Labrel ((34 Cases)

8/9/2019 Labrel ((34 Cases)

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LABOR RELATIONS

(1) Capitol Medical vs. NLRC, 457 SCRA

235/ G.R. No. 147! Ap"il 2#, 25

$AC%S

The petitioner’s refusal to negotiate for a

collective bargaining agreement (CBA) resulted in aunion-led strike on April 15 1!!"#

The Capitol Medical Center Employees

Association-Alliance of Filipino Workers the $nionhad to contend %ith another union the Capitol Medical

Center Alliance of Concerned Employees (CMC-ACE )%hich demanded for a certification election among therank-and-file emplo&ees of the petitioner# 'ed-Arbiter Brigida adrigon granted the petition and the matter %asappealed to the ecretar& of *abor and +mplo&ment(,*+)# $ndersecretar& Bienvenido +# *aguesma

rendered a esolution granting the appeal# .e like%isedenied the motion filed b& the petitioner and the C'C-AC+# The latter thereafter brought the matter to theCourt %hich rendered /udgment affirming the resolutionof $ndersecretar& *aguesma thus0 (1) ismissing the

petition for certification election filed b& the Capitol'edical Center Alliance of Concerned +mplo&ees-$nited ilipino ervices 2orkers for lack of merit3 and3(4) irecting the management of the Capitol 'edicalCenter to negotiate a CBA %ith the Capitol 'edicalCenter +mplo&ees Association-Alliance of ilipino

2orkers the certified bargaining agent of the rank-and-file emplo&ees#

The decision of the Court became final andeecutor&# Thereafter in a *etter dated ,ctober " 1!!6addressed to r# Thelma 7# Clemente the 8resident andirector of the petitioner the $nion re9uested for ameeting to discuss matters pertaining to a negotiation for a CBA conformabl& %ith the decision of the Court#:.o%ever in a *etter to the $nion dated ,ctober 1;1!!6 r# Clemente re/ected the proposed meeting onher claim that it %as a violation of epublic Act 7o#

<61" and that the $nion %as not a legitimate one# ,n,ctober 15 1!!6 the petitioner filed a 8etition for theCancellation of the $nion’s Certificate of egistration%ith the epartment of *abor and +mplo&ment (,*+)on the follo%ing grounds0 (1) espondent has failed for several &ears to submit annuall& its annual financialstatements and other documents as re9uired b& la%# or this reason respondent has long lost its legal personalit&as a union3 (4) espondent also engaged in a strike%hich has been declared illegal b& the 7*C#

The $nion alleged as grounds for the pro/ected strike the

follo%ing acts of the petitioner0 (a) refusal to bargain;

(b) coercion on employees; and (c)

interference/restraint to self-organiation!

A series of conferences %as conducted before the 7C'B(7ational Capital egion) but no agreement %asreached# ,n 7ovember < 1!!6 the petitioner even fileda *etter %ith the Board re9uesting that the notice of strike be dismissed3= the $nion had apparentl& failed to

furnish the egional Branch of the 7C'B %ith a cop&of a notice of the meeting %here the strike vote %asconducted#

,n 7ovember 4; 1!!6 the $nion submitted to the 7C'B the minutes! of the alleged strike vote

purportedl& held on 7ovember 1; 1!!6 at the parkinglot in front of the petitioner’s premises at the corner of cout 'agbanua treet and 8ana& Avenue >ue?on Cit&#@t appears that 16= out of the ";; union members

participated therein and the results %ere as follo%s0 15<members voted to strike3 1: members cast negativevotes3 and eight votes %ere spoiled#

,n 7ovember 4= 1!!6 the officers and members of the$nion staged a strike#

The *abor Arbiter found and declared in his decision thatno secret voting ever took place in the parking lotfronting the hospital on 7ovember 1; 1!!6 b& andamong the ";; members of the respondent $nion# +r%inBarbacena the overseer of the onl& parking lot frontingthe hospital and securit& guards imon Ting-?on andeggie Bara%id declared in their respective affidavitsthat no secret voting ever took place on 7ovember 1;1!!63 16 emplo&ees of the petitioner also denied in their respective statements that the& %ere not members of therespondent $nion and %ere asked to merel& signattendance papers and unnumbered votes# The 7*C

and the CA declared in their respective decisions that theaffidavits of the petitioner’s 16 emplo&ees had no

probative %eight because the said emplo&ees merel&eecuted their affidavits out of fear of losing their /obs#The 7*C and the CA anchored their conclusion ontheir finding that the affidavits of the emplo&ees %ereuniform and pro forma#

&SS'S

(1)2hether the respondent Capitol Medical Center

Employees Association-Alliance of Filipino

Workers (t"e #nion$ for brevit&) %as the eclusive

bargaining agent of the rank-and-file emplo&ees of the petitioner Capitol 'edical Center @nc#3 (4)2,7 the strike staged b& the $nion is legal

L*

N+. The upreme Court agree %ith the findingof the *abor Arbiter that no secret balloting to strike %asconducted b& the respondent $nion on 7ovember 1;1!!6 at the parking lot in front of the hospital at thecorner of cout 'agbanua treet and 8ana& Avenue>ue?on Cit&# @t %as agreed %ith the petitioner that the

respondent $nion failed to compl& %ith the second paragraph of %ection &'$ ule ** of t"e +mnibus

ules of t"e ,C %hich reads0 %ection &'! St"ie o"

loco-t vote. A decision to declare a strike must beapproved b& a ma/orit& of the total union membership inthe bargaining unit concerned obtained b& secret ballot inmeetings or referenda called for the purpose# A decisionto declare a lockout must be approved b& a ma/orit& of the Board of irectors of the emplo&er corporation or

1



LABOR RELATIONS

association or the partners obtained b& a secret ballot in ameeting called for the purpose# The regional branch of the Board ma& at its o%n initiative or upon the re9uestof an& affected part& supervise the conduct of the secret

balloting# @n ever& case the union or the emplo&er shallfurnish the regional branch of the Board and otice o0

eetis "e0e""ed to i te p"ecedi pa"a"ap at

least tet60o-" (24) o-"s before such meetings as%ell as the results of the voting at least seve (7) das

e0o"e te iteded st"ie o" loco-t sub/ect to thecooling-off period provided in this ule# Although thesecond paragraph of ection 1; of the said ule is not

provided in the *abor Code of the 8hilippinesnevertheless the same %as incorporated in the ,mnibusules @mplementing the *abor Code and has the forceand effect of la%#

R'L&NG

The petition is A7T+# The ecisions of the Courtof Appeals and 7*C are +T A@+ A7+++# The ecision of the *abor Arbiter is+@7TAT+#

A union is mandated to notif& the 7C'B (7ationalConciliation 'ediation Board) of an impending disputein a particular bargaining unit via a notice of strike#Thereafter the 7C'B through its conciliator-mediators

shall call the parties to a conference at the soonest possible time in order to activel& assist them in eploringall possibilities for amicable settlement# @n the event of the failure in the conciliationDmediation proceedings the

parties shall be encouraged to submit their dispute for voluntar& arbitration# .o%ever if the parties refuse theunion may hold a strike vote and if the re9uisite number of votes is obtained a strike ma& ensue# The p-"pose of te st"ie vote is to ensure that the decision to strike

broadl& rests %ith the majority of the union members ingeneral and not %ith a mere minorit& and at the same

time discourage %ildcat strikes union bossism and evencorruption# A strike vote report submitted to the 7C'Bat least seve das prior to the intended date of strikeensures that a strike vote %as indeed taken# @n the eventthat the report is false the seve6da pe"iod affords themembers an opportunit& to take the appropriate remed&

before it is too late# The &. to ' day cooling-off period

is designed to afford the parties the opportunity to

amicably resol0e t"e dispute 1it" t"e assistance of t"e

,CM2 conciliator/mediator$ %hile the seve6da st"ie

a is intended to give the ,*+ an opportunit& toverif& %hether the pro/ected strike reall& carries the

imprimatur of the ma/orit& of the union members#

The re9uirement of giving notice of the conduct of astrike vote to the 7C'B at least 34 "ours before themeeting for the said purpose is designed to (a ) inform the

NCMB of the intent of the union to conduct a strike vote;

(b) give the NCMB ample time to decide on whether or

not there is a need to supervise the conduct of the strike

vote to prevent any acts of violence andor irregularities

attendant thereto; and (c) should the NCMB decide on

its own initiative or upon the re!uest of an interested

party including the employer" to supervise the strike vote"

to give it ample time to prepare for the deployment of the

re!uisite personnel" including peace officers if need be#

$nless and until the 7C'B is notified at least 24 o-"s

of the union’s decision to conduct a strike vote and thedate place and time thereof the 7C'B cannotdetermine for itself %hether to supervise a strike votemeeting or not and insure its peaceful and regular conduct# The failure of a union to compl& %ith there9uirement of the giving of notice to the 7C'B at least24 o-"s prior to the holding of a strike vote meeting%ill render the subse9uent strike staged b& the unionillegal#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE

(2) Sa"ieto vs. %-ico, 1#2 SCRA #7#/

Nos. L675271673 8-e 27, 19!!

$AC%S

The case arose %hen on 'a& 6 1!=< petitioner Asian 5ransmission Corporation terminated the servicesof Catalio Sa"ieto vice$president of the Bisig ng

%sian &ransmission 'abor nion (B%&)" for allegedl&carr&ing a deadl& %eapon in the compan& premises# As aresult the :A%' 0iled a otice o0 st"ie on 'a& 4<1!=< claiming that the ATC had committed an unfair

labor practice# The conciliator& conference held on Fune5 1!=< failed to settle the dispute# The ATC then filed a

petition asking the 'inistr& of *abor and +mplo&ment toassume /urisdiction over the matter or certif& the same tothe 7*C for compulsor& arbitration# 7oting that theimpending strike %ould pre/udice the national interest as%ell as the %elfare of some 35 o"e"s and their families the ',*+ issued an order on Fune " 1!=<certif&ing the labor dispute to the 7*C# At the sametime it en/oined the management from locking out itsemplo&ees and the union from declaring a strike or

similar concerted action# This order %as reiterated onFune 1" 1!=< upon the representation of the ATC thatsome :; %orkers had declared a strike and %ere

picketing the compan& premises# 8roceedings could notcontinue in the NLRC, ho%ever because of theacceptance b& 8resident A9uino of the resignations of eight of its members leaving onl& the vice-chair- man inoffice# or this reason the ',*+ on eptember !1!=< set aside the orders of Fune ! and 1" 1!=< anddirectl& assumed /urisdiction of the dispute at the sametime en/oining the compan& to accept all returning%orkers# This order %as itself set aside on 7ovember 4:

1!=< upon motion of both the BAT$ and the ATC invie% of the appointment of ne% commissioners in the

7*C# The ',*+ then returned the case to therespondent 7*C and directed it to epeditiousl&resolve all issues relating to the dispute Gadding that theunion and the striking %orkers are ordered to return to%ork immediatel&#H Conformabl& the 7*C issued onFanuar& 1" 1!=6 the follo%ing resolution %hich it

2



LABOR RELATIONS

affirmed in its resolution of ebruar& 14 1!=6 den&ingthe motion for reconsideration#

Asian Transmission Corporation is an eport-orientedenterprise and its annual eport amounts to !;I of itssales generating more than t%elve (14) million dollars

per &ear# The corporation emplo&s three hundred fift&("5;) %orkers %ith a total monthl& take home pa& or approimatel& 81";;;;;#;; a month#

&SS';

hether or not a return-to-1ork order may be

validly issued by the ,ational abor elations

Commission pending determination of the legality of the

strike; and

L*

N+. @t is contended b& the ATC that the 7*Chad no /urisdiction in issuing the return$to$work order

and that in an& case the same should be annulled for being oppressive and violative of due process# The9uestion of competence is easil& resolved# The authorit&for the order is found in A"ticle 2#4() of the *abor Code as amended b& B#8# Blg# 446#

Accordingl& the Court holds that the return-to-%ork order should benefit onl& those %orkers %hocomplied there%ith and regardless of the outcome of the

compulsor& arbitration proceedings are entitled to be paid for %ork the& have actuall& performed# Conversel&t"ose 1orkers 1"o refused to obey t"e said order and

instead 1aged t"e restrained strike are not entitled to

be paid for 1ork not done or to reinstatement to t"e

positions t"ey "a0e abandoned by t"eir refusal to

return t"ereto as ordered #

R'L&NG;

The temporar& restraining order of August 141!=< and eptember 41 1!=< are C,7T@7$+ @7

,C+ until completion of the compulsor& arbitration proceedings in the 7*C#

---------------------------------------

(3) Lapada <o"e"s 'io = et. al. vs. Natioal

Lao" Relatios Coissio, 24! SCRA 95/ G.R.

Nos. 95494697.Septee" 7, 1995

$AC%S

8etitioner apanday Agricultural Workers6

#nion ($nion for brevit&) and petitioners-%orkers of

*apanda& Agricultural and evelopment Corporationand CA+C, Agro evelopment 8hilippines @nc# seek to reverse the consolidated ecision dated August 4!1!!; rendered b& public respondent 7*C declaringtheir strike illegal and ordering the dismissal of their leaders# 8rivate respondents are sister companiesengaged in the production of bananas# Their agriculturalestablishments are located in avao Cit&#

,n the other hand petitioner *apanda& 2orkers’ $nion($nion) is the dul& certified bargaining agent of the rank and file emplo&ees of private respondents# The $nion isaffiliated %ith the J'$-A7*, (Alliance of

7ationalist and enuine *abor ,rgani?ation)# The other petitioners are all members of the $nion#The records sho% that petitioner $nion has a collective

bargaining agreement %ith private respondents coveringthe period from ecember 5 1!=5 to 7ovember ";1!==# A fe% months before the epiration of their CBA

private respondents initiated certain management policies%hich disrupted the relationship of the parties#8rivate respondents contracted 8hilippine +agle8rotectors and ecurit& Agenc& @nc# to provide securit&services for their business premises# Their contract alsocalled for the protection of the lives and limbs of privaterespondents’ officers emplo&ees and guests %ithincompan& premises# The $nion branded the securit&guards posted %ithin the compan& premises as privaterespondents’ GgoonsH and Gspecial forces#H @t also

accused the guards of intimidating and harassing their members#The $nion filed on August 45 1!== a 7otice of trike%ith the 7ational Conciliation and 'ediation Board(7C'B)# @t accused the compan& of unfair labor

practices consisting of coercion of emplo&eesintimidation of union members and union-busting#4These %ere the same issues raised b& the $nion duringthe August 4 1!== labor-management meeting#,n August 4! 1!== the 7C'B called a conciliation

conference# The conference &ielded the follo%ingagreement0

(1) $nion officers including the officials of J'$-A7*, and the +ecutive irector of the 7C'B%ould attend the .@ seminar on eptember 5 1!==3and3(4) A committee shall convene on eptember 1; 1!== toestablish guidelines governing the guards#

The $nion officials did attend the eptember 51!== seminar# 2hile the& no longer ob/ected to thecontinuation of the seminar the& reiterated their demandfor the deletion of the discussion pertaining to the J'$-A7*,#

,n eptember 1: 1!== private respondents filedseparate charges against the $nion and its members for illegal strike unfair labor practice and damages %ith

pra&er for in/unction#,n ,ctober " 1!== a strike vote %as conducted amongthe members of the $nion and those in favor of the strike%on over%helming support from the %orkers# The resultof the strike vote %as then submitted to the 7C'B on,ctober 1; 1!==# T%o da&s later or on ,ctober 141!== the $nion struck#,n the bases of the foregoing facts *abor Arbiter Antonio illanueva ruled that the $nion staged an illegalstrike#>etitioe"s no% claim that public respondent 7*C

gravel& abused its discretion in0 a) declaring that their activities from eptember ! 1!== to ,ctober 14 1!==%ere strike activities3 and b) declaring that the strikestaged on ,ctober 14 1!== %as illegal#The critical issue is the legalit& of the strike held on,ctober 14 1!==# The applicable la%s are Articles 4<"and 4<: of the *abor Code as amended b& +#,# 7o# 111dated ecember 4: 1!=<#

3



LABOR RELATIONS

8aragraphs (c) and (f) of Article 4<" of the *abor Codeas amended b& +#,# 111#

&SS'S; (1) 2,7 the strike conducted b& the union on,ctober 14 1!== is valid (4) 2,7 union members %ho%ere merel& instigated to participate in the illegal strike

should be treated differentl& from their leaders

L*

1) N+. Appl&ing the la% to the case at bar the courtruled that strike conducted b& the union on ,ctober 141!== is plainl& illegal as it %as held %ithin the seven (6)da& %aiting period provided for b& paragraph (f) Article4<" of the *abor Code as amended# The haste in holdingthe strike prevented the epartment of *abor and+mplo&ment from verif&ing %hether it carried theapproval of the ma/orit& of the union members3

4) ?S. The upreme Court like%ise agreed %ith the public respondent that the union members %ho %eremerel& instigated to participate in the illegal strikeshould be treated differentl& from their leaders# 8art of their benign consideration for labor is the polic& of reinstating rank$and$file workers %ho %ere merel&misled in supporting illegal strikes# 7onetheless these

reinstated workers shall not be entitled to backwages as

they should not be compensated for services skipped

during the illegal strike#

R'L&NG; The petition is dismissed for failure to sho%grave abuse of discretion on the part of the publicrespondent#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEEE

(4) Sta0o"d Ma"eti Co"p. vs. 8-lia, 423 SCRA

#33/ G.R. No. 14549#. $e"-a" 24, 24

$AC%S

The instant controvers& stemmed from a letter sent b&Koilo # e *a Cru? Fr# president of the 7"ilippine

