was, during the period material, occupying the position of manager of ETS, 1 albeit the CA referred to him as ETS' president. On various occasions involving different projects, ETS hired the services of private respondents as pipe fitters, plumbers, or threaders.

In December 1998, ETS experienced financial difficulties when Uniwide, its client at the time, failed to pay for the plumbing work being done at its Coastal Mall. As a result, ETS was only able to pay its employees 13th month pay equivalent to two weeks' salary.

Unhappy over what they thought was ETS' failure to release the balance of their 13th month pay, private respondents brought their case before the Arbitration Branch of the NLRC, docketed as NLRC NCR Case No. 00-01-00571-99 and entitled as Alex Albino, Renato Dulot, Miguel Alinab, Marcelito Gamas, Julius Abanes, Christopher Biol, Sammy Mesagal, Conrado Sulibaga, Floro Pacundo v. Equipment Technical Services or Joseph James Dequito. ASEIDH

Later, two other cases were filed against ETS for illegal dismissal and payment of money claims when the complainants thereat were refused work in another ETS project, i.e., Richville project, allegedly because they refused to sign individual employment contracts with ETS. These two other cases were Nelson Catong, Roger Lamayon, Christopher Lamayon v. Equipment Technical Services or Joseph James Dequito, docketed as NLRC NCR Case No. 00-02-01429-99; and Rey Albino, Ernesto Padilla, Reynaldo Lima v. Equipment Technical Services or Joseph James Dequito, docketed as NLRC NCR Case No. 00-02-01615-99.

The three cases were consolidated before the labor arbiter. Following failed conciliation efforts, all concerned, except Roger and Christopher Lamayon, submitted, as the labor arbiter directed, their respective position papers.

Private respondents' position 2 is summed up as follows: (1) they are regular employees of ETS; (2) ETS dismissed them without cause and without due process after they filed cases for money claims against ETS in the arbitration branch of the NLRC; (3) ETS has not paid them their salaries, 13th month pay, service incentive leave pay, overtime pay, and premium pay for holidays and rest days; and (4) they are entitled to reinstatement to their former positions with paid backwages in addition to their money claims and payment of attorney's fees. caCSDT

ETS' position 3 may be summed up as follows: (1) private respondents were its contractual/project employees engaged for different projects of the company; (2) they were not illegally dismissed, having been hired on a per project basis; (3) ETS was unable to fully release private respondents' 13th month pay because Uniwide failed to pay for its contracted plumbing project; (4) ETS was forced to abandon the Uniwide project and undertake another project, the Richville project, because the chances of being paid by Uniwide were dim; (5) ETS asked private respondents to sign employment contracts to formalize their previous agreement but said private respondents refused; and (6) as a result, ETS was constrained to deny employment to private respondents as it considered the execution of employment contracts part of management prerogative before employment commences.

On July 24, 2000, Labor Arbiter Abrasaldo-Cuyuca issued a Decision, holding that private respondents were ETS' regular, not merely project, employees. Accordingly, ETS was adjudged liable for illegal dismissal and directed to pay private respondents their money claims plus 10% of the total award as attorney's fees. The fallo of the subject decision reads as follows: TCSEcI

WHEREFORE, judgment is hereby rendered declaring the dismissal of the complainants illegal.

Further, respondents are further ordered to pay the complainants their backwages, proportionate 13th month pay, [holiday] and service incentive leave pay.

Ten percent of the total award as attorney's fees.

Other claims are dismissed for lack of merit.

The complaints of Roger and Christopher all surnamed Lamayon are dismissed without prejudice.

The computation prepared by the Computation Unit, NCR, this Commission is attached [sic] forming part of this decision.

SO ORDERED. 4

ETS appealed from the above labor arbiter's decision. On July 30, 2001, the NLRC rendered a resolution which, while reversing the labor arbiter's holding with respect to the nature of private respondents' employment and the illegality of their dismissal, nevertheless upheld the validity of the monetary award extended by the labor arbiter, part of which included the award of backwages. The pertinent portion of the modificatory resolution reads as follows: HcISTE

ACCORDINGLY, premises considered, the decision appealed from is hereby MODIFIED in that the findings of regularity of employment and illegal dismissal are hereby VACATED. However, respondents are ordered to give complainants priority in hiring for present and future projects. All other dispositions are hereby AFFIRMED in toto.

SO ORDERED.

Following the denial on September 24, 2001 of ETS' motion for reconsideration, ETS elevated its case to the CA via a petition for certiorari under Rule 65, the recourse docketed as CA-G.R. SP No. 67568. As its

principal contention, ETS ascribed on the NLRC the commission of grave abuse of discretion in affirming the monetary award in favor of private respondents, despite its finding that there was no illegal dismissal in this case.