Agricultural$ Commercial and *ndustrial Workers6

#nion (>AC&<'6%'C>), on 7ovember 4 1!!: toosario A# Apacible the treasurer and general manager of herein petitioners tamford 'arketing Corporation8 'anufacturing Corporation iorgio Antonio'arketing Corporation Clementine 'arketingCorporation and $ltimate Concept 8hils# @nc# aid letter advised Apacible that the rank-and-file emplo&ees of theaforementioned companies had formed the Apacible+nterprise +mplo&ees’ $nion-8AC@2$-T$C8# Theunion demanded that management recogni?e its

eistence# hortl& thereafter discord reared its ugl& headand rancor came hard on its %ake#

petitioner tamford alleged that private respondent Fulian%as a supervising emplo&ee at the 8atrick’s Bouti9ue athoemart (') 7orthmall# @n ,ctober 1!!: %hen she%as four (:) to five (5) months pregnant themanagement of ' 7orthmall asked her to go onmaternit& leave pursuant to compan& polic&# Fulian %as

then directed to report at tamford’s .ead ,ffice for reassignment# he %as also asked to submit a medicalcertificate to enable the compan& to approimate her deliver& date# Fulian ho%ever allegedl& failed to compl&%ith these directives and instead ceased to report for %ork %ithout having given notice# tamford then

allegedl& asked Te/ada to take over Fulian’s position butthe former ineplicabl& refused to compl& %ith themanagement directive# @nstead like Fulian sheabandoned her %ork %ith nar& a notice or aneplanation#

,n 'arch 16 1!!5 8AC@2$-T$C8 filed on behalf of fift& (5;) emplo&ees allegedl& illegall& dismissed for union membership b& the petitioners a Complaint beforethe Arbitration Branch of 7*C 'etro 'anila#8AC@2$-T$C8 charged petitioners herein %ith unfair labor practice# The Complaint alleged that %henApacible received the letter of 8AC@2$-T$C8management began to harass the members of the localchapter a move %hich culminated in their outrightdismissal from emplo&ment %ithout an& /ust or la%fulcause# @t %as a clear case of union-busting averred8AC@2$-T$C8#

8etitioners argue that respondents %ere legall&dismissed pursuant to Article 4<:11 of the *abor Codein vie% of the determination b& the *abor Arbiter that thestrike conducted b& respondents are illegal and that

illegal acts attended the mass action# The respondentscounter that the determination of the illegalit& of strike isinconse9uential as the conclusion b& the appellate courton the illegalit& of dismissal %as based on the

petitioners’ non-compliance %ith the due processre9uirements on terminating emplo&ees %hich hadnothing to do %ith the legalit& of the strike#

@n the instant case %e find no reason to disagree %ith thefindings of the 7*C that the strike conducted b& therespondent union is illegal# irst it has not been sho%nto the satisfaction of this Court that said union is a

legitimate labor organi?ation entitled under Article 4<"(c) to file a notice of strike on behalf of its members#econd the other re9uirements under Article 4<" (c) and(f) %ere not complied %ith b& the striking union# ,n thismatter the record is bare of an& sho%ing to the contrar&#.ence %hat is left for this Court to do is to determinethe effects of the illegalit& of the strike on respondentsunion officers and members specificall& (a) %hether such %ould /ustif& their dismissal from emplo&ment and(b) %hether the& ceased to be entitled to the monetar&a%ards and other appropriate reliefs and remedies#

2hile holding the strike illegal the Court of Appealsnonetheless still ruled that the union officers andmembers %ere illegall& dismissed for non-observance of due process re9uirements and union busting b&management# @t like%ise gave no credence to the chargeof abandonment against Fulian and Te/ada# Thus ita%arded separation pa& in lieu of reinstatement to allunion officers including respondents Fulian and Te/ada

4



LABOR RELATIONS

and affirmed all other monetar& a%ards b& the *abor Arbiter including back%ages#

,n this point %e affirm the findings of the appellatecourt that Fulian and Te/ada did not abandon their emplo&ment# 8etitioners utterl& failed to sho% proof that

Fulian and Te/ada had the intent to abandon their %ork and sever their emplo&ment relationship %ith petitioners#@t is established that an emplo&ee %ho forth%ith takessteps to protest his la&off cannot be said to haveabandoned his %ork#4; .o%ever %e cannot sustain theappellate court’s ruling that the dismissal of Fulian andTe/ada %as tantamount to unfair labor practice# There issimpl& nothing on record to sho% that Fulian and Te/ada%ere discouraged or prohibited from /oining an& union#.ence the petitioners cannot be held liable for unfair labor practice#

&SS'S

(1) 2hether the respondents union officers and members%ere validl& and legall& dismissed from emplo&mentconsidering the illealit o0 te st"ie3

(4) 2hether the respondents union officers and membersare entitled to back%ages separation pa& andreinstatement respectivel&

L*

1) ?S# The dismissals per se are not invalid but onl&ineffectual in accordance %ith errano v# 7ational *abor elations Commission# @n said case the court held that(1) the emplo&er’s failure to compl& %ith the noticere9uirement does not constitute denial of due process

but mere failure to observe a procedure for terminationof emplo&ment %hich makes the termination merel&ineffectual and (4) the dismissal shall be upheld but theemplo&er must be sanctioned for non-compliance %iththe prescribed procedure#

4) As a sanction for non-compliance %ith notice

re9uirements for la%ful termination b& the petitionersonl& back1ages are AWA8E8 to the union officerscomputed from the time the& %ere dismissed until thefinal entr& of /udgment of this case# The court affirm thefindings of the appellate court that 9ulian and 5e:ada didnot abandon their emplo&ment# 8etitioners utterl& failedto sho% proof that Fulian and Te/ada had the intent toabandon their %ork and sever their emplo&mentrelationship %ith petitioners# @t is established that anemplo&ee %ho forth%ith takes steps to protest his la&off cannot be said to have abandoned his %ork#

R'L&NG

The assailed ecision of the Court of Appeals datedApril 4< 4;;; and its esolution of ,ctober 11 4;;; inCA-## 8 7o# 5"1<! are A@'+ %ith',@@CAT@,7# *isissal o0 te -io o00ice"s is

decla"ed N+% &N@AL&*, and te aa"d o0 sepa"atio

pa to said -io o00ice"s is e"e *L%*#.o%ever as a sanction for non$compliance with notice

re!uirements for lawful termination by the petitioners"

back1ages are AWA8E8 to the union officers

computed from the time they were dismissed until the

final entry of judgment of this case# The rest of thedispositions of the Court of Appeals in its ecision of April 4< 4;;; in CA-## 8 7o# 5"1<! are hereb&

A@'+#

EEEEEEEEEEEEEEEEEEEEEEEEEEE

(5) St. Scolasticas Collee vs. %o""es, 21 SCRA 5#5/

G.R. No. 115! 8-e 29, 1992

$AC%S

,n 4; Ful& 1!!; petitioner %t! %c"olastica6s

Collegeor C+LLG and private respondent %ama"an

ng Manggaga1ang 7ang-Edukasyon sa %ta!

Eskolastika-,AF5E# or 'N&+N initiated negotiationsfor a first-ever collective bargaining agreement# Adeadlock in the negotiations prompted the $7@,7 to fileon : ,ctober 1!!; a 7otice of trike %ith theepartment of *abor and +mplo&ment or *>AR%MN%#

,n 5 7ovember 1!!; the $7@,7 declared a strike%hich paral&?ed the operations of the C,**++#Affecting as it did the interest of the students publicrespondent +C+TAL immediatel& assumed

/urisdiction over the labor dispute and issued on the same

da& 5 7ovember 1!!; a return-to-%ork order# Thefollo%ing da& < 7ovember 1!!; the $7@,7 %asserved the ,rder# ,n 6 7ovember 1!!; instead of returning to %ork the $7@,7 filed a motion for reconsideration of the return-to-%ork order 9uestioninginter alia the assumption of /urisdiction b& the+C+TAL over the labor dispute#

,n ! 7ovember 1!!; the C,**++ sent individualletters to the striking emplo&ees en/oining them to returnto %ork not later than =0;; oMclock A#'# of 14 7ovember 1!!; and at the same time giving notice to some

t%ent&-three (4") %orkers that their return %ould be%ithout pre/udice to the filing of appropriate chargesagainst them# @n response the $7@,7 presented a list of si (<) demands to the C,**++ in a dialogueconducted on 11 7ovember 1!!;# The most important of these demands %as the unconditional acceptance back to%ork of the striking emplo&ees# But these %ere flatl&re/ected#

*ike%ise on ! 7ovember 1!!; respondent+C+TAL denied reconsideration of his return-to-%ork order and sternl& %arned the striking emplo&ees to

compl& %ith its terms# ,n 14 7ovember 1!!; the$7@,7 received the ,rder#

,n 4" 7ovember 1!!; the C,**++ mailed individualnotices of termination to the striking emplo&ees %hich%ere received on 4< 7ovember 1!!; or later# The$7@,7 officers and members then tried to return to%ork but %ere no longer accepted b& the C,**++#

5



LABOR RELATIONS

,n 5 ecember 1!!; a Complaint for @llegal trike %asfiled against the $7@,7 its officers and several of itsmembers before the 7ational *abor elationsCommission (7*C)#

,n 14 April 1!!1 respondent +C+TAL issued the

assailed ,rder %hich inter alia directed thereinstatement of striking $7@,7 members premised onhis finding that no violent or other%ise illegal actaccompanied the conduct of the strike and that afledgling $7@,7 like private respondent %as Gnaturall&epected to ehibit unbridled if ineperiencedenthusiasm in asserting its eistence#H4 7everthelessthe aforesaid ,rder held $7@,7 officers responsible for the violation of the return-to-%ork orders of 5 and !

7ovember 1!!; correspondingl& sustained their termination#

*etitioner !uestions the assumption by respondent

+,C-,&%-. of jurisdiction to decide on termination

disputes" maintaining that such jurisdiction is vested

instead in the 'abor %rbiter pursuant to Art# 416 of the*abor Code thusN

BA"t. 217. 8-"isdictio o0 Lao" A"ite"s ad te

Coissio.(a) +cept as other%ise provided under this Code the *abor Arbiters shall have original andeclusive /urisdiction to hear and decide %ithin thirt&(";) calendar da&s after the submission of the case b& the

parties for decision %ithout etension the follo%ingcases involving all %orkers %hether agricultural or non-agricultural0 4# Termination disputes 5#Cases arising from an& violation of Article 4<: of thisCode including 9uestions on the legalit& of strikes andlock-outs H

8etitioner further contends that follo%ing te doct"ie

laid do i Sa"ieto v. %-ico ad 'io o0 $ilip"o

ploees v. Nestl >ilippies, &c., %orkers %horefuse to obe& a return-to-%ork order are not entitled to

be paid for %ork not done or to reinstatement to the

positions the& have abandoned b& reason of their refusalto return thereto as ordered#

8rivate respondent $7@,7 maintains that the reasonthe& failed to immediatel& compl& %ith the return-to-%ork order of 5 7ovember 1!!; %as because the&9uestioned the assumption of /urisdiction of respondent+C+TAL# The& %ere of the impression that being anacademic institution the school could not be consideredan industr& indispensable to national interest and that

pending resolution of the issue the& %ere under noobligation to immediatel& return to %ork#

This position of the $7@,7 is simpl& fla%ed# Article4<" (g) of the *abor Code provides that if a strike hasalread& taken place at the time of assumption Gallstriking emplo&ees shall immediatel& return to%ork#H This means that b& its ver& terms a return-to-%ork order is immediatel& effective and eecutor&not%ithstanding the filing of a motion for reconsideration($niversit& of to# Tomas v# 7*C)#! @t must be strictl&

complied %ith even during the pendenc& of an& petition9uestioning its validit& ($nion of ilipro +mplo&ees v#

7estlO 8hilippines @nc# supra)# After all the assumptionandDor certification order is issued in the eercise of respondent +C+TAL’s compulsive po%er of arbitration and until set aside must therefore be

immediatel& complied %ith#

The rationale for this rule is eplained in $niversit& of to# Tomas v# 7*C supra citing 8hilippine Airlines+mplo&ees Association v# 8hilippine Airlines @nc#1;thusN

/&o say that its (return$to$work order) effectivity must

wait affirmance in a motion for reconsideration is not

only to emasculate it but indeed to defeat its import" for

by then the deadline fi0ed for the return to work would"

in the ordinary course" have already passed and hence

can no longer be affirmed insofar as the time element is

concerned#1

Thus %e held in armiento v# Tuico supra that b&insisting on staging the restrained strike and defiantl&

picketing the compan& premises to prevent theresumption of operations the strikers have forfeited their right to be readmitted having abandoned their positionsand so could be validl& replaced#

The 8A* v# ecretar& of *abor and +mplo&ment supra%hich %as cited b& petitioner# But the conflict is onl&

apparent not real#

To recall 2e ruled in the latter case that the /urisdictionof the ecretar& of *abor and +mplo&ment in assumptionandDor certification cases is limited to the issues that areinvolved in the disputes or to those that are submitted tohim for resolution# The seeming difference is ho%everreconcilable# ince the matter on the legalit& or illegalit&of the strike %as never submitted to him for resolutionhe %as thus found to have eceeded his /urisdiction %henhe restrained the emplo&er from taking disciplinar&action against emplo&ees %ho staged an illegal strike#

&SS'S

(1) 2hether striking union members terminatedfor abandonment of work after failing to compl& %ithreturn-to-1ork orders of the ecretar& of *abor and+mplo&ment (+C+TAL for brevit&) should b& la%

be reinstated (2) 2hether respondent +C+TAL hasthe po%er to assume /urisdiction over a labor dispute%ith respect to the matter of termination of unionmembers

L*

1) N+. The respective liabilities of striking unionofficers and members %ho failed to immediatel& compl&%ith the return-to-%ork order is outlined in Art# 4<: of the *abor Code %hich provides that an& declaration of astrike or lockout after the ecretar& of *abor and+mplo&ment has assumed /urisdiction over the labor dispute is considered an illegal act# An& %orker or union

6



LABOR RELATIONS

officer %ho kno%ingl& participates in a strike def&ing areturn-to-%ork order ma& conse9uentl& Gbe declared tohave lost his emplo&ment status#H

The court held in +armiento v# &uico supra that b&insisting on staging the restrained strike and defiantl&

picketing the compan& premises to prevent theresumption of operations the strikers have forfeited their right to be readmitted having abandoned their positionsand so could be validl& replaced#

2) ?S. The assumption of /urisdiction b& the Sec"eta"

o0 Lao" ad ploet over labor disputesinvolving academic institutions %as alread& -peld in8hilippine chool of Business Administration v# 7oriel11 %here the court ruled thus0

/&here is no doubt that the on$going labor dispute at the

school adversely affects the national interest# &he school is a duly registered educational institution of higher

learning with more or less 2"333 students# &he on$going

work stoppage at the school unduly prejudices the

students and will entail great loss in terms of time" effort

and money to all concerned# More important" it is not

amiss to mention that the school is engaged in the

promotion of the physical" intellectual and emotional

well$being of the country4s youth#1

R'L&NG

The 8etition for Certiorari is hereb& A7T+# The,rder of 14 April 1!!1 and the esolution of "1 'a&1!!1 both issued b& respondent ecretar& of *abor and+mplo&ment are +T A@+ insofar as the& order thereinstatement of striking union members terminated b&

petitioner and the temporar& restraining order 2e issuedon Fune 4< 1!!1 is made permanent#

EEEEEEEEEEEEEEEEEEEEEEEE

(#) Sa Mi-el Co"po"atio vs. Natioal Lao"

Relatios Coissio, 43 SCRA 41!/ G.R. No.

119293. 8-e 1, 23

$AC%S

8etitioner %an Miguel Corporation (%MC) andrespondent *la1 at 2uklod ng Manggaga1a (*2M)$

eclusive bargaining agent of petitioner’s dail&-paid rank and file emplo&ees eecuted a Collective :a"aii

A"eeet (C:A) under %hich the& agreed to submitall disputes to grievance and arbitration proceedings# TheCBA also included a mutuall& enforceable o6st"ie o6

loco-t a"eeet.

,n April 11 1!!: @B' through its vice-presidentAlfredo Colomeda filed %ith the 7ational Conciliationand 'ediation Board (7C'B) a notice of strikedocketed as 7C'B-7C-7-;:-1=;-!: against

petitioner for allegedl& committing0 (1) illegal dismissalof union members (4) illegal transfer (") violation of CBA (:) contracting out of /obs being performed b&union members (5) labor-onl& contracting (<)

harassment of union officers and members (6) non-recognition of dul&-elected union officers and (=) other acts of unfair labor practice#:

The net da& @B' filed another notice of strike thistime through its president +dilberto alve? raising

similar grounds0 (1) illegal transfer (4) labor-onl&contracting (") violation of CBA (:) dismissal of unionofficers and members and (5) other acts of unfair labor

practice# This %as docketed as 7C'B-7C-7-;:-1=4-!:#

The alve? group subse9uentl& re9uested the 7C'B toconsolidate its notice of strike %ith that of the Colomedagroup to %hich the latter opposed alleging alve?’slack of authorit& in filing the same#

8etitioner thereafter filed a 'otion for everance of

7otices of trike %ith 'otion to ismiss on the groundsthat the notices raised non$strikeable issues and that the&affected four corporations %hich are separate and distinctfrom each other# After several conciliation meetingsNCM: *i"ecto" Realdo 'aldo found that the realissues involved are non-strikeable# .ence on 'a& 41!!: he issued separate letter-orders to both uniongroups converting their notices of strike into preventivemediation#

uring the conciliation meetings it %as clearl&established that the real issues involved are illegal

dismissal labor onl& contracting and internal uniondisputes %hich affect not onl& the interest of the an'iguel Corporation but also the interests of the'A7,*@A-7+T*P C,8,AT@,7 the A7'@$+* ,, @7C# and the A7 '@$+*F$@C+ @7C#

Considering that an 'iguel Corporation is the onl&impleaded emplo&er-respondent and considering further that the aforesaid companies are separate and distinctcorporate entities %e deemed it %ise to reduce and treat&our 7otice of trike as 8reventive 'ediation case for the four (:) different companies in order to evolvevoluntar& settlement of the disputes # # # # (+mphasissupplied)

T%o da&s after the declaration of strike or on Fune <1!!: petitioner filed %ith public respondent 7*C anamended 8etition for @n/unction %ith 8ra&er for the@ssuance of Temporar& estraining ,rder ree @ngressand +gress ,rder and eputi?ation ,rder# After duehearing and ocular inspection the 7*C on Fune 1"1!!: resolved to issue a temporar& restraining order (T,) directing free ingress to and egress from

petitioner’s plants %ithout pre/udice to the union’s rightto peaceful picketing and continuous hearings on thein/unction case#

&SS'

2,7 the re9uest b& the petitioner for theissuance of in/unction or restraining order ma& be validl&granted

7



LABOR RELATIONS

L*

?S# 8ursuant to %rticle 567 (e) the coercivemeasure of in/unction ma& also be used to restrain anactual or threatened unla%ful strike# @n the case of an'iguel Corporation v# 7*C %here the same issue of

7*Cs dut& to en/oin an unla%ful strike %as raised %eruled that the 7*C committed grave abuse of discretion%hen it denied the petition for in/unction to restrain theunion from declaring a strike based on non- strikeablegrounds# urther in @B' v# 7*C %e held that it is theGlegal dut& and obligationH of the 7*C to en/oin a

partial strike staged in violation of the la%# ailure toissue promptl& an in/unction b& the public respondent%as like%ise held therein to be an abuse of discretion#

espondent ho%ever resorted to force %ithoutehausting all available means %ithin its reach# uch

infringement of the aforecited CBA provisionsconstitutes further /ustification for the issuance of anin/unction against the strike# As %e said long ago0Gtrikes held in violation of the terms contained in acollective bargaining agreement are illegal especiall&%hen the& provide for conclusive arbitration clauses#These agreements must be strictl& adhered to andrespected if their ends have to be achieved#H

As to petitioner’s allegation of violation of the no-strike provision in the CBA /urisprudence has enunciated thatsuch clauses onl& bar strikes 1"ic" are economic in

nature$ but not strikes grounded on unfair labor practices# The notices filed in the case at bar alleged-0ai" lao" p"actices the initial determination of %hich %ould entail fact-finding that is best left for thelabor arbiters# 7evertheless our finding herein of theinvalidit& of the notices of strike dispenses %ith the needto discuss this issue#

@n the case at bar petitioner sought a permanentin/unction to en/oin the respondent’s strike# A strike isconsidered as the most effective %eapon in protecting the

rights of the emplo&ees to improve the terms andconditions of their emplo&ment# .o%ever to be valid astrike must be pursued %ithin legal bounds# ,ne of the

procedural re9uisites that A"ticle 2#3 o0 te Lao"

Code and its @mplementing ules prescribe is the filingof a valid notice of strike %ith the 7C'B# @mposed for the purpose of encouraging the voluntar& settlement of disputes this re9uirement has been held to be mandator&the lack of %hich shall render a strike illegal#

R'L&NG

The instant petition is hereb& A7T+# The decisionand resolution of the 7*C in @n/unction Case 7o#;;:<=-!: are +++ and +T A@+# 8etitioner and private respondent are hereb& directed to submit theissues raised in the dismissed notices of strike togrievance procedure and proceed %ith arbitration

proceedings as prescribed in their CBA if necessar&#

EEEEEEEEEEEEEEEEEEEEEEEEEE

(7) MS$ %i"e ad R-e", &c. vs. Co-"t o0 Appeals,

311 SCRA 7!4/ G.R. No. 12!#32 A--st 5, 1999

$AC%S

A labor dispute arose bet%een 7"iltread 5ire

and ubber Corporation (7"iltread) and pri0aterespondent$ 7"iltread 5ire Workers6 #nion (#nion)$ asa result of %hich the $nion filed on 'a& 46 1!!: anotice of strike in the 7ational Conciliation and'ediation BoardN7ational Capital egion charging8hiltread %ith unfair labor practices for allegedl&engaging in union-busting for violation of the provisionsof the collective bargaining agreement# This %asfollo%ed b& picketing and the holding of assemblies b&the $nion outside the gate of 8hiltread’s plant at Jm# 41+ast ervice oad outh uperhigh%a& 'untinlupa'etro 'anila# 8hiltread on the other hand filed a notice

of lock-out on 'a& "; 1!!: %hich it carried out on Fune15 1!!:# @n an order dated eptember : 1!!:4 thenecretar& of *abor 7ieves Confesor assumed /urisdictionover the labor dispute and certified it for compulsor&arbitration# he en/oined the $nion from striking and8hiltread from locking out members of the $nion#

8hiltread entered into a Memorandum of %greement %ithiam T&re 8ublic Compan& *imited (iam T&re) asubsidiar& of iam Cement# $nder the Meo"ad- o0

A"eeet 8hiltread’s plant and e9uipment %ould besold to a ne% compan& (petitioner ' Tire and ubber@nc#) =;I of %hich %ould be o%ned b& iam T&re and4;I b& 8hiltread %hile the land on %hich the plant %aslocated %ould be sold to another compan& (ucat *andCorporation) <;I of %hich %ould be o%ned b&8hiltread and :;I b& iam T&re#

,n Fune 1" 1!!5 the $nion moved to dismiss thecomplaint alleging lack of /urisdiction on the part of thetrial court# @t insisted that the parties %ere involved in alabor dispute and that petitioner being a mere Galter egoHof 8hiltread %as not an Biocet stade".D

&SS'

2hether petitioner has sho%n a clear legal rightto the issuance of a "it o0 iE-ctio under theBiocet stade"D "-le

L*

N+. 8etitioner asserts that its status as anGinnocent b&standerH %ith respect to the labor dispute

bet%een 8hiltread and the $nion entitles it to a %rit of in/unction from the civil courts and that the appellate

court erred in not upholding its corporate personalit& asindependent of 8hiltread’s# @n 7"ilippine Association of

Free abor #nions (7AF#) 0! Cloribel this Courtthrough Fustice F#B#*# e&es stated the Ginnocent

b&standerH rule as follo%s0 The right to picket as a meansof communicating the facts of a labor dispute is a phaseof the freedom of speech guaranteed b& the constitution#@f peacefull& carried out it cannot be curtailed even inthe absence of emplo&er-emplo&ee relationship# The

8



LABOR RELATIONS

right is ho%ever not an absolute one# 2hile peaceful picketing is entitled to protection as an eercise of freespeech %e believe the courts are not %ithout po%er toconfine or locali?e the sphere of communication or thedemonstration to the parties to the labor disputeincluding those %ith related interest and to insulate

establishments or persons %ith no industrial connectionor having interest totall& foreign to the contet of thedispute# Thus the right ma& be regulated at the instanceof third parties or Ginnocent b&standersH if it appears thatthe inevitable result of its eercise is to create animpression that a labor dispute %ith %hich the& have noconnection or interest eists bet%een them and the

picketing union or constitutes an invasion of their rights#

Although as petitioner contends the corporate fictionma& be disregarded %here it is used to defeat publicconvenience /ustif& %rong protect fraud defend crimeor %here the corporation is used as a mere alter-ego or

business conduit15 it is not these standards but those of the Ginnocent b&standerH rule %hich govern %hether or not petitioner is entitled to an in/unctive %rit# ince

petitioner is not an innocent bystander$< the trialcourt’s order dated Ful& 4 1!!< is a patent nullit& thetrial court having no /urisdiction to issue the %rit of in/unction# 7o motion for reconsideration need be filed%here the order is null and void#

R'L&NG

The 8etition for %rit of preliminar& in/unction is hereb&+7@+ and the decision of the Court of Appeals isA@'+#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEEE

(!) Fao"as vs. S-, 8"., 1!4 SCRA 24!/ G.R. No.

!5#11. Ap"il #, 199

$AC%S

The petitioner ictoriano Kamoras %as hired b& the

respondent o9ue u Fr# in 1!56 as overseer of hiscoconut land in Asenario apitan Cit&# Kamoras %ascharged %ith the task of having the land titled in u’sname and of assigning portions to be %orked b& tenantssupervising the cleaning planting care and cultivation of the land the harvesting of coconuts and selling of thecopra# As compensation u paid Kamoras a salar& of 84:;; per month plus one-third (1D") of the proceeds of the sales of copra %hich normall& occurred ever& t%omonths# Another one-third of the proceeds %ent to thetenants and the other third to u# This s&stem of sharing%as regularl& observed up to eptember 1!=1# As the

coconut plantation &ielded an average harvest of 41;;;nuts %orth 81=!;; based on the current market price of 8" per kilo Kamoras’ share amounted to 8<";; ever&t%o months#

,n August = 1!=" Kamoras filed in the egionalArbitration Branch of the 'inistr& of *abor and+mplo&ment in Kamboanga Cit& a complaint againsto9ue u Fr# and Anita u .ortellano for illegal

termination and breach of contract %ith damages of notless than 865<;; as his uncollected share of the coprasales from eptember 15 1!=1 to August 1!="#

,n Ful& "; 1!=< the *abor Arbiter rendered a decisionholding that Kamoras as overseer of the respondent’s

plantation %as a regular emplo&ee %hose services %erenecessar& and desirable to the usual trade or business of his emplo&er# The *abor Arbiter held that the dismissalof Kamoras %as %ithout /ust cause hence illegal# The

private respondents %ere ordered to reinstate him to hisformer position as overseer of the plantation and to pa&him back%ages e9uivalent to 8"1!65#=" in the eventthat he opted not to be reinstated or that his reinstatement%as not feasible# The private respondents appealed to the

7ational *abor elations Commission# The latter rendered a decision reversing the *abor Arbiter# @t heldthat Gthe right to control test used in determining theeistence of an emplo&er-emplo&ee relationship isunavailing in the instant case and that %hat eists

bet%een the parties is a landlord-tenant relationshipH

&SS'

2hether upon the established facts the petitioner %as an emplo&ee or tenant of the privaterespondents

L*

8etitioner Kamoras %as an emplo&ee# @t is the 7*C not the Court of Agrarian elations that has /urisdiction to tr& and decide Kamoras’ complaint for illegal dismissal# ince Kamoras %as an emplo&ee not atenant of u it is the 7*C not the Court of Agrarianelations that has /urisdiction to tr& and decideKamoras’ complaint for illegal dismissal (Art# 416 *abor Code3 'anila 'andarin +mplo&ees $nion vs# 7*C15: CA "<=3 Fac9ueline @ndustries unhill Bags@ndustries et al# vs# 7*C et al# <! CA 4:4)#

R'L&NG

The assailed decision is reversed and a ne% oneis entered declaring Kamoras to be an emplo&ee of respondent o9ue u Fr# and that his dismissal %asillegal and %ithout la%ful cause# .e is entitled toreinstatement %ith back%ages but because he is deadand ma& no longer be reinstated the private respondentsare ordered to pa& to his heirs the back%ages due him as%ell as his share of the copra sales from the plantationfor a period of three (") &ears from his illegal dismissalin eptember 1!=1 plus separation pa& in lieu of reinstatement# Costs against the private respondents#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE

9



LABOR RELATIONS

(9) Gloe6Maca Cale ad Radio Co"po"atio

(GMCR) vs. NLRC, 2# SCRA 71/ G.R. No. !2511

Ma"c 3, 1992

Lao" Las >"evetive s-spesio#N,n the matter of preventive suspension %e find for petitioner 'C#

The investigative findings of 'r# 'aramara %hich pointed to elfin aldivar’s acts in conflict %ith his position as technical operations manager necessitatedimmediate and decisive action on an& emplo&ee closel&associated %ith aldivar# The suspension of ala?ar %asfurther impelled b& the discover& of the missing eddersairconditioning unit inside the apartment privaterespondent shared %ith aldivar# $nder suchcircumstances preventive suspension %as the proper remedial recourse available to the compan& pendingala?ar’s investigation# B& itself preventive suspensiondoes not signif& that the compan& has ad/udged theemplo&ee guilt& of the charges she %as asked to ans%er and eplain# uch disciplinar& measure is resorted to for the protection of the compan&’s propert& pendinginvestigation of an& alleged malfeasance or misfeasancecommitted b& the emplo&ee#

Employees illegally dismissed entitled to reinstatement

and full back1ages! NTo go back to the instant casethere being no evidence to sho% an authori?ed muchless a legal cause for the dismissal of private respondentshe had ever& right not onl& to be entitled to

reinstatement but as %ell to full back%ages# Theintendment of the la% in prescribing the t%in remedies of reinstatement and pa&ment of back%ages is in theformer to restore the dismissed emplo&ee to her status

before she lost her /ob for the dictionar& meaning of the%ord GreinstateH is Gto restore to a state condition

position etc# from %hich one had been removedH and inthe latter to give her back the income lost during the

period of unemplo&ment# Both remedies looking to the past %ould perforce make her G%hole#H

tatutor& construction3 G8lain-meaningH rule#N@n the

case at bar the la% is on the side of private respondent#@n the first place the %ording of the *abor Code is clear and unambiguous0 GAn emplo&ee %ho is un/ustl&dismissed from %ork shall be entitled toreinstatement # # # and to his full back%ages # # #H $nder the principles of statutor& construction if a statute isclear plain and free from ambiguit& it must be given itsliteral meaning and applied %ithout attemptedinterpretation# This plain-meaning rule or verba legisderived from the maim inde animi sermo est (speech isthe inde of intention) rests on the valid presumption thatthe %ords emplo&ed b& the legislature in a statute

correctl& epress its intent or %ill and preclude the courtfrom construing it differentl&# The legislature is

presumed to kno% the meaning of the %ords to haveused %ords advisedl& and to have epressed its intent b&the use of such %ords as are found in the statute# erbalegis non est recedendum or from the %ords of a statutethere should be no departure# 7either does the provisionadmit of an& 9ualification# @f in the %isdom of the Court

there ma& be a ground or grounds for non-application of the above-cited provision this should be b& %a& of eception such as %hen the reinstatement ma& beinadmissible due to ensuing strained relations bet%eenthe emplo&er and the emplo&ee# @n such cases it should

be proved that the emplo&ee concerned occupies a

position %here he en/o&s the trust and confidence of hisemplo&er3 and that it is likel& that if reinstated anatmosphere of antipath& and antagonism ma& begenerated as to adversel& affect the efficienc& and

productivit& of the emplo&ee concerned#

>"iciple o0 Bst"aied "elatiosD. ,bviousl& the principle of Gstrained relationsH cannot be appliedindiscriminatel&# ,ther%ise reinstatement can never be

possible simpl& because some hostilit& is invariabl&engendered bet%een the parties as a result of litigation#That is human nature# Besides no strained relationsshould arise from a valid and legal act of asserting one’sright3 other%ise an emplo&ee %ho shall assert his rightcould be easil& separated from the service b& merel&

pa&ing his separation pa& on the pretet that hisrelationship %ith his emplo&er had alread& becomestrained# .ere it has not been proved that the position of

private respondent as s&stems anal&st is one that ma& becharacteri?ed as a position of trust and confidence suchthat if reinstated it ma& %ell lead to strained relations

bet%een emplo&er and emplo&ee# .ence this does notconstitute an eception to the general rule mandating

reinstatement for an emplo&ee %ho has been unla%full&dismissed#

$AC%S

or private respondent @melda *# ala?ar it%ould seem that her close association %ith elfinaldivar %ould mean the loss of her /ob# @n 'a& 1!=4

private respondent %as emplo&ed b& lobe-'acka&Cable and adio Corporation ('C) as generals&stems anal&st# Also emplo&ed b& petitioner as manager for technical operations’ support %as elfin aldivar

%ith %hom private respondent %as allegedl& ver& close#

ometime in 1!=: petitioner 'C prompted b&reports that compan& e9uipment and spare parts %orththousands of dollars under the custod& of aldivar %eremissing caused the investigation of the latter’s activities#The report dated eptember 45 1!=: prepared b& thecompan&’s internal auditor 'r# Agustin 'aramaraindicated that aldivar had entered into a partnershipst&led Concave Commercial and @ndustrial Compan&%ith ichard A# Lambao o%ner and manager of +lecon+ngineering ervices (+lecon) a supplier of petitioner

often recommended b& aldivar# The report alsodisclosed that aldivar had taken petitioner’s missingedders airconditioning unit for his o%n personal use%ithout authori?ation and also connived %ith Lambao todefraud petitioner of its propert&# The airconditioner %asrecovered onl& after petitioner 'C filed an action for replevin against aldivar#

10



LABOR RELATIONS

8etitioner compan& placed private respondent ala?ar under preventive suspension for one (6) month effective,ctober ! 1!=: thus giving her thirty (83) days %ithin%hich to eplain her side# But instead of submitting aneplanation three (8) days later or on ,ctober 14 1!=:

private respondent filed a complaint against petitioner for

illegal suspension %hich she subse9uentl& amended toinclude illegal dismissal vacation and sick leave

benefits 1"th month pa& and damages after petitioner notified her in %riting that effective 7ovember = 1!=:she %as considered dismissed Gin vie% of (her) inabilit&to refute and disprove these findings#H

After due hearing the Lao" A"ite" in a decision datedFul& 1< 1!=5 ordered petitioner compan& to reinstate

private respondent to her former or e9uivalent positionand to pa& her full back%ages and other benefits she%ould have received %ere it not for the illegal dismissal#8etitioner %as also ordered to pa& private respondentmoral damages of 85;;;;#;;# ,n appeal publicrespondent Natioal Lao" Relatios Coissio inthe 9uestioned resolution dated ecember 4! 1!=6affirmed the aforesaid decision %ith respect to thereinstatement of private respondent but limited the

back%ages to a period of t%o (4) &ears and deleted thea%ard for moral damages#

The s-spesio o0 SalaHa" %as further impelled b& thediscover& of the missing edders airconditioning unit

inside the apartment private respondent shared %ithaldivar# $nder such circumstances preventivesuspension %as the proper remedial recourse available tothe compan& pending ala?ar’s investigation# B& itself

preventive suspension does not signif& that the compan&has ad/udged the emplo&ee guilt& of the charges she %asasked to ans%er and eplain# uch disciplinar& measureis resorted to for the protection of the compan&’s

propert& pending investigation of an& allegedmalfeasance or misfeasance committed b& the emplo&ee#

A"t. 279 o0 te Lao" Code, as amended provides0

%ecurity of 5enure!= 9n cases of regular employment"

the employer shall not terminate the services of an

employee e0cept for a just cause or when authori:ed by

this &itle# %n 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 e!uivalent computed from the

time his compensation was withheld from him up to the

time of his actual reinstatement#1

&SS'

2,7 the private respondent (@melda *#ala?ar) has been legall& dismissed from heremplo&ment

L*

N+. @n the case at bar the la% is on the side of private respondent# @n the first place the %ording of the

*abor Code is clear and unambiguous0 GAn emplo&ee%ho is un/ustl& dismissed from %ork shall be entitled to"eistateet # # # and to his 0-ll acaes # # #H$nderthe principles of statutor& construction if a statute isclear plain and free from ambiguit& it must be given itsliteral meaning and applied %ithout attempted

interpretation# This plain-meaning rule or Qerbal egisderived from the maim inde animi sermo est (speech isthe inde of intention) rests on the valid presumption thatthe %ords emplo&ed b& the legislature in a statutecorrectl& epress its intent or %ill and preclude the courtfrom construing it differentl&# The legislature is

presumed to kno% the meaning of the %ords to haveused %ords advisedl& and to have epressed its intent b&the use of such %ords as are found in the statute#46erba legis non est recedendum or from the %ords of astatute there should be no departure# 7either does the

provision admit of an& 9ualification# @f in the %isdom ofthe Court there ma& be a ground or grounds for non-application of the above-cited provision this should be

b& %a& of eception such as %hen the reinstatementma& be inadmissible due to ensuing strained relations

bet%een the emplo&er and the emplo&ee#

R'L&NG

The assailed resolution of public respondent 7ational *abor elations Commission dated ecember4! 1!=6 is hereb& A@'+# 8etitioner 'C is

ordered to R&NS%A% private respondent @meldaala?ar and to pa& her back%ages e9uivalent to hersalar& for a period of t%o (4) &ears onl&#

IIIIIIIIIIIIIIIIIIIIIIIIIII

1) :-staate vs. Natioal Lao" Relatios

Coissio, 2#5 SCRA #1/ G.R. No. 111#51

Novee" 2!, 199#

Lao" La :acaes3 Court has applied differentmethods in the computation of backwages#NThis Courthas over the &ears applied different methods in thecomputation of back%ages# The first labor relations la%governing the a%ard of back%ages %as -epublic %ct No#

7<= the @ndustrial 8eace Act approved on 16 Fune 1!5"#

:acpa could be a%arded %here in the opinion of theCourt of lndustrial elations such %as necessar& toeffectuate the policies of the @ndustrial 8eace Act#N@naccordance %ith these provisions backpa& (the same as

back%ages) could be a%arded %here in the opinion of the Court of @ndustrial elations (C@) such %asnecessar& to effectuate the policies of the @ndustrial8eace Act# ,nl& in one case %as backpa& a matter of right and that %as %hen an emplo&er had declared alockout %ithout having first bargained collectivel& %ithhis emplo&ees in accordance %ith the provisions of theAct#

C* also "ad t"e implied po1er of mitigating t"e

backpay 1"ere backpay 1as allo1ed #NAs the C@ %asgiven %ide discretion to grant or disallo% pa&ment of

11



LABOR RELATIONS

backpa& (back%ages) to an emplo&ee it also had theimplied po%er of mitigating (reducing) the backpa&%here backpa& %as allo%ed# Thus in the eercise of its

/urisdiction the C@ increased or diminished the a%ardof backpa& depending on several circumstances amongthem the good faith of the emplo&er the emplo&eeRs

emplo&ment in other establishments during the period of illegal dismissal or the probabilit& that the emplo&eecould have reali?ed net earnings from outsideemplo&ment if he had eercised due diligence to searchfor outside emplo&ment#

Court ruled in t"e case of Mercury 8rug Co!$ *nc!$ et

al! 0! C*$ et al! t"at a fi>ed amount of back1ages

1it"out ?ualifications s"ould be a1arded to an illegally

dismissed employee! Nrom this ruling came the burdenof disposing of an illegal dismissal case on its merits andof determining %hether or not the computation of thea%ard of back%ages is correct# @n order not to undul&dela& the disposition of illegal dismissal cases this Courtfound occasion in the case of 'ercur& rug Co# @nc# etal# v# C@ et al# to rule that a fied amount of back%ages%ithout further 9ualifications should be a%arded to anillegall& dismissed emplo&ee (hereinafter the 'ercur&rug rule)# This ruling %as grounded uponconsiderations of epedienc& in the eecution of thedecision#

#nder 7!8! ,o! 443 it became mandatory to a1ard

back1ages to illegally dismissed regular employees#N $nder the above9uoted provision it became mandator&to a%ard back%ages to illegall& dismissed regular emplo&ees# The la% specificall& declared that the a%ardof back%ages %as to be computed from the timecompensation %as %ithheld from the emplo&ee up to thetime of his reinstatement# This not%ithstanding the rulegenerall& applied b& the Court after the promulgation of the 'ercur& rug case and during the effectivit& of 8##

7o# ::4 %as still the 'ercur& rug rule# A surve& of cases from 1!6: until 1!=! %hen the amendator& la% to8## 7o# ::4 namel& #A# 7o# <615 took effect

supports this conclusion#

Court declared in a later case t"at t"e general principle

is t"at an employee is entitled to recei0e as back1ages

all t"e amounts "e may "a0e recei0ed from t"e date of

"is dismissal up to t"e time of "is reinstatement!= @nthe case of 7e% 'anila Cand& 2orkers $nion(7acon%a-8aflu) v C@ (1!6=) or after the *abor Code(8## 7o# ::4) had taken effect the Court still follo%edthe 'ercur& rug rule to avoid the necessit& of a hearingon earnings obtained else%here b& the emplo&ee duringthe period of illegal dismissal# @n an even later case

(1!=6) the Court declared that the general principle isthat an emplo&ee is entitled to receive as back%ages allthe amounts he ma& have received from the date of hisdismissal up to the time of his reinstatement# .o%ever incompliance %ith the /urisprudential polic& of fiing theamount of back%ages to a /ust and reasonable level thea%ard of back%ages e9uivalent to three (") &ears

%ithout 9ualification or deduction %as nonethelessfollo%ed in said case#

Any decision or order granting back1ages in e>cess of

t"ree () years is null and 0oid as to t"e e>cess#N@n amore direct approach to the rule on the a%ard of

back%ages this Court declared in the 1!!; case of 'edado v# Court of Appeals that San& decision or order-granting back%ages in ecess of three (") &ears is nulland void as to the ecess#S

Court ?ualified t"e pro0ision under 7!8! ,o! 443 by

limiting t"e a1ard of back1ages to t"ree () years! N@nsum during the effectivit& of 8## ::4 the Courtenforced the Me"c-" *"- "-le and in effect 9ualifiedthe provision under 8## 7o# ::4 b& limiting the a%ardof back%ages to three (") &ears#

:acaes to e aa"ded to a illeall disissedeploee, so-ld ot, as a ee"al "-le, e diiised

o" "ed-ced te ea"is de"ived i elsee"e

d-"i te pe"iod o0 is illeal disissal #NThe Courtdeems it appropriate ho%ever to reconsider such earlier ruling on the computation of back%ages as enunciated insaid 8ines Cit& +ducational Center case b& no% holdingthat conformabl& %ith the evident legislative intent asepressed in ep# Act 7o# <615 above-9uoted

back%ages to be a%arded to an illegall& dismissedemplo&ee should not as a general rule be diminished or reduced b& the earnings derived b& him else%here duringthe period of his illegal dismissal# The underl&ing reasonfor this ruling is that the emplo&ee %hile litigating thelegalit& (illegalit&) of his dismissal must still earn aliving to support himself and famil& %hile full

back%ages have to be paid b& the emplo&er as part of the price or penalt& he has to pa& for illegall& dismissing hisemplo&ee# The clear legislative intent of the amendmentin Rep. Act No. #715 is to give more benefits to %orkersthan %as previousl& given them under the 'ercur& rugrule or the Sdeduction of earnings else%hereS rule# Thusa closer adherence to the legislative polic& behind ep#

Act 7o# <615 points to Sfull back%agesS as meaningeactl& that i#e# %ithout deducting from back-%ages theearnings derived else%here b& the concerned emplo&eeduring the period of his illegal dismissal# @n other %ordsthe provision calling for Sfull back%agesS to illegall&dismissed emplo&ees is clear plain and free fromambiguit& and therefore must be applied %ithoutattempted or strained interpretation# &deJ aii se"o

est#

$AC%S

8rivate respondent no% moves to reconsider the decisionon grounds that (a) petitioners are not entitled to recover back%ages because the& %ere not actuall& dismissed buttheir probationar& emplo&ment %as not converted to

permanent emplo&ment3 and (b) assuming that petitioners are entitled to back%ages computationthereof should not start from cessation of %ork up toactual reinstatement and that salar& earned else%here

12



LABOR RELATIONS

(during the period of illegal dismissal) should bededucted from the a%ard of such back%ages#

There is no compelling reason to reconsider the decisionof the Court (irst ivision) dated 15 'arch 1!!<#.o%ever %e here clarif& the computation of back%ages

due an emplo&ee on account of his illegal dismissal fromemplo&ment#

Then came 8residential ecree 7o# ::4 (the *abor Codeof the 8hilippines) %hich %as signed into la% on 1 'a&1!6: and %hich took effect on 1 7ovember 1!6:# @ts

posture on the a%ard of back%ages as amended %asepressed as follo%s0

@A5! 3B! %ecurity of 5enure#>9n cases of regular

employment" the employer shall not terminate the

services of an employee e0cept for a just cause or when

authori:ed by this &itle# %n employee who is unjustlydismissed from work shall be entitled to reinstatement

without loss of seniority rights and to his back wages

computed from the time his compensation was withheld

from him up to the time of his reinstatement# (italics

supplied)#?

$nder the above9uoted provision it became mandator&to a%ard back%ages to illegall& dismissed regular emplo&ees# The la% specificall& declared that the a%ardof back%ages %as to be computed from the timecompensation %as %ithheld from the emplo&ee up to the

time of his reinstatement# This not%ithstanding the rulegenerall& applied b& the Court after the promulgation of the 'ercur& rug case11 and during the effectivit& of 8## 7o# ::4 %as still the 'ercur& rug rule# A surve&of cases from 1!6: until 1!=! %hen the amendator& la%to 8## 7o# ::4 namel& #A# 7o# <615 took effectsupports this conclusion#

&SS'

2,7 the petitioners are entitled to full back%ages

L*?S. Therefore in accordance %ith #A# 7o#

<615 petitioners are entitled to their full back%agesinclusive of allo%ances and other benefits or their monetar& e9uivalent from the time their actualcompensation %as %ithheld from them up to the time of their actual reinstatement#As to reinstatement of petitioners this Court has alread&ruled that since reinstatement is no longer feasible

because the compan& %ould be un/ustl& pre/udiced b&the continued emplo&ment of petitioners %ho at presentare overage a separation pa& e9ual to one-month salar&granted to them in the *abor ArbiterRs decision %as inorder and therefore affirmed in the CourtRs decision of 15 'arch 1!!<# urthermore since reinstatement in thiscase is no longer feasible the amount of back%ages shall

be computed from the time of their illegal termination on45 Fune 1!!; up to the time of finalit& of this decision#

R'L&NG

ACC,@7*L private respondentRs 'otion for econsideration dated 1; April 1!!< is +7@+#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEE

11) @ie"es vs. Natioal Lao" Relatios Coissio,

4 SCRA 557/ G.R. No. 1!45 Ap"il 4, 23

Lao" La &lleal *isissal Reistateet3 2ordsand 8hrases3 einstatement means restoration to a stateor condition from %hich one had been removed or separated#Neinstatement means restoration to a state or condition from %hich one had been removed or separated# @n case of probationar& emplo&ment Article4=1 of the *abor Code re9uires the emplo&er to makekno%n to his emplo&ee at the time of the latter’sengagement of the reasonable standards under %hich hema& 9ualif& as a regular emplo&ee#

Re-la" ploees3 A regular employee is one 1"o is

engaged to perform acti0ities 1"ic" are necessary or

desirable in t"e usual business or trade of t"e employer$

or a casual employee 1"o "as rendered at least one year of ser0ice$ 1"et"er continuous or broken$ 1it"

respect to t"e acti0ity in 1"ic" "e is employed!= The principle %e have enunciated in Brent applies onl& %ithrespect to fied term emplo&ments# 2hile it is true that

petitioners %ere initiall& emplo&ed on a fied term basisas their emplo&ment contracts %ere onl& for ,ctober = to"1 1!!; after ,ctober "1 1!!; the& %ere allo%ed tocontinue %orking in the same capacit& as meter readers%ithout the benefit of a ne% contract or agreement or %ithout the term of their emplo&ment being fied ane%#After ,ctober "1 1!!; the emplo&ment of petitioners isno longer on a fied term basis# The compleion of the

emplo&ment relationship of petitioners and privaterespondent is thereb& totall& changed# 8etitioners haveattained the status of regular emplo&ees# $nder Article4=; of the *abor Code a regular emplo&ee is one %ho isengaged to perform activities %hich are necessar& or desirable in the usual business or trade of the emplo&eror a casual emplo&ee %ho has rendered at least one &ear of service %hether continuous or broken %ith respect tothe activit& in %hich he is emplo&ed#

Clea"l te"e0"o, te"e a"e to sepa"ate istaces

e"e it ca e dete"ied tat a eploet is

"e-la"; (6) &he particular activity performed by the

employee is necessary or desirable in the usual businessor trade of the employer; or (5) if the employee has been performing the job for at least a year#

ith the continuation of their employment beyond the

original term" petitioners" have become full$fledged regular employees# &he fact alone" that petitioners

rendered service for a period of less than si0 months

does not make their employment status as probationary#

> .erein petitioners fall under the first categor&# The&%ere engaged to perform activities that are necessar& tothe usual business of private respondent# 2e agree %iththe labor arbiter’s pronouncement that the /ob of a meter reader is necessar& to the business of private respondent

because unless a meter reader records the electricconsumption of the subscribing public there could not bea valid basis for billing the customers of privaterespondent# &he fact that the petitioners were allowed to

continue working after the e0piration of their

employment contract is evidence of the necessit& anddesirabilit& of their service to private respondent’s

business# @n addition during the preliminar& hearing of the case on ebruar& : 1!!1 private respondent evenoffered to enter into another temporar& emplo&ment

13



LABOR RELATIONS

contract %ith petitioners# This onl& proves privaterespondent’s need for the services of herein petitioners#2ith the continuation of their emplo&ment be&ond theoriginal term petitioners have become full-fledgedregular emplo&ees# The fact alone that petitioners haverendered service for a period of less than si months doesnot make their emplo&ment status as probationar&#

%ince petitioners are already regular employees at t"e

time of t"eir illegal dismissal from employment$ t"ey

are entitled to be reinstated to t"eir former position as

regular employees$ not merely probationary#

An illegally dismissed employee is entitled to full

back1ages$ inclusi0e of allo1ances$ and to "is ot"er

benefits or t"eir monetary e?ui0alent computed from

t"e time "is compensation 1as 1it""eld from "im up to

t"e time of "is actual reinstatement! NAs to the secondissue Article 46! of the *abor Code as amended b&#A# 7o# <615 %hich took effect on 'arch 41 1!=!

provides that an illegall& dismissed emplo&ee is entitledto full back%ages inclusive of allo%ances and to hisother benefits or their monetar& e9uivalent computedfrom the time his compensation %as %ithheld from himup to the time of his actual reinstatement# ince

petitioners %ere emplo&ed on ,ctober = 1!!; theamended provisions of Article 46! of the *abor Codeshall appl& to the present case# .ence it %as patentl&erroneous tantamount to grave abuse of discretion on the

part of the public respondent in limiting to one &ear the back%ages a%arded to petitioners#

An employer becomes liable to pay indemnity

to an employee 1"o "as been dismissed if$ in effecting suc" dismissal$ t"e employer fails or comply 1it" t"e

re?uirements of due process#N2ith respect to the thirdissue an emplo&er becomes liable to pa& indemnit& to anemplo&ee %ho has been dismissed if in effecting suchdismissal the emplo&er fails to compl& %ith there9uirements of due process# The indemnit& is in theform of nominal damages intended not to penali?e theemplo&er but to vindicate or recogni?e the emplo&ee’sright to procedural due process %hich %as violated b&the emplo&er# $nder Article 4441 of the Civil Codenominal damages are ad/udicated in order that a right of the plaintiff %hich has been violated or invaded b& the

defendant ma& be vindicated or recogni?ed and not for the purpose of indemnif&ing the plaintiff for an& losssuffered b& him#

2ack1ages are granted on grounds of e?uity to 1orkers

for earnings lost due to t"eir illegal dismissal from

1ork! +n t"e ot"er "and$ t"e a1ard of indemnity is

meant to 0indicate or recognie t"e rig"t of an

employee to due process 1"ic" "as been 0iolated by t"e

em-ployer!= 2e do not agree %ith the ruling of the 7*C that indemnit& is incompatible %ith the a%ard of back%ages# These t%o a%ards are based on differentconsiderations# Back%ages are granted on grounds of e9uit& to %orkers for earnings lost due to their illegaldismissal from %ork# ,n the other hand the a%ard of indemnit& as %e have earlier held is meant to vindicateor recogni?e the right of an emplo&ee to due process%hich has been violated b& the emplo&er#

*n effecting t"e dismissal of petitioners from t"eir

employment$ pri0ate respondent failed to comply 1it"

t"e pro0isions of Article 3 of t"e abor Code 1"ic"

re?uires an employer to ser0e a notice of dismissal

upon t"e employees soug"t to be terminated and to t"e

8epartment of abor$ at least one mont" before t"e

intended date of termination!= @n the present case the private respondent in effecting the dismissal of petitioners from their emplo&ment failed to compl& %iththe provisions of Article 4=" of the *abor Code %hichre9uires an emplo&er to serve a notice of dismissal uponthe emplo&ees sought to be terminated and to theepartment of *abor at least one month before theintended date of termination# 8etitioners %ere servednotice on Fanuar& " 1!!1 terminating their serviceseffective ecember 4! 1!!; or retroactivel& incontravention of Article 4="# This renders the privaterespondent liable to pa& indemnit& to petitioners#

ule D*** of t"e ,e1 ules of 7rocedure of t"e ,C

pro0ides t"at s"ould t"ere be a motion for

reconsideration entertained pursuant to %ection &4$

ule D** of t"ese ules$ t"e decision s"all be e>ecuted

after ten calendar days from receipt of t"e resolution

on suc" motion!= As to the last issue Article 44" of the

*abor Code is plain and clear that the decision of the 7*C shall be final and eecutor& after ten (1;)calendar da&s from receipt thereof b& the parties# @naddition ection 4(b) ule @@@ of the 7e% ules of 8rocedure of the 7*C provides that Gshould there be amotion for reconsideration entertained pursuant toection 1: ule @@ of these ules the decision shall beeecutor& after ten calendar da&s from receipt of theresolution on such motion#H

%ince t"e ules allo1 t"e filing of a motion for

reconsideration of a decision of t"e ,C$ it simply

follo1s t"at t"e ten-day period pro0ided under Article

33 of t"e abor Code s"ould be reckoned from t"edate of receipt by t"e parties of t"e resolution on suc"

motion! N2e find nothing inconsistent or contradictor& bet%een Article 44" of the *abor Code and ection 4(b)ule @@@ of the 7*C ules of 8rocedure# Theaforecited provision of the 7*C ules of 8roceduremerel& provides for situations %here a motion for reconsideration is filed# ince the ules allo% the filingof a motion for reconsideration of a decision of the

7*C it simpl& follo%s that the ten-da& period providedunder Article 44" of the *abor Code should be reckonedfrom the date of receipt b& the parties of the resolutionon such motion# @n the case at bar petitioners received

the resolution of the 7*C den&ing their motion for reconsideration on ,ctober 44 1!!4# .ence it is on 7ovember 4 1!!4 that the 9uestioned decision becameeecutor&#

$AC%S

ifteen (15) in all these are consolidated casesfor illegal dismissal underpa&ment of %ages and claimfor indemnit& pa& against a common respondent the:e-et lect"ic Coope"ative, &c., (:NC+ for short) represented b& its Acting eneral 'anagererardo 8# erso?a# Complainants’ services as meter readers %ere contracted for hardl& a month’s duration or from ,ctober = to "1 1!!;#The said term not%ithstanding the complainants %ereallo%ed to %ork be&ond ,ctober "1 1!!; or untilFanuar& 4 1!!1# ,n Fanuar& " 1!!1 the& %ere eachserved their identical notices of termination datedecember 4! 1!!;#

,n the same date the complainants filed separatecomplaints for illegal dismissal# And follo%ing theamendment of said complaints the& submitted their /oint

14



LABOR RELATIONS

position paper on April : 1!!1# espondent filed its position paper on April 4 1!!1#@t is the contention of the complainants that the& %erenot apprentices but regular emplo&ees %hose services%ere illegall& and un/ustl& terminated in a manner that%as %himsical and capricious# ,n the other hand therespondent invokes Article 4=" of the *abor Code indefense of the 9uestioned dismissal#

,n ,ctober 1= 1!!1 the *abor Arbiter rendered adecision dismissing the complaints for illegal dismissalfiled b& the complainants for lack of merit# ,n Ful& 41!!4 the 7*C modified labor arbiter’s /udgment#

&SS'S

1# 2hether the respondent 7*C committed grave abuseof discretion in ordering the reinstatement of petitionersto their former position as meter readers on probationar&status in spite of its finding that the& are regular

emplo&ees under Article 4=; of the *abor Code3

4# 2hether the respondent 7*C committed grave abuseof discretion in limiting the back%ages of petitioners toone &ear onl& in spite of its finding that the& %ereillegall& dismissed %hich is contrar& to the mandate of full back%ages until actual reinstatement but not toeceed three &ears3

L*

1) The upreme Court ruled to sustain petitioners’ claim that the& should be reinstated to their

former position as meter readers not on a probationar&status but as regular emplo&ees# einstatement meansrestoration to a state or condition from %hich one had

been removed or separated# @n case of probationar&emplo&ment Article 4=1 of the *abor Code re9uires theemplo&er to make kno%n to his emplo&ee at the time of the latter’s engagement of the reasonable standards under %hich he ma& 9ualif& as a regular emplo&ee#

The principle %e have enunciated in Brent applies onl&%ith respect to 0iJed te" eploets# 2hile it is truethat petitioners %ere initiall& emplo&ed on a fied term

basis as their emplo&ment contracts %ere onl& for

,ctober = to "1 1!!; after ,ctober "1 1!!; the& %ereallo%ed to continue %orking in the same capacit& asmeter readers %ithout the benefit of a ne% contract or agreement or %ithout the term of their emplo&ment beingfied ane%# After ,ctober "1 1!!; the emplo&ment of

petitioners is no longer on a fied term basis# Thecompleion of the emplo&ment relationship of

petitioners and private respondent is thereb& totall&changed# >etitioe"s ave attaied te stat-s o0

"e-la" eploees.

Clearl& therefrom there are t%o separate instances%hereb& it can be determined that an emplo&ment isregular0 (1) The particular activit& performed b& theemplo&ee is necessar& or desirable in the usual businessor trade of the emplo&er3 or (4) if the emplo&ee has been

performing the /ob for at least a &ear#

The Court agreed %ith the labor arbiter’s pronouncementthat the /ob of a meter reader is necessar& to the businessof private respondent because unless a meter reader records the electric consumption of the subscribing

public there could not be a valid basis for billing thecustomers of private respondent# The fact that the

petitioners %ere allo%ed to continue %orking after theepiration of their emplo&ment contract is evidence of the necessit& and desirabilit& of their service to privaterespondent’s business3

2) As to the second issue Article 46! of the*abor Code as amended b& #A# 7o# <615 %hich took effect on 'arch 41 1!=! provides that an illegall&dismissed emplo&ee is entitled to full back%agesinclusive of allo%ances and to his other benefits or their monetar& e9uivalent computed from the time hiscompensation %as %ithheld from him up to the time of his actual reinstatement# ince petitioners %ere emplo&edon ,ctober = 1!!; the amended provisions of Article46! of the *abor Code shall appl& to the present case#.ence it %as patentl& erroneous tantamount to graveabuse of discretion on the part of the public respondentin limiting to one &ear the back%ages a%arded to

petitioners#

@n the present case the private respondent in effectingthe dismissal of petitioners from their emplo&mentfailed to compl& %ith the provisions of Article 4=" of the *abor Code %hich re9uires an emplo&er to serve anotice of dismissal upon the emplo&ees sought to beterminated and to the epartment of *abor at least onemonth before the intended date of termination#8etitioners %ere served notice on Fanuar& " 1!!1terminating their services effective ecember 4! 1!!;or retroactivel& in contravention of Article 4="# Thisrenders the private respondent liable to pa& indemnit& to

petitioners#

R'L&NG The petition is partiall& A7T+# Thedecision of the 7ational *abor elations Commissiondated Ful& 4 1!!4 is ',@@+# 8rivate respondentBenguet +lectric Cooperative @nc# (B+7+C,) is hereb&ordered to reinstate petitioners to their former or substantiall& e9uivalent position as regular emplo&ees%ithout loss of seniorit& rights and other privilegesappurtenant thereto %ith full back%ages from the timeof their dismissal until the& are actuall& reinstated# Theamount of 845!;#5; a%arded b& the labor arbiter asindemnit& to petitioners is +@7TAT+# 8rivaterespondent is also ordered to pa& attorne&’s fees in the

amount often percent (1;I) of the total monetar& a%arddue to the petitioners# @n all other respects the assaileddecision and resolution are A@'+#


12) Roell &d-st"ial Co"po"atio vs. Co-"t o0

Appeals, 517 SCRA #91/ G.R. No. 1#7714. Ma"c 7,

27

Lao" La ploe"6ploee Relatiosip3 Article 3' of t"e abor Code as amended classifiesemplo&ees into three categories namel& (1) "e-la"

eploees, (2) p"oEect eploees, ad (3) cas-al

eploees Re-la" eploees a"e classi0ied ito (a)

"e-la" eploees at-"e o0 o", ad, () "e-la"

eploees ea"s o0 se"vice#NArticle 4=; of the*abor Code as amended classifies emplo&ees into threecategories namel&0 (1) regular emplo&ees or those%hose %ork is necessar& or desirable to the usual

business of the emplo&er3 (4) pro/ect emplo&ees or those%hose emplo&ment has been fied for a specific pro/ector undertaking the completion or termination of %hichhas been determined at the time of the engagement of theemplo&ee or %here the %ork or services to be performed

15



LABOR RELATIONS

is seasonal in nature and the emplo&ment is for theduration of the season3 and (") casual emplo&ees or those%ho are neither regular nor pro/ect emplo&ees# egular emplo&ees are further classified into0 (1) regular emplo&ees b& nature of %ork3 and (4) regular emplo&ees

b& &ears of service# The former refers to those emplo&ees%ho perform a particular activit& %hich is necessar& or desirable in the usual business or trade of the emplo&erregardless of their length of service3 %hile the latter refers to those emplo&ees %ho have been performing the

/ob regardless of the nature thereof for at least a &ear#

Fi>ed-5erm Employment; Article 3' of t"e abor

Code does not proscribe or pro"ibit an employment

contract 1it" a fi>ed period!= Article 4=; of the *abor Code as amended ho%ever does not proscribe or

prohibit an emplo&ment contract %ith a fied period# @tdoes not necessaril& follo% that %here the duties of theemplo&ee consist of activities usuall& necessar& or desirable in the usual business of the emplo&er the

parties are forbidden from agreeing on a period of timefor the performance of such activities# There is nothingessentiall& contradictor& bet%een a definite period of emplo&ment and the nature of the emplo&ee’s duties#2hat Article 4=; of the *abor Code as amended seeksto prevent is the practice of some unscrupulous andcovetous emplo&ers %ho %ish to circumvent the la% that

protects lo%l& %orkers from capricious dismissal fromtheir emplo&ment# The aforesaid provision ho%evershould not be interpreted in such a %a& as to depriveemplo&ers of the right and prerogative to choose their o%n %orkers if the& have sufficient basis to refuse anemplo&ee a regular status# 'anagement has rights %hich

should also be protected#

G-idelies. Although Article 4=; of the *abor Codeas amended does not forbid fied term emplo&ment itmust nevertheless meet an& of the follo%ing guidelinesin order that it cannot be said to circumvent securit& of tenure0 (1) that the fied period of emplo&ment %askno%ingl& and voluntaril& agreed upon b& the parties%ithout an& force duress or improper pressure being

brought to bear upon the emplo&ee and absent an& other circumstances vitiating his consent3 or (4) it satisfactoril&appears that the emplo&er and emplo&ee dealt %ith eachother on more or less e9ual terms %ith no moral

dominance %hatever being eercised b& the former onthe latter#

Cot"acts o0 Adesio3 2ords and 8hrases3 A contractin %hich the terms prepared b& onl& one part& and theother part& merel& affies his signature signif&ing hisadhesion thereto is called contract of adhesion anagreement in %hich the parties bargaining are not one9ual footing the %eaker part&’s participation beingreduced to the alternative Gto take it or leave it#HN 8etitioner @C failed to controvert the claim of respondent Taripe that he %as made to sign the contractof emplo&ment prepared b& petitioner @C as acondition for his hiring# uch contract in %hich the termsare prepared b& onl& one part& and the other part&merel& affies his signature signif&ing his adhesionthereto is called contract of adhesion# @t is an agreementin %hich the parties bargaining are not on e9ual footingthe %eaker part&’s participation being reduced to thealternative Gto take it or leave it#H @n the present caserespondent Taripe in need of a /ob %as compelled toagree to the contract including the five-month period of emplo&ment /ust so he could be hired# .ence it cannot

be argued that respondent Taripe signed the emplo&ment

contract %ith a fied term of five months %illingl& and%ith full kno%ledge of the impact thereof#

egular Employees; 5"e primary standard of

determining regular employment is t"e reasonable

connection bet1een t"e particular acti0ity performed by

t"e employee in relation to t"e casual business or trade

of t"e employer!= ettled is the rule that the primar&standard of determining regular emplo&ment is thereasonable connection bet%een the particular activit&

performed b& the emplo&ee in relation to the casual business or trade of the emplo&er# The connection can bedetermined b& considering the nature of the %ork

performed and its relation to the scheme of the particular business or trade in its entiret&#

egular employees en:oy security of tenure and t"ey

can only be dismissed for :ust cause and 1it" due

process$ notice and "earing!= 2ell-established is therule that regular emplo&ees en/o& securit& of tenure andthe& can onl& be dismissed for /ust cause and %ith due

process notice and hearing# And in case of emplo&ees’dismissal the burden is on the emplo&er to prove that thedismissal %as legal# Thus respondent Taripe’s summar&dismissal not being based on an& of the /ust or authori?ed causes enumerated under Articles 4=4 4="and 4=: of the *abor Code as amended is illegal#

$AC%S

8etitioner @C is a corporation engaged inmanufacturing tin cans for use in packaging of consumer

products e#g# foods paints among other things#espondent Taripe %as emplo&ed b& petitioner @C on =

7ovember 1!!! as a Grectangular po%er press machine

operatorH %ith a salar& of 844"#5; per da& until he %asallegedl& dismissed from his emplo&ment b& the petitioner on < April 4;;;#

G,n 16 ebruar& 4;;;U herein respondent TaripeU fileda CUomplaint against herein petitioner @CU for regulari?ation and pa&ment of holida& pa& as %ell asindemnit& for severed finger %hich %as amended on 6April 4;;;U to include illegal dismissal#

espondent TaripeU alleges that petitioner @CUemplo&ed him starting = 7ovember 1!!!U as po%er

press machine operator such position of %hich %as

occupied b& petitioner @C’sU regular emplo&ees and thefunctions of %hich %ere necessar& to the latter’s business# espondent TaripeU adds that uponemplo&ment he %as made to sign a document %hich%as not eplained to him but %hich %as made acondition for him to be taken in and for %hich he %as notfurnished a cop&# espondent TaripeU states that he %asnot etended full benefits granted under the la% and theCollective Bargaining AgreementU and that on < April4;;;U %hile the case for regulari?ation %as pending he%as summaril& dismissed from his /ob although he never violated an& of the petitioner @C’sU compan& rules andregulations#8etitioner @CU for itsU part claimsU that respondentTaripeU %as a contractual emplo&ee %hose services %erere9uired due to the increase in the demand in packagingre9uirement of itsU clients for Christmas season and to

build up stock levels during the earl& part of thefollo%ing &ear3 that on < 'arch 4;;;U respondentTaripe’sU emplo&ment contract epired# 8etitioner @CUavers that the information update for union members%hich %as allegedl& filled up b& respondent TaripeU andsubmitted b& the $nion to petitionerU compan& it isstated therein that in the si (<) companies %here

16



LABOR RELATIONS

respondent TaripeU purportedl& %orked the latter’sreason for leaving %as Gfinished contractH hencerespondent TaripeU has kno%ledge about beingemplo&ed b& contract contrar& to his allegation that thedocument he %as signing %as not eplained to him#8etitioner @CU manifestsU that all benefits includingthose under the ocial ecurit& &stemU %ere given tohim on 14 'a& 4;;;U#H,n 4! eptember 4;;; the *abor Arbiter rendered aecision dismissing respondent Taripe’s Complaint

based on a finding that he %as a contractual emplo&ee%hose contract merel& epired# .o%ever the 7*Cgranted the appeal filed b& respondent Taripe anddeclared that his emplo&ment %ith the petitioner %asregular in status3 hence his dismissal %as illegal#8etitioner @C moved for the reconsideration of theaforesaid esolution but it %as denied in the esolutionof the 7*C dated 4; August 4;;4#

8etitioner filed a 8etition for Certiorari under ule <5 of

the 1!!6 evised ules of Civil 8rocedure before theCourt of Appeals

Article 4=; of the *abor Code as amended provides0GAR%. 2!. RG'LAR AN* CAS'AL

M>L+?MN%#NThe provisions of %rittenagreement to the contrar& not%ithstanding and regardlessof the oral agreement of the parties an emplo&ment shall

be deemed to be regular %here the emplo&ee has beenengaged to perform activities %hich are usuall&necessar& or desirable in the usual business or trade of the emplo&er ecept %here the emplo&ment has beenfied for a specific pro/ect or undertaking the completion

or termination of %hich has been determined at the timeof the engagement of the emplo&ee or %here the %ork or services to be performed is seasonal in nature and theemplo&ment is for the duration of the season#An emplo&ment shall be deemed to be casual if it is notcovered b& the preceding paragraph0 8rovided That an&emplo&ee %ho has rendered at least one &ear of service%hether such service is continuous or broken shall beconsidered a regular emplo&ee %ith respect to theactivit& in %hich he is emplo&ed and his emplo&mentshall continue %hile such activit& eists#H

@n the case at bar respondent Taripe signed a contract of

emplo&ment prior to his admission into the petitioner’scompan&# aid contract of emplo&ment provides amongother things0

GThat m& emplo&ment shall be contractual for the period of five (5) months %hich means that the end of the said period @ can (sic) discharged unless this contractis rene%ed b& mutual consent or terminated for cause#HBased on the said contract respondent Taripe’semplo&ment %ith the petitioner is good onl& for a periodof five months unless the said contract is rene%ed b&mutual consent# And as claimed b& petitioner @Crespondent Taripe along %ith its other contractualemplo&ees %as hired onl& to meet the increase indemand for packaging materials during the Christmasseason and also to build up stock levels during the earl&

part of the &ear#uch contract in %hich the terms are prepared b& onl&one part& and the other part& merel& affies his signaturesignif&ing his adhesion thereto is called cot"act o0

adesio

&SS'

2hether the Court of Appeals misinterpretedA"ticle 2! o0 te Lao" Code as amended andignored /urisprudence %hen it affirmed that respondentTaripe %as a regular emplo&ee and %as illegall&dismissed

L*

N+. espondent Taripe does not fall under theeceptions mentioned in Article 4=; of the *abor Codeas amended because it %as not proven b& petitioner @Cthat he %as emplo&ed onl& for a specific pro/ect or undertaking or his emplo&ment %as merel& seasonal#imilarl& the position and function of po%er pressoperator cannot be said to be merel& seasonal# uch

position cannot be considered as onl& needed for aspecific pro/ect or undertaking because of the ver& natureof the business of petitioner @C# @ndeed respondentTaripe is a regular emplo&ee of petitioner @C and assuch he cannot be dismissed from his emplo&mentunless there is /ust or authori?ed cause for his dismissal#

The aforesaid A"ticle 2! o0 te Lao" Code asamended classifies emplo&ees into three categoriesnamel&0 (1) regular employees or t"ose 1"ose 1ork is

necessary or desirable to t"e usual business of t"e

employer; (4) pro:ect employees or t"ose 1"ose

employment "as been fi>ed for a specific pro:ect or

undertaking$ t"e completion or termination of 1"ic"

"as been determined at t"e time of t"e engagement of

t"e employee or 1"ere t"e 1ork or ser0ices to be

performed is seasonal in nature and t"e employment is

for t"e duration of t"e season3 and (") casual

employees or t"ose 1"o are neit"er regular nor pro:ect

employees

R'L&NG

8remises considered the instant 8etition ishereb& +7@+# The ecision and esolution of theCourt of Appeals dated "; eptember 4;;: and 1 April4;;5 respectivel& %hich affirmed %ith modification theesolutions of the 7*C dated 6 Fune 4;;4 and 4;August 4;;4 respectivel& finding herein respondentTaripe as a regular emplo&ee %ho had been illegall&dismissed from emplo&ment b& petitioner @C arehereb& A@'+# Costs against petitioner @C#

EEEEEEEEEEEEEEEEEEEEEEEEEEEE

13) Lao vs. Natioal Lao" Relatios Coissio,317 SCRA 42/ G.R. No. 11142. +ctoe" 2#, 1999

Cop-tatio Lao" A"ite" (a00i"ed

S-p"ee Co-"t); "ecove" o0 ove"tie pa,

olida pa, p"ei- pa o olida ad "est

da, se"vice icetive leave pa, sepa"atio pa,

13t ot pa, ad atto"eKs 0ees.

Lao" La ploe"6ploee Relatiosip Thereare t%o categories of emplo&ees paid b& resultsN(&)

t"ose 1"ose time and performance are super0ised by

t"e employer$ and$ (3) t"ose 1"ose time and

performance are unsuper0ised! NThere is no disputethat petitioners %ere emplo&ees of private respondentsalthough the& %ere paid not on the basis of time spent onthe /ob but according to the 9uantit& and the 9ualit& of %ork produced b& them# There are t1o categories of

employees paid by results0 (1) tose ose tie ad

pe"0o"ace a"e s-pe"vised te eploe"# (.eret"ere is an element of control and super0ision o0er t"e

manner as to "o1 t"e 1ork is to be performed # A piece$

rate worker belongs to this category especially if he

17



LABOR RELATIONS

performs his work in the company premises#)3 and (4)tose ose tie ad pe"0o"ace a"e -s-pe"vised.

(e"e, te eploe"Ks cot"ol is ove" te "es-lt o0 te

o". 2orkers on pak&ao and taka& basis belong to thisgroup#) Both classes of %orkers are paid per unitaccomplished# 8iece-rate pa&ment is generall& practicedin garment factories %here %ork is done in the compan&

premises %hile pa&ment on pak&ao and taka& basis iscommonl& observed in the agricultural industr& such asin sugar plantations %here the %ork is performed in bulk or in volumes difficult to 9uantif&# >etitioe"s elo to

te 0i"st cateo", i.e., s-pe"vised eploees.

leets Cot"ol %est. @n determining the eistenceof an emplo&er-emplo&ee relationship the follo%ingelements must be considered0 (1) the selection andengagement of the emplo&ee3 (4) the pa&ment of %ages3(") the po%er of dismissal3 and (:) the po%er to controlthe emplo&ee’s conduct# ,f these elements the mostimportant criterion is %hether the emplo&er controls or

has reserved the right to control the emplo&ee not onl& asto the result of the %ork but also as to the means andmethods b& %hich the result is to be accomplished#

<aes <o"ds ad >"ases The term BaeD is broadl& defined in Article !6 of the *abor Code asremuneration or earnings capable of being epressed interms of mone& %hether fied or ascertained on a timetask piece or commission basis3 8a&ment b& the piece is

/ust a method of compensation and does not define theessence of the relationship#N@n this case privaterespondents eercised control over the %ork of

petitioners# As tailors petitioners %orked in the

compan&’s premises from =0;; a#m# to 60;; p#m# dail&including unda&s and holida&s# The mere fact that the&%ere paid on a piece-rate basis does not negate their status as regular emplo&ees of private respondents# Theterm G%ageH is broadl& defined in Art# !6 of the *abor Code as remuneration or earnings capable of beingepressed in terms of mone& %hether fied or ascertained on a time task piece or commission basis#8a&ment b& the piece is /ust a method of compensationand does not define the essence of the relations# 7or doesthe fact that petitioners are not covered b& the affectthe emplo&er-emplo&ee relationship#

&lleal *isissal Aadoet3 To /ustif& a finding of abandonment of %ork there must be proof of adeliberate and un/ustified refusal on the part of anemplo&ee to resume his emplo&ment#NTo /ustif& afinding of abandonment of %ork there must be proof of a deliberate and un/ustified refusal on the part of anemplo&ee to resume his emplo&ment# The burden of

proof is on the emplo&er to sho% an une9uivocal intenton the part of the emplo&ee to discontinue emplo&ment#'ere absence is not sufficient# @t must be accompanied

b& manifest acts unerringl& pointing to the fact that theemplo&ee simpl& does not %ant to %ork an&more#

Aadoet is a atte" o0 itetio Nit cannot beinferred or presumed from e9uivocal acts#N8rivaterespondents failed to discharge this burden# ,ther thanthe self-serving declarations in the affidavits of their t%oemplo&ees private respondents did not adduce proof of overt acts of petitioners sho%ing their intention toabandon their %ork# ,n the contrar& the evidence sho%sthat petitioners lost no time in filing the case for illegaldismissal against private respondent# This fact negatesan& intention on their part to sever their emplo&ment

relationship# Abandonment is a matter of intention3 itcannot be inferred or presumed from e9uivocal acts#

-itclais ad Releases 7ot all 9uitclaims are per seinvalid or against public polic& but those (1) %here thereis clear proof that the %aiver %as %angled from anunsuspecting or gullible person or (4) %here the terms of settlement are unconscionable on their face are invalid#

NTo be sure not all 9uitclaims are per se invalid or against public polic&# But those (1) %here there is clear

proof that the %aiver %as %angled from an unsuspectingor gullible person or (4) %here the terms of settlementare unconscionable on their face are invalid# @n thesecases the la% %ill step in to annul the 9uestionabletransaction# .o%ever considering that the *abor Arbiter had given petitioner *ambo a total a%ard of 8!:61!#4;the amount of 81;;;;#;; to cover an& and all monetar&claims is clearl& unconscionable#

An emplo&ee %ho is merel& constrained to accept the

%ages paid to him is not precluded from recovering thedifference bet%een the amount he actuall& received andthat amount %hich he should have received#NAs %ehave held in another case the subordinate position of theindividual emplo&ee vis-a-vis management renders himspeciall& vulnerable to its blandishments importuningsand even intimidations and results in his improvidentl&%aiving benefits to %hich he is clearl& entitled# Thus9uitclaims %aivers or releases are looked upon %ithdisfavor for being contrar& to public polic& and areineffective to bar claims for the full measure of the%orkers’ legal rights# An emplo&ee %ho is merel&constrained to accept the %ages paid to him is not

precluded from recovering the difference bet%een theamount he actuall& received and that amount %hich heshould have received#

&lleal *isissals :acaes3 2here the emplo&ees%ere dismissed from the service prior to 'arch 41 1!=!the 'ercur& rug rule applies according to %hich therecover& of back%ages should be limited to three &ears%ithout 9ualifications or deductions#NAs petitioners%ere illegall& dismissed the& are entitled toreinstatement %ith back%ages# Considering that

petitioners %ere dismissed from the service on Fanuar&16 1!=! i#e# prior to 'arch 41 1!=! the *abor Arbiter

correctl& applied the rule in the 'ercur& rug caseaccording to %hich the recover& of back%ages should belimited to three &ears %ithout 9ualifications or deductions# An& a%ard in ecess of three &ears is nulland void as to the ecess#

Sepa"atio >a here considerable time has lapsed

since the employees4 dismissal" so that reinstatement

would now be impractical and hardly in the best interest

of the parties" separation pay may be awarded in lieu of reinstatement#> The *abor Arbiter correctl& ordered

private respondents to give separation pa&# Considerabletime has lapsed since petitioners’ dismissal so thatreinstatement %ould no% be impractical and hardl& inthe best interest of the parties# @n lieu of reinstatementseparation pa& should be a%arded to petitioners at therate of one month salar& for ever& &ear of service %ith afraction of at least si (<) months of service beingconsidered as one (1) &ear#

$AC%S

8etitioners Avelino *ambo and icenteBelocura %ere emplo&ed as tailors b& privaterespondents F#C# Tailor hop andDor Fohnn& Co on

18



LABOR RELATIONS

eptember 1; 1!=5 and 'arch " 1!=5 respectivel&#The& %orked from =0;; a#m# to 60;; p#m# dail&including unda&s and holida&s# As in the case of theother 1;; emplo&ees of private respondents petitioners%ere paid on a piece-%ork basis according to the st&le of suits the& made# egardless of the number of pieces the&finished in a da& the& %ere each given a dail& pa& of atleast 8<:#;;#,n Fanuar& 16 1!=! petitioners filed a complaint

against private respondents for illegal dismissal andsought recovery of overtime pay" holiday pay" premium

pay on holiday and rest day" service incentive leave pay" separation pay" 68th month pay" and attorney4s fees#After hearing *abor Arbiter Fose # utierre? found

private respondents guilt& of illegal dismissal andaccordingl& ordered them to pa& petitioners’ claims#

,n appeal b& private respondents te NLRC "eve"sed

te decisio o0 te Lao" A"ite"# @t found that petitioners had not been dismissed from emplo&ment but

merel& threatened %ith a closure of the business if the&insisted on their demand for a Gstraight pa&ment of their minimum %ageH after petitioners on Fanuar& 16 1!=!%alked out of a meeting %ith private respondents andother emplo&ees# The NLRC held petitioners guilt& of abandonment of %ork and accordingl& dismissed their claims e0cept that for 68th month pay#

8etitioners allege that the& %ere dismissed b& privaterespondents as the& %ere about to file a petition %ith theepartment of *abor and +mplo&ment (,*+) for the

pa&ment of benefits such as ocial ecurit& &stem() coverage sick leave and vacation leave# The&

den& that the& abandoned their %ork#

To /ustif& a finding of aadoet o0 o" theremust be proof of a deliberate and un/ustified refusal onthe part of an emplo&ee to resume his emplo&ment# The

burden of proof is on the emplo&er to sho% anune9uivocal intent on the part of the emplo&ee todiscontinue emplo&ment# 'ere absence is not sufficient#@t must be accompanied b& manifest acts unerringl&

pointing to the fact that the emplo&ee simpl& does not%ant to %ork an&more#

&SS' 2,7 petitioners (emplo&ees) are toreinstatement %ith back%ages

L*

?S. As petitioners %ere illegall& dismissedthe& are entitled to reinstatement %ith back%ages#Considering that petitioners %ere dismissed from theservice on Fanuar& 16 1!=! i#e# prior to 'arch 411!=!1= the *abor Arbiter correctl& applied the rule inthe 'ercur& rug case1! according to %hich therecover& of back%ages should be limited to three &ears%ithout 9ualifications or deductions# An& a%ard inecess of three &ears is null and void as to the ecess#4;The *abor Arbiter correctl& ordered private respondentsto give separation pa&# Considerable time has lapsedsince petitioners’ dismissal so that reinstatement %ouldno% be impractical and hardl& in the best interest of the

parties# @n lieu of reinstatement separation pa& should bea%arded to petitioners at the rate of one month salar& for ever& &ear of service %ith a fraction of at least si (<)months of service being considered as one (1) &ear#

The follo%ing factors sho% that petitioners althoughpiece6"ate o"e"s e"e "e-la" eploees o0 p"ivate

"espodets0 (1) within the contemplation of %rt# 573 of

the 'abor Code" their work as tailors was necessary or desirable in the usual business of private respondents"

which is engaged in the tailoring business3 (4) petitioners worked for private respondents throughout

the year" their employment not being dependent on a specific project or season; and" (") petitioners worked

for private respondents for more than one year#

R'L&NG

The decision of the 7ational *abor elationsCommission is +T A@+ and another one is+7++ ordering private respondents to pa&

petitioners the total amount of ,ne .undred +ight&-,neThousand ,ne .undred T%o 8esos and :;D1;;(81=11;4#:;) as computed above#


14) Sa Mi-el Co"po"atio vs. NLRC, %i"d

*ivisio, 297 SCRA 277/ G.R. No. 125## +ctoe" 7,

199!

>R+8C% M>L+?MN%

Lao" La Classi0icatio o0 ploet Re-la",

>"oEect ad Seasoal ploet, *isti-ised.

$nder Article 4=; of the *abor Code an emplo&ment isdeemed regular %hen the activities performed b& theemplo&ee are usuall& necessar& or desirable in the usual

business or trade of the emplo&er even if the parties enter

into an agreement stating other%ise# But considered notregular under said Article are (1 ) t"e so-called pro:ect

employment< t"e termination of 1"ic" is more or less

determinable at t"e time of employment$ suc" as t"ose

connected 1it" a particular construction pro:ect 3 and(4) seasonal emplo&ment %hich b& its nature is onl& for one season of the &ear and the emplo&ment is limited for the duration of that season such as the Christmas holida&season# 7evertheless an eception to this eception ismade0 an& emplo&ee %ho has rendered at least one (1)&ear of service %hether continuous or intermittent %ithrespect to the activit& he performed and %hile suchactivit& actuall& eists must be deemed regular#

2hether one is emplo&ed as a pro/ect emplo&eeor not %ould depend on %hether he %as hired to carr&out a Gspecific pro/ect or undertakingH the duration andscope of %hich %ere specified at the time his services%ere engaged for that particular pro/ect#Nollo%ingArticle 4=; %hether one is emplo&ed as a pro/ectemplo&ee or not %ould depend on %hether he %as hiredto carr& out a Gspecific pro/ect or undertakingH theduration and scope of %hich %ere specified at the timehis services %ere engaged for that particular pro/ect#Another factor that ma& be considered is the reasonableconnection bet%een the particular activit& undertaken b&the emplo&ee in relation to the usual trade or business of the emplo&er3 if %ithout specif&ing the duration andscope the %ork to be undertaken is usuall& necessar& or desirable in the usual business or trade of the emplo&erthen it is regular emplo&ment and not /ust Gpro/ectHmuch less GcasualH emplo&ment#

5"e nature of one6s employment depends on

t"e nature of t"e acti0ities to be performed by t"e

employee$ considering t"e employer6s nature of

19



LABOR RELATIONS

business and t"e duration and scope of t"e 1ork to be

done#NThe nature of one’s emplo&ment does not dependon the %ill or %ord of the emplo&er# 7or on the

procedure of hiring and the manner of designating theemplo&ee but on the nature of the activities to be

performed b& the emplo&ee considering the emplo&er’snature of business and the duration and scope of the%ork to be done#

$AC%S

The facts on record sho% that in 7ovember 1!!; private respondent %as hired b& petitioner ashelperDbrickla&er for a specific pro/ect the repair andupgrading of furnace C at its 'anila lass 8lant# .iscontract of emplo&ment provided that said temporar&emplo&ment %as for a specific period of approimatel&four (:) months#,n April "; 1!!1 private respondent %as able tocomplete the repair and upgrading of furnace C# Thushis services %ere terminated on that same da& as there

%as no more %ork to be done# .is emplo&ment contractalso ended that da&#,n 'a& 1; 1!!1 private respondent %as again hired for a specific /ob or undertaking %hich involved thedrainingDcooling do%n of furnace and the emergenc&repair of furnace +# This pro/ect %as for a specific periodof approimatel& three (") months#After the completion of this task namel& thedrainingDcooling do%n of furnace and the emergenc&repair of furnace + at the end of Ful& 1!!1 privaterespondent’s services %ere terminated#,n August 1 1!!1 complainant sa% his name in a'emorandum posted at the Compan&’s Bulletin Board as

among those %ho %ere considered dismissed#,n August 14 1!!: or a0te" te lapse o0 o"e ta

t"ee (3) ea"s from the completion of the lastundertaking for %hich private respondent %as hired

private respondent filed a complaint for illegal dismissalagainst petitioner#

+ 8-e 3, 1995, Lao" A"ite" $elipe Ga"d--e

"ede"ed te decisio disissi said coplait 0o"

lac o0 e"it. & is "-li Lao" A"ite" Ga"d--e

s-staied petitioe"Ks a"-et tat p"ivate

"espodet as a p"oEect eploee. %e positio o0 a

elpe" does ot 0all iti te classi0icatio o0 "e-la"

eploees. ece, coplaiat eve" attaied"e-la" eploet stat-s. Mo"eove", is silece 0o"

o"e ta t"ee (3) ea"s ito-t a "easoale

eJplaatio teded to eae is clai.

,n April 1= 1!!< public respondent 7*C promulgated its assailed decision reversing *abor Arbiter ardu9ue’s decision#

&SS'S

(1) 2,7 private respondent is a pro/ectemplo&ee or a regular emplo&ee and (4) 2as heterminated legall& or dismissed illegall&

L*

@t %as held that private respondent is a pro/ectemplo&ee# Clearl& private respondent %as hired for aspecific pro/ect that %as not %ithin the regular businessof the corporation# or petitioner is not engaged in the

business of repairing furnaces# Although the activit& %asnecessar& to enable petitioner to continue manufacturingglass the necessit& therefor arose onl& %hen a particular furnace reached the end of its life or operating c&cle# ,ras in the second undertaking %hen a particular furnace

re9uired an emergenc& repair# @n other %ords theundertakings %here private respondent %as hired

primaril& as helperDbrickla&er have specified goals and purposes %hich are fulfilled once the designated %ork %as completed# 'oreover such undertakings %ere alsoidentifiabl& separate and distinct from the usual ordinar&or regular business operations of petitioner %hich isglass manufacturing# These undertakings the durationand scope of %hich had been determined and madekno%n to private respondent at the time of hisemplo&ment clearl& indicated the nature of hisemplo&ment as a pro/ect emplo&ee# Thus his services%ere terminated legall& after the completion of the

pro/ect#8ublic respondent 7*C’s decision if upheld %ouldamount to negating the distinctions made in Article 4=;of the *abor Code# @t %ould shunt aside the rule thatsince a pro/ect emplo&ee’s %ork depends on theavailabilit& of a pro/ect necessaril& the duration of hisemplo&ment is coterminous %ith the pro/ect to %hich he

is assigned# @t %ould become a burden for an emplo&er toretain an emplo&ee and pa& him his corresponding %agesif there %as no pro/ect for him to %ork on#

Thus under Article 4=; of the *abor Code anemplo&ment is deemed regular %hen the activities

performed b& the emplo&ee are usuall& necessar& or desirable in the usual business or trade of the emplo&er even if the parties enter into an agreement statingother%ise# But considered not regular under said Articleare (1) the so-called Gpro/ect emplo&mentH thetermination of %hich is more or less determinable at thetime of emplo&ment such as those connected %ith a

particular construction pro/ect3 and (4) seasonalemplo&ment %hich b& its nature is onl& for one seasonof the &ear and the emplo&ment is limited for theduration of that season such as the Christmas holida&season# 7evertheless an eception to this eception ismade0 an& emplo&ee %ho has rendered at least one (1)&ear of service %hether continuous or intermittent %ithrespect to the activit& he performed and %hile suchactivit& actuall& eists must be deemed regular#

R'L&NG

The instant petition is hereb& A7T+# The decisionof respondent 7*C is hereb& +++ and the

/udgment of the *abor Arbiter +@7TAT+# EEEEEEEEEEEEEEEEEEEEEEEEEEEE

15) Me"cado, S". vs. NLRC, 21 SCRA 332/ G.R. No.

79!#9. Septee" 5, 1991

>R+8C% M>L+? +R SAS+NAL

M>L+?

Lao" La3 +vidence3 Administrative decision inmatters %ithin the eecutive’s /urisdiction can onl& be setaside upon proof of gross abuse of discretion fraud or error of la%#NThe invariable rule set b& the Court inrevie%ing administrative decisions of the +ecutiveBranch of the overnment is that the findings of factmade therein are respected so long as the& are supported

b& substantial evidence even if not over%helming or preponderant3 that it is not for the revie%ing court to%eigh the conflicting evidence determine the credibilit&of the %itnesses or other%ise substitute its o%n /udgmentfor that of the administrative agenc& on the sufficienc& of the evidence3 that the administrative decision in matters%ithin the eecutive’s /urisdiction can onl& be set aside

20



LABOR RELATIONS

upon proof of gross abuse of discretion fraud or error of la%#

$idis o0 te Lao" A"ite" i tis case a"e al

s-ppo"ted evidece#NA careful eamination of theforegoing statements reveals that the findings of the*abor Arbiter in the case are abl& supported b& evidence#There is therefore no circumstance that %ould %arrant areversal of the 9uestioned decision of the *abor Arbiter as affirmed b& the 7ational *abor elationsCommission#

Re-la" eploee definition of#NThe first paragraphans%ers the 9uestion of %ho are regular emplo&ees# @tstates that regardless of an& %ritten or oral agreement tothe contrar& an emplo&ee is deemed regular %here he isengaged in necessar& or desirable activities in the usual

business or trade of the emplo&er ecept for pro/ectemplo&ees#

<o a"e deeed cas-al eploees#NThe second paragraph of Art# 4=; demarcates as GcasualH emplo&eesall other emplo&ees %ho do not fall under the definitionof the preceding paragraph# The proviso in said second

paragraph deems as regular emplo&ees those GcasualHemplo&ees %ho have rendered at least one &ear of serviceregardless of the fact that such service ma& becontinuous or broken#

>"oEect eploee, de0iitio o0 #NA project employee

has been defined to be one whose employment has been

fi0ed for a specific project or undertaking" thecompletion or termination of which has been determined

at the time of the engagement of the employee" or wherethe work or service to be performed is seasonal in nature

and the employment is for the duration of the season asin the present case#

$AC%S

Assailed in this petition for certiorari is the decisionVV of the respondent national *abor elations Commission(7*C) dated = August 1!=: %hich affirmed thedecision of respondent *abor Arbiter *uciano 8# A9uino%ith the slight modification of deleting the a%ard offinancial assistance to petitioners and the resolution of

the respondent 7*C dated 16 August 1!=6 den&ing petitioners’ motion for reconsideration#

This petition originated from a complaint for illegaldismissal underpa&ment of %ages3 non-pa&ment of overtime pa& holida& pa& service incentive leave

benefits emergenc& cost of living allo%ances and 1"thmonth pa& filed b& above-named petitioners#8etitioners alleged in their complaint that the& %ereagricultural %orkers utili?ed b& private respondents in allthe agricultural phases of %ork on the 6 1D4 hectares of rice land and 1; hectares of sugar land o%ned b& thelatter3 that ortunato 'ercado r# and *eon antillan%orked in the farm of private respondents since 1!:!ortunato 'ercado Fr# and Antonio 'ercado since 1!64and the rest of the petitioners since 1!<; up to April1!6! %hen the& %ere all allegedl& dismissed from their emplo&ment#

8rivate respondent Aurora Cru? in her ans%er to petitioners’ complaint denied that said petitioners %ereher regular emplo&ees and instead averred that sheengaged their services through pouses ortunato'ercado r# and osa 'ercado their GmandarolsH that

is persons %ho take charge in suppl&ing the number of %orkers needed b& o%ners of various farms but onl& todo a particular phase of agricultural %ork necessar& inrice production andDor sugar cane production after %hichthe& %ould be free to render services to other farmo%ners %ho need their services#The other private respondents denied having an&relationship %hatsoever %ith the petitioners and state thatthe& %ere merel& registered o%ners of the land in9uestion included as co-respondents in this case#

espondent *abor Arbiter *uciano 8# A9uino ruled infavor of private respondents and held that petitioners%ere not regular and permanent %orkers of the privaterespondents for the nature of the terms and conditions of their hiring reveal that the& %ere re9uired to perform

phases of agricultural %ork for a definite period of timeafter %hich their services %ould be available to an& other farm o%ner#: espondent *abor Arbiter deemed

petitioners’ contention of %orking t%elve (14) hours a

da& the %hole &ear round in the farm an eaggerationfor the reason that the planting of rice and sugar canedoes not entail a %hole &ear as reported in the findings of the Chief of the 7*C pecial Task orce#The 7*C ruled in favor of private respondentsaffirming the decision of the respondent *abor Arbiter%ith the modification of the deletion of the a%ard for financial assistance to petitioners#

&SS'

2hether or not petitioners are regular and permanent farm %orkers and therefore entitled to the benefits %hich the& pra& for# And corollar& to this

%hether or not said petitioners %ere illegall& dismissed b& private respondents

L*

N+. >etitioe"s ei p"oEect eploees o"

to -se te co""ect te" seasoal eploees, tei"

eploet leall eds -po copletio o0 te

p"oEect o" te seaso. %e te"iatio o0 tei"

eploet caot ad so-ld ot costit-te a

illeal disissal.

R'L&NG

The petition is @'@+# The decision of

the 7ational *abor elations Commission affirming thatof the *abor Arbiter under revie% is A@'+# 7o pronouncement as to costs#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEE 1#) Aasolo vs. Natioal Lao" Relatios

Coissio, 34# SCRA 293/ G.R. No. 11!475

Novee" 29, 2

RG'LAR SAS+NAL M>L+?S

(>%&%&+NRS)

Lao" La Classi0icatio o0 ploet Nature of one4s employment does not depend solely on the will or

word of the employer nor on the procedure for hiring

and the manner of designating the employee" but on the

nature of the activities to be performed by the employee"considering the employer4s nature of business and the

duration and scope of work to be done#NThe nature of one’s emplo&ment does not depend solel& on the %ill or %ord of the emplo&er# 7or on the procedure for hiringand the manner of designating the emplo&ee but on thenature of the activities to be performed b& the emplo&ee

21



LABOR RELATIONS

considering the emplo&er’s nature of business and theduration and scope of %ork to be done#

Court has already settled that seasonal 1orkers who are

called to work from time to time and are temporarily laid

off during offseason are not separated from service in

said period but are merely considered on leave until re$employed#> @n the case at bar %hile it ma& appear thatthe %ork of petitioners is seasonal inasmuch as

petitioners have served the compan& for man& &earssome 0o" ove" 2 ea"s, performing services necessar&and indispensable to *$T,C,’s business serve as

badges of regular emplo&ment# 'oreover the fact that petitioners do not %ork continuousl& for one %hole &ear but onl& for the duration of the tobacco season does notdetract from considering them in regular emplo&mentsince in a litan& of cases this Court has alread& settledthat seasonal %orkers %ho are called to %ork from timeto time and are temporaril& laid off during off-season arenot separated from service in said period but are merel&considered on leave until re-emplo&ed#

$AC%S

8rivate respondent La 'io %oacco

Red"i Co"po"atio (L'%+RC+), %hich is o%ned b& private respondent ee *in Chan is engaged in the business of bu&ing selling redr&ing and processing of tobacco leaves and its b&-products# Tobacco season startssometime in ,ctober of ever& &ear %hen tobacco farmersgerminate their seeds in plots until the& are read& for replanting in 7ovember# The harvest season starts inmid-ebruar&# Then the farmers sell the harvestedtobacco leaves to redr&ing plants or do the redr&ing

themselves# The redr&ing plant of *$T,C, receivestobacco for redr&ing at the end of ebruar& and startsredr&ing in 'arch until August or eptember#

>etitioe"s have been under the emplo& of *$T,C,for several &ears until their emplo&ment %as abruptl&interrupted sometime in 'arch 1!!" %hen Companiaeneral de Tabaccos de ilipinas (also kno%n asTABACA*+A) took over *$T,C,’s tobaccooperations# 7e% signboards %ere posted indicating achange of o%nership and petitioners %ere then asked b&*$T,C, to file their respective applications for emplo&ment %ith TABACA*+A# 8etitioners %ere

caught una%are of the sudden change of o%nership andits effect on the status of their emplo&ment though it %asalleged that TABACA*+A %ould assume and respectthe seniorit& rights of the petitioners#,n 'arch 16 1!!" the disgruntled emplo&ees instituted

before the 7*C egional Arbitration Branch 7o# 1an ernando *a $nion a complaint for separation pa&against private respondent *$T,C, on the ground thatthere %as a termination of their emplo&ment due to theclosure of *$T,C, as a result of the sale and turnover to TABACA*+A# ,ther e9uall& affected emplo&eesfiled t%o additional complaints also for separation pa&%hich %ere consolidated %ith the first complaint#>"ivate "espodet corporation raised as its defense thatit is eempt from pa&ing separation pa& and denied thatit terminated the services of the petitioners3 and that itstopped its operations due to the absence of capital andoperating funds caused b& losses incurred from 1!!; to1!!4 and absence of operating funds for 1!!" coupled%ith adverse financial conditions and do%nfall of prices#

@t alleged further that *$T,C, entered intoan agreement %ith TABACA*+A to take over *$T,C,’s tobacco operations for the &ear 1!!" in thehope of recovering from its serious business losses in the

succeeding tobacco seasons and to create a continuingsource of income for the petitioners# *astl& it manifestedthat *$T,C, in good faith and %ith sincerit& is%illing to grant reasonable and ad/usted amounts to the

petitioners as financial assistance if and %hen*$T,C, could recover from its financial crisis#

,n ecember 4! 1!!" *abor Arbiter icardo 7# ,laire? rendered his decision dismissing thecomplaint for lack of merit# @n upholding privaterespondent *$T,C,’s position the 'abor %rbiter

declared that the petitioners are not entitled to the

benefits under %rticle 578 of the 'abor Code since*$T,C, ceased to operate due to serious businesslosses and furthermore TABACA*+A the ne%emplo&er of the petitioner has assumed the seniorit&rights of the petitioners and other emplo&ment liabilitiesof the *$T,C,#

8etitioners %ere not terminated fromemplo&ment but petitioners instead refused to %ork %ithTABACA*+A despite the notice to petitioners to

return to %ork in vie% of *$T,C,’s need for %orkersat its Agoo plant %hich had approimatel& ";;;;; kilosof irginia tobacco for processing and redr&ing#urthermore petitioners are not entitled to separation

pa& because petitioners are seasonal %orkers#8etitioners vigorousl& maintain that the& are regular %orkers of respondent *$T,C, since the& %orkedcontinuousl& for man& &ears %ith *$T,C, some of them even for over 4; &ears and that the& performedfunctions necessar& and desirable in the usual business of *$T,C,# According to them the fact that some of them %ork onl& during the tobacco season does notaffect their status as regular %orkers since the& have

been repeatedl& called back to %ork for ever& season&ear after &ear#1= Thus petitioners take eception to thefactual findings and conclusions of the 7*C stressingthat the conclusions of the 7*C %ere based solel& onthe ne% theor& advanced b& private respondent*$T,C, onl& on appeal that is that it %as onl&*$T,C,’s tobacco re-dr&ing operation that %as soldand hence diametricall& opposed to its theor& before the*abor Arbiter i#e# that it is the entire compan&(*$T,C,) itself that %as sold#8rivate respondent *$T,C, on the other hand insiststhat petitioners’ emplo&ment %as not terminated3 that itnever ceased to operate and that it %as petitioners

themselves %ho severed their emplo&er-emplo&eerelationship %hen the& chose emplo&ment %ithTABACA*+A because petitioners found more stabilit&%orking %ith TABACA*+A than %ith *$T,C,#1!@t like%ise insists that petitioners are seasonal %orkerssince almost all of petitioners never continuousl& %orkedin *$T,C, for an& given &ear4; and the& %erere9uired to reappl& ever& &ear to determine %ho amongthem shall be given %ork for the season#

The public respondent 7*C in the case at bar erred inits total affirmance of the dismissal of the consolidatedcomplaint for separation pa& against privaterespondents *$T,C, and ee *in Chan consideringthat petitioners are regular seasonal emplo&ees entitled tothe benefits of A"ticle 2!3 o0 te Lao" Code %hichapplies to closures or cessation of an establis"ment or

undertaking$ %hether it be a complete or partialcessation or closure of business operation#

&SS'S

(1) 2hether petitioners’ emplo&ment %ith*$T,C, %as terminated and (4) 2hether petitionersare regular or seasonal %orkers as defined b& la%

22



LABOR RELATIONS

L*

1) N+. Court has alread& settled that seasonal %orkers%ho are called to %ork from time to time and aretemporaril& laid off during offseason are not separatedfrom service in said period but are merel& considered onleave until re-emplo&ed#

4) >etitioe" a"e "e-la" o"e"s # @n the case at bar%hile it ma& appear that the %ork of petitioners isseasonal inasmuch as petitioners have served thecompan& for man& &ears some for over 4; &ears

performing services necessar& and indispensable to*$T,C,’s business serve as badges of regular emplo&ment# 'oreover the fact that petitioners do not%ork continuousl& for one %hole &ear but onl& for theduration of the tobacco season does not detract fromconsidering them in regular employment since in a litan&

of cases this Court has alread& settled that seasonal%orkers %ho are called to %ork from time to time andare temporaril& laid off during off-season are notseparated from service in said period but are merel&considered on leave until re-emplo&ed#8rivate respondent’s reliance on the case of 'ercardo v#

7*C is misplaced considering that since in said case of 'ercado although the respondent compan& thereinconsistentl& availed of the services of the petitionerstherein from &ear to &ear it %as clear that petitionerstherein %ere not in respondent compan&’s regular emplo&# 8etitioners therein performed different phases of agricultural %ork in a given &ear# .o%ever during that

period the& %ere free to contract their services to %ork for other farm o%ners as in fact the& did# Thus theCourt ruled in that case that their emplo&ment %ouldnaturall& end upon the completion of each pro/ect or

phase of farm %ork for %hich the& have been contracted#

The test of ete" o" ot a eploee is a "e-la"

eploee has been laid do%n in *e Leo v. NLRC in%hich this Court held0The primar& standard therefore of determining regular emplo&ment is the reasonable connection bet%een the

particular activit& performed b& the emplo&ee in relationto the usual trade or business of the emplo&er# The test is

%hether the former is usuall& necessar& or desirable inthe usual business or trade of the emplo&er# Theconnection can be determined b& considering the natureof the %ork performed and its relation to the scheme of the particular business or trade in its entiret&# Also if theemplo&ee has been performing the /ob for at least a &eareven if the performance is not continuous and merel&intermittent the la% deems repeated and continuing needfor its performance as sufficient evidence of the necessit&if not indispensabilit& of that activit& to the business#.ence the emplo&ment is considered regular but onl&%ith respect to such activit& and %hile such activit&eists#

R'L&NG

The petitio is e"e GRAN%* and theassailed esolutions dated Ful& < 1!!: and eptember 4" 1!!: of public respondent 7*C are +++and +T A@+# 8rivate respondent *a $nion Tobaccoedr&ing Corporation is ,++0 (a) to pa&petitioe"s sepa"atio pa e-ivalet to oe (1)

ot, o" oe6al0 (1/2) ot pa 0o" eac ea" tat

te "ede"ed se"vice, iceve" is ie", p"ovided

tat te "ede"ed se"vice 0o" at least siJ (#) ots

i a ive ea", and3 (b) to pa& ten percent (1;I) of thetotal amount due to petitioners as and for attorne&’s fees#Conse9uentl& public respondent 7*C is ,++ toC,'8$T+ the total amount of separation pa& %hicheach petitioner %ho has rendered service to privaterespondent *$T,C, for at least si (<) months in agiven &ear is entitled to receive in accordance %ith thisdecision and to submit its compliance thereon %ithinfort&-five (:5) da&s from notice of this decision#

IIIIIIIIIIIIIIIIIIIIIIIIIIIII

@n the case of >ilippie %oacco $l-e6C-"i =

Red"i Co"po"atio v. NLRC this Court %hen faced%ith the 9uestion of ete" te sepa"atio pa o0 a

seasoal o"e", o o"s 0o" ol a 0"actio o0 a

ea", so-ld e e-ated it te sepa"atio pa o0 a

"e-la" o"e" resolved that 9uestion in this %ise0The amount of separation pay is based on t1o factors 0the amount of monthl& salar& and the number of &ears of service# Although the *abor Code provides different

definitions as to %hat constitutes Gone &ear of serviceHBook i"1 does not specificall& define Gone &ear of serviceH for purposes of computing separation pa&#.o%ever Articles 4=" and 4=: both state in connection%ith separation pa& that a fraction of at least si monthsshall be considered one %hole &ear# Appl&ing this case at

bar %e hold that the amount of separation pa& %hichrespondent members should receive is one-half (1D4) their respective average monthl& pa& during the lastseason the& %orked multiplied b& the number of &earsthe& actuall& rendered service provided that the& %orkedfor at least si months during a given &ear#

Thus in the said case the emplo&ees %ere a%ardedseparation pa& e9uivalent to one (1) month or to one-half (1D4) month pa& for ever& &ear the& renderedservice %hichever is higher provided the& renderedservice for at least si (<) months in a given &ear# Aseplained in the tet of the decision in the said caseBot paD shall be understood as Gave"ae otl

pa during the last season the& %orked#H An a%ard of te pe"cet (1) of the total amount due petitioners asattorne&’s fees is legall& and morall& /ustifiable under Art# 111 of the *abor Code"" ec# = ule @@@ Book @@@of its @mplementing ules": and par# 6 Art# 44;="5 of the Civil Code#

EEEEEEEEEEEEEEEEEEEEEEEEEEEE 17) acieda $atia vs. Natioal $ede"atio o0

S-a"cae <o"e"s6$ood ad Gee"al %"ade, 39#

SCRA 51!/ G.R. No. 14944 8a-a" 2!, 23

RG'LAR M>L+?MN%

Lao" La ploet Re-la" ploee

efinition#NGTUhe test of %hether or not an emplo&eeis a regular emplo&ee has been laid do%n in @e 'eon v#

N'-C" in %hich this Court held0 GThe primar& standardtherefore of determining regular emplo&ment is thereasonable connection bet%een the particular activit&

performed b& the emplo&ee in relation to the usual tradeor business of the emplo&er# The test is %hether theformer is usuall& necessar& or desirable in the usual tradeor business of the emplo&er# The connection can bedetermined b& considering the nature of the %ork

performed and its relation to the scheme of the particular business or trade in its entiret&# Also if the emplo&ee has been performing the /ob for at least a &ear even if the performance is not continuous and merel& intermittentthe la% deems repeated and continuing need for its

23



LABOR RELATIONS

performance as sufficient evidence of the necessit& if notindispensabilit& of that activit& to the business# .encethe emplo&ment is considered regular but onl& %ithrespect to such activit& and %hile such activit& eists# G TUhe fact that respondentsU do not%ork continuousl& for one %hole &ear but onl& for theduration of the season does not detract fromconsidering them in regular emplo&ment since in a litan&of cases this Court has alread& settled that seasonal%orkers %ho are called to %ork from time to time andare temporaril& laid off during off-season are notseparated from service in said period but merel&considered on leave until re-emplo&ed#H

*isissals %e -"de is o te eploe" to p"ove

tat te te"iatio as 0o" a valid ad a-to"iHed

ca-se#NG2here there is no sho%ing of clear valid andlegal cause for the termination of emplo&ment the la%considers the matter a case of illegal dismissal and the

burden is on the emplo&er to prove that the termination

%as for a valid and authori?ed cause#H @n the case at bar petitioners failed to prove an& such cause for thedismissal of respondents %ho as discussed above areregular emplo&ees#

%ppeals; Aactual findings of labor officials" who are

deemed to have ac!uired e0pertise in matters within

their respective jurisdictions" are generally accorded not only respect but even finality#N2e uphold the CA’saffirmation of the above findings# @ndeed factualfindings of labor officials %ho are deemed to haveac9uired epertise in matters %ithin their respective

/urisdictions are generall& accorded not onl& respect but

even finalit&# Their findings are binding on the upremeCourt# eril& their conclusions are accorded great %eightupon appeal especiall& %hen supported b& substantialevidence# Conse9uentl& the Court is not dut&-bound todelve into the accurac& of their factual findings in theabsence of a clear sho%ing that these %ere arbitrar& and

bereft of an& rational basis#

$AC%S

Although the emplo&ers have sho%n that respondents performed %ork that %as seasonal in nature the& failedto prove that the latter %orked onl& for the duration of

one particular season# @n fact petitioners do not den& thatthese %orkers have served them for several &ears alread&#.ence the& are regularNnot seasonalNemplo&ees#

The facts are summari?ed in the N'-C @ecision asfollo%s0GContrar& to the findings of the *abor Arbiter thatcomplainants herein respondentsU refused to %ork andDor %ere choos& in the kind of /obs the& %anted to

perform the records is replete %ith complainants’ persistence and dogged determination in going back to%ork#G@ndeed it %ould appear that respondents did not look %ith favor %orkers’ having organi?ed themselves into aunion# Thus %hen complainant union %as certified asthe collective bargaining representative in thecertification elections respondents under the pretet thatthe result %as on appeal refused to sit do%n %ith theunion for the purpose of entering into a collective

bargaining agreement# 'oreover the %orkers includingcomplainants herein %ere not given %ork for more thanone month# @n protest complainants staged a strike%hich %as ho%ever settled upon the signing of a'emorandum of Agreement#

The CA a00i"ed that while the work of respondents was

seasonal in nature" they were considered to be merely on

leave during the off$season and were therefore still employed by petitioners# 'oreover the %orkers en/o&edsecurit& of tenure# An& infringement upon this right %asdeemed b& the CA to be tantamount to illegal dismissal#The appellate court found neither Grh&me nor reason in

petitioner’s argument that it %as the %orkers themselves%ho refused to or %ere choos& in their %ork#H As found

b& the 7*C the record of this case is Greplete %ithcomplainants’ persistence and dogged determination ingoing back to %ork#H<The CA like%ise concurred %ith the 7*C’s finding that

petitioners %ere guilt& of unfair labor practice#

&SS'S

(1) 2hether or not the Court of Appeals erred in holdingthat respondents admittedl& seasonal %orkers %ereregular emplo&ees contrar& to the clear provisions of

Article 4=; of the *abor Code %hich categoricall& statethat seasonal emplo&ees are not covered b& the definitionof regular emplo&ees under paragraph 1 nor coveredunder paragraph 4 %hich refers eclusivel& to casualemplo&ees %ho have served for at least one &ear3(4) 2hether or not the Court of Appeals erred inre/ecting the ruling in 'ercado and rel&inginstead on rulings %hich are not directl& applicable to thecase at bench vi?# 8hilippine Tobacco Bacolod'urciaand aco 3(") 2hether or not the Court of Appeals committed graveabuse of discretion in upholding the 7*C’s conclusionthat private respondents %ere illegall& dismissed that

petitioners %ereU guilt& of unfair labor practice and thatthe union be a%arded moral and eemplar& damages#H

L*

The 8etition has no merit#$i"st &ss-e; Re-la" ploet

At -the outset %e must stress that onl& errors of la% aregenerall& revie%ed b& this Court in petitions for revie%on certiorari of CA decisions#! >uestions of fact are notentertained#1; The Court is not a trier of facts and inlabor cases this doctrine applies %ith greater force#11actual 9uestions are for labor tribunals to resolve#14 @n

the present case these have alread& been threshed out b&the 7*C# @ts findings %ere affirmed b& the appellatecourt#Contrar& to petitioners’ contention the CA did not err %hen it held that respondents %ere regular emplo&ees#Article 4=; of the *abor Code as amended states0GA"t. 2!. Re-la" ad Cas-al ploet#NThe

provisions of %ritten agreement to the contrar&not%ithstanding and regardless of the oral agreement of the parties an emplo&ment shall be deemed to be regular %here the emplo&ee has been engaged to performactivities %hich are usuall& necessar& or desirable in theusual business or trade of the emplo&er ecept %here theemplo&ment has been fied for a specific pro/ect or undertaking the completion or termination of %hich has

been determined at the time of the engagement of theemplo&ee or %here the %ork or services to be performedis seasonal in nature and the emplo&ment is for theduration of the season#

The fact that respondentsN%ith the eception of *uisaombo amona ombo Bobong Abriga and Bobo&ilvaNrepeatedl& %orked as sugarcane %orkers for

petitioners for several &ears is not denied b& the latter#

24



LABOR RELATIONS

+videntl& petitioners emplo&ed respondents for morethan one season# Therefore the general rule of regular emplo&ment is applicable#8etitioners’ move actuall& amounted to unjustified dismissal of respondents in violation of the *abor Code#G2here there is no sho%ing of clear valid and legalcause for the termination of emplo&ment the la%considers the matter a case of illegal dismissal and the

burden is on the emplo&er to prove that the termination%as for a valid and authori?ed cause#H1< @n the case at

bar petitioners failed to prove an& such cause for thedismissal of respondents %ho as discussed above areregular emplo&ees#

Secod &ss-e; '0ai" Lao" >"actice

The 7*C also found herein petitioners guilt& of unfair labor practice# @t ruled as follo%s0G@ndeed from respondents’ refusal to bargain to their acts of economic inducements resulting in the promotionof those %ho %ithdre% from the union the use of armed

guards to prevent the organi?ers to come in and thedismissal of union officials and members one cannot butconclude that respondents did not %ant a union in their haciendaNa clear interference in the right of the %orkersto self-organi?ation#H

The finding of unfair labor practice done in bad faithcarries %ith it the sanction of moral and eemplar&damages#

R'L&NG

The 8etition is hereb& +7@+ and the assailedecision A@'+# Costs against petitioners#

EEEEEEEEEEEEEEEEEEEEEEEEEEEE 1!) 'ive"sit o0 Sto. %oas vs. NLRC, 1!2 SCRA

371/ G.R. No. !5519. $e"-a" 15, 199

Respodet did ot ecoe a pe"aet

eploee o0 petitioe" 'S%

abor a1; 5eac"ers; 7ermanent Employment

; nder

the Manual of -egulations for *rivate +chools" a part$

time member of the faculty cannot ac!uire permanencein employment #NThe leal "e-isites therefore for ac9uisition b& a teacher of permanent emplo&ment or securit& of tenure are as follo%s0 1) the teacher is a full

time teacher3 4) the teacher must have rendered three (")consecutive &ears of service3 and ") such service musthave been satisfactor&# 7o% the 'anual of egulationsalso states that Ga full-time teacherH is Gone %hose total%orking da& is devoted to the school has no other regular remunerative emplo&ment and is paid on aregular monthl& basis regardless of the number of teaching hoursH (8ar# 66)3 and that in college" /the

normal teaching load of a full$time instructor shall beeighteen hours a week1 (par# 6=)# @t follo%s that a part-time member of the facult& cannot ac9uire permanencein emplo&ment under the 'anual of egulations inrelation to the *abor Code#

Employment of pri0ate respondent$ 1"ose total

1orking day 1as not de0oted to t"e sc"ool alone$ and

1"o "ad ot"er regular remunerati0e employment$

merely part-time$ "ence$ "e could not "a0e and did not

become a permanent employee e0en after completion of

t"ree () years of ser0ice#N@t cannot be said thatrespondent’s total %orking da& %as devoted to the schoolalone# @t is clear from the record that he %as practisinghis profession as a doctor and maintaining a clinic in the

hospital for this purpose during the time that he %asgiven a teaching load# @n other %ords he had another regular remunerative %ork aside from teaching# .is total%orking da& %as not therefore devoted to the school#@ndeed his salaries from teaching %ere computed b& therespondent Commission itself at onl& an average of 8<<;#;; per month3 he therefore had to have other sources of income and this of course %as his self-emplo&ment as a practising ps&chiatrist# That thecompensation for teaching had to be averaged also sho%sthat he %as not paid on a regular monthl& basis#'oreover there is absolutel& no evidence that he

performed other functions for the school %hen notteaching# All things considered it %ould appear thatteaching %as onl& a secondar& occupation or Gside-lineHhis professional practice as a ps&chiatrist being his mainvocation# The private respondent therefore couldnot be regarded as a full-time teacher in an& aspect# .ecould not be regarded as such because his total %orkingda& %as not devoted to the school and he had other

regular remunerative emplo&ment# 'oreover his averageteaching load %as onl& <#"" hours a %eek# @n vie% of theeplicit provisions of the 'anual of egulations above-9uoted and the fact that private respondent %as not afull-time teacher he could not have and did not become a

permanent emplo&ee even after the completion of three(") &ears of service#

7ri0ate respondents6 temporary appointment "a0ing

lapsed$ "is reappointment is a matter addressed to t"e

discretion of said petitioner #N.aving found that private"espodet did ot ecoe a pe"aet eploee o0

petitioe" 'S% it correspondingl& follo%s that there

%as no dut& on the part of petitioner $T to reappoint private respondent as @nstructor the temporar&appointment having lapsed# uch appointment is a matter addressed to the discretion of said petitioner#

$AC%S

The private respondent *". :asilio . :o"Ea

%as first appointed as Ba00iliate 0ac-ltD in the acult&of 'edicine and urger& at the $niversit& of to# Tomas($T for short) on eptember 4! 1!6<# @n the secondsemester of the school &ear 1!6<-66 he %as appointedinstructor %ith a load of t%elve (14) hours a %eek# .e%as reappointed instructor for the school &ear 1!66-6=

%ith a load of nine (!) hours a %eek in the first semester and t%o (4) hours a %eek in the second# ,n Fune 1;1!6= he %as appointed as @nstructor @@@ for the school&ear 1!6=-6!# .is load for the first semester %as eight(=) hours a %eek and for the second semester seven (6)hours a %eek#

,n 'arch 1! 1!6! ean ilberto ame?observed that r# Bor/a should not be reappointed basedon the evaluation sheet that sho%s his sub-standard andinefficient performance# 7evertheless in vie% of thecritical shortage of staff members in the epartment of

7eurolog& and 8s&chiatr& r# ame? recommended thereappointment of r# Bor/a after informing the latter of the negative feedbacks regarding his teaching and his

promise to improve his performance# Thus on Ful& 461!6! he %as etended a reappointment as @nstructor @@@in the school &ear 1!6!-=;# .e %as given a load of si(<) hours a %eek# @n all these appointments he %as a parttime instructor#

At the end of the academic &ear it appearing that r#Bor/a had not improved his performance in spite of hisassurances of improvement his reappointment %as notrecommended#

25



LABOR RELATIONS

@n Ful& 1!=4 he filed a complaint in the 7ational *abor elations Commission (7*C for short) for illegaldismissal against the $T# After the submission of the

pleadings and due proceedings the labor arbiter rendereda decision on Ful& 1! 1!=: the dispositive part of %hichreads as follo%s0G2.++,+ this ,ffice finds in favor of thecomplainant# The respondents (sic) universit& are hereb&ordered to effect the immediate reinstatement of complainant to his former position %ith full back%agesrights and benefits appertaining thereto# espondentuniversit& is like%ise ordered to pa& the complainant thesum of @+ .$7+ T.,$A7 8+,(85;;;;;#;;) as and b& %a& of moral damages andanother 1;I of the gross amount due him and as and b&%a& of attorne&’s fees#espondents are hereb& ordered to effect this decisionimmediatel&#The $T appealed therefrom to the 7*C %hich in duecourse rendered a decision on eptember "; 1!==

modif&ing the appealed decision

&SS'

2hether or not the private respondent %as afull-time or part-time member of the facult& during thethree (") &ears that he served in the petitioner-universit&’s College of 'edicine

L*

The +mplo&ment of private respondent %hosetotal %orking da& %as not devoted to the school aloneand %ho had other regular remunerative emplo&mentmerel& part-time hence he could not have and did not

become a permanent emplo&ee even after completion ofthree (") &ears of service#

.aving found that private respondent did not become a permanent emplo&ee of petitioner $T itcorrespondingl& follo%s that there %as no dut& on the

part of petitioner $T to reappoint private respondent as@nstructor the temporar& appointment having lapsed#uch appointment is a matter addressed to the discretionof said petitioner#

The findings therefore of the public respondent 7*C that private respondent %as constructivel&terminated is %ithout la%ful basis# B& the same token

the order for reinstatement of private respondent %ith back%ages plus an a%ard of actual or compensator&moral and eemplar& damages must be struck do%n#

R'L&NG

The petition is hereb& A7T+# The9uestioned orders of public respondent 7*C datedeptember 1" 1!== and public respondent labor arbiter Bienvenido # .er-nande? dated Ful& 1! 1!== arehereb& +T A@+ and another /udgment is hereb&rendered @'@@7 the complaint of privaterespondent %ithout pronouncement as to costs#

EEEEEEEEEEEEEEEEEEEEEEEE 19) >a-io vs. Natioal Lao" Relatios Coissio,

43 SCRA 19/ G.R. No. 147!1# Ma 9, 23

Lao" La ploe"6ploee Relatiosip

Re-la" ploees3 2ords and 8hrases3 The Bcot"ol

testH assumes primac& in the overall consideration of thenature of an emplo&ment %hether regular or other%ise#

NA B"e-la" eploet,D %hether it is one or not isaptl& gauged from the concurrence or the non-concurrence of the follo%ing factorsNa) the manner of selection and engagement of the putative emplo&ee b)

the mode of pa&ment of %ages c) the presence or absence of the po%er of dismissal3 and d) the presence or absence of the po%er to control the conduct of the

putative emplo&ee or the po%er to control the emplo&ee%ith respect to the means or methods b& %hich his %ork is to be accomplished# The Gcontrol testH assumes

primac& in the overall consideration# $nder this test anemplo&ment relation obtains %here %ork is performed or services are rendered under the control and supervisionof the part& contracting for the service not onl& as to theresult of the %ork but also as to the manner and details of the performance desired#

Mass Media; ,e1spaper; An account e>ecuti0e

responsible for soliciting ad0ertisements is clearly

necessary and desirable$ for t"e sur0i0al and continued

operation of an employer in t"e ne1spaper business! N That petitioner performed activities %hich %erenecessar& and desirable to the business of the emplo&erand that the same %ent on for more than a &ear couldhardl& be denied# >etitioe" as a acco-t eJec-tive

i soliciti adve"tiseets, clea"l ecessa" addesi"ale, 0o" te s-"vival ad coti-ed ope"atio o0

te -siess o0 "espodet co"po"atio. obinaokong%ei its 8resident herself admitted that theincome generated from paid advertisements %as thelifeblood of the ne%spaper’s eistence# @mplicitl&respondentcorporation recogni?ed petitioner’s invaluablecontribution to the business %hen it rene%ed not /ustonce but five times its contract %ith petitioner#

A la1ful dismissal must meet bot" substanti0e and

procedural re?uirement sNthe dismissal must be for a /ust or authori?ed cause and must compl& %ith the

rudimentar& due process of notice and hearing#NThereal 9uestion that should thus be posed is whether or not

petitioner has been justly dismissed from service# Ala%ful dismissal must meet both substantive and

procedural re9uirements3 in fine the dismissal must befor a /ust or authori?ed cause and must compl& %ith therudimentar& due process of notice and hearing# @t is notsho%n that respondent compan& has full& bothered itself %ith either of these re9uirements in terminating theservices of petitioner# The notice of termination recitesno valid or /ust cause for the dismissal of petitioner nor does it appear that he has been given an opportunit& to beheard in his defense#

$AC%S

,n 44 Fune 1!!4 respondent 'etromedia TimesCorporation entered for the fifth time into an agreement%ith petitioner +fren 8# 8aguio appointing the latter to

be an account eecutive