On January 23, 2002, the CA rendered judgment disposing as follows:

WHEREFORE, premises considered, the assailed resolutions of the National Labor Relations Commission dated July 30, 2001 and September 24, 2001 are hereby ANNULLED and SET ASIDE and a new one rendered ORDERING petitioner Equipment Technical Services to pay private respondents their holiday pay and service incentive leave pay for the year 1998 and the balance of their 13th month pay for the year 1999. aACHDS

The case is hereby REMANDED to Labor Arbiter Ermita T. Abrasaldo-Cuyuca for the computation of the same.

The complaint against petitioner Joseph James Dequito is hereby DISMISSED, for lack of merit.

No pronouncement as to costs.

SO ORDERED.

Upon motion of private respondents for reconsideration, the CA issued an Amended Decision 5 dated March 3, 2003 vacating its earlier January 23, 2002 decision. The CA, in main support of its present disposition, stated that the NLRC's determination that private respondents are "project workers" is "utterly unsupported by the evidence on record and is patently erroneous" and, therefore, is tainted with grave abuse of discretion. 6 The fallo of the Amended Decision reads:

WHEREFORE, premises considered, the present motion for reconsideration is hereby GRANTED. The petition is hereby DENIED DUE COURSE and accordingly DISMISSED, for lack of merit. Our Decision dated January 23, 2002 is hereby RECONSIDERED and SET ASIDE and a new one is hereby entered REVERSING and SETTING ASIDE the assailed Resolutions dated July 30, 2001 and September 24, 2001 of public respondent NLRC in NLRC NCR Case No. 00-01-00571-99 (NLRC CA No. 027203-2001), NLRC NCR Case No. 00-02-01429-99 and NLRC NCR Case No. 00-02-01615-99. The Decision dated July 24, 2000 rendered by Labor Arbiter Ermita T. Abrasaldo-Cuyuca is hereby REINSTATED and AFFIRMED in all respects, including the computation of the monetary awards in favor of private respondents forming part of and attached to the same. SCIcTD

With costs against the petitioners.

SO ORDERED.

Hence, this petition on the submission that, contrary to the findings of the CA, but conformably with the determination of the NLRC, private respondents are seasonal or project workers; the duration of their employment is not permanent but coterminus with the project to which they are assigned and from whose payroll they are paid. As project employees, private respondents cannot, according to

petitioners, validly maintain an action for illegal dismissal with prayer for reinstatement and payment of backwages, both reliefs being usually accorded following a finding of illegal dismissal.

The petition is without merit. As we see it, as did the CA and the NLRC, the primary question to be resolved and to which all others must yield is whether or not private respondents are project employees. The CA, siding with the labor arbiter, as indicated earlier, answered the poser in the affirmative, while the NLRC resolved it in the negative.

As the Court has consistently held, the service of project employees are coterminus with the project and may be terminated upon the end or completion of that project or project phase for which they were hired. Regular employees, in contrast, enjoy security of tenure and are entitled to hold on to their work or position until their services are terminated by any of the modes recognized under the Labor Code. 7 ITSaHC

The principal test for determining whether an employee is properly characterized as "project employee", as distinguished from "regular employee", is whether or not "the project employee" was assigned to carry out "a specific project or undertaking", the duration and scope of which were specified at the time the employees were engaged for that project. 8 And as Article 280 of the Labor Code, defining a regular employee vis-à-vis a project employee, would have it:

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 . . . .

It bears to stress at the outset that ETS admits hiring or employing private respondents to perform plumbing works for various projects. Given this postulate, regular employment may reasonably be presumed and it behooves ETS to prove otherwise, that is, that the employment in question was contractual in nature ending upon the expiration of the term fixed in the contract or for a specific project or undertaking. But the categorical finding of the CA, confirmatory for the most part of that of the labor arbiter, is that not a single written contract of employment fixing the terms of employment for the duration of the Uniwide project, or any other project, was submitted by ETS despite the latter's allegations that private respondents were merely contractual employees. Records of payroll and other pertinent documents, such as job contracts secured by ETS showing that private respondents were hired for specific projects, were also not submitted by ETS. 9 CDEaAI

Moreover, if private respondents were indeed employed as project employees, petitioners should have had submitted a report of termination every time their employment was terminated owing to the completion of each plumbing project. As correctly held by the CA in its Amended Decision, citing Tomas Lao Construction v. NLRC, 10 ETS' failure to report the employment termination and file the necessary papers after every project completion tends to support the claim of private respondents about their not being project employees. 11 Under Policy Instruction No. 20, Series of 1977, 12 the report must be made

to the nearest public office employment. 13 The decision in Violeta v. NLRC is also apropos, particularly when it held:

[The employer] should have filed as many reports of termination as there were construction projects actually finished if petitioners [employees] were indeed project employees, considering that petitioners were hired and again [hired] for various projects or phases of work therein. Its failure to submit reports of termination cannot but sufficiently convince us further that petitioners are truly regular employees. Just as important, the fact that petitioners had rendered more than one year of service at the time of their dismissal overturns private respondent's allegations that petitioners were hired for a specific or fixed undertaking for a limited period of time. 14 aHTDAc

The Court can allow that, in the instant case, private respondents may have initially been hired for specific projects or undertaking of petitioner ETS and, hence, may be classified as project employees. Their repeated rehiring to perform tasks necessary to the usual trade or business of ETS changed the legal situation altogether, for in the later instance, their continuous rehiring took them out from the scope of workers coterminus with specific projects and had made them regular employees. We said as much in Phesco, Inc. v. NLRC that "where the employment of project employees is extended long after the supposed project had been finished, the employees are removed from the scope of project employees and they shall be considered regular employees." 15

Parenthetically, petitioners' assertion that there can be no illegal dismissal of project employees inasmuch as they are not entitled to security of tenure is inaccurate. The constitutionally-protected right of labor to security of tenure covers both regular and project workers. 16 Their termination must be for lawful cause and must be done in a way which affords them proper notice and hearing. 17

In termination disputes, the burden of proving that an employee had been dismissed for a lawful cause or that the exacting procedural requirements under the Labor Code had been complied with lies with the employer. 18 Where there is no showing of a clear, valid, and legal cause for termination of employment, the law considers the case a matter of illegal dismissal. 19 CcAHEI

Based on the foregoing criteria, the factual findings of the labor arbiter on the regular nature of private respondents' employment, juxtaposed with ETS' failure to support its "project-workers theory", impel us to dismiss the instant petition. This is as it should be for, to paraphrase Asuncion v. NLRC, if doubt exists between the evidence of the employers and the employees, the scales of justice must be tilted in favor of the latter — the employers must adequately show rationally adequate evidence that their case is preponderantly superior. 20

As did the CA, the Court holds that private respondents are regular employees whose services were terminated without lawful cause and effected without the requisite notice and hearing.

In view of the illegality of the dismissal, the fallo of the Decision of Labor Arbiter Abrasaldo-Cuyuca, as reinstated by the CA in its assailed Amended Decision, has to be modified in the sense that private respondents are entitled to reinstatement to their previous positions as pipe fitters or threaders, as the case may be, without loss of rank and seniority rights and with full backwages.

At this juncture, the Court wishes to state that it is taking judicial notice of the fact that no corporation is registered with the Securities and Exchange Commission under the name "Equipment Technical Services". It is thus but fair that both petitioners' liability under this Decision be joint and several. IAcTaC

WHEREFORE, the Amended Decision dated March 3, 2003 of the CA in CA-G.R. SP No. 67568, reinstating the July 24, 2000 Decision of Labor Arbiter Abrasaldo-Cuyuca, is AFFIRMED with the MODIFICATION that petitioners are jointly and severally ordered to reinstate private respondents to their former positions, without loss of rank and seniority rights, with backwages from the date of dismissal until reinstated. As modified, the fallo of the labor arbiter's Decision shall read:

WHEREFORE, judgment is hereby rendered declaring the dismissal of private respondents illegal.

Petitioners ETS and Joseph James Dequito are ordered jointly and severally to reinstate private respondents ALEX ALBINO, REY ALBINO, JULIUS ABANES, MIGUEL ALINAB, CHRISTOPHER BIOL, NELSON CATONG, RENATO DULOT, FLORO PACUNDO, MARCELITO GAMAS, REYNALDO LIMA, SAMMY MESAGAL, ERNESTO PADILLA, and CONRADO SULIBAGA to their respective positions without loss of rank and seniority rights with full backwages from the date of dismissal up to the date of actual reinstatement. Petitioners are likewise jointly and severally liable to private respondents for proportionate 13th month pay, holiday pay, and service incentive leave pay. SHIcDT

Ten percent of the total award shall be paid to the counsel of private respondents as attorney's fees.

Other claims are dismissed for lack of merit.

The complaints of Roger and Christopher, both surnamed Lamayon, are dismissed without prejudice.

Costs against petitioners.

SO ORDERED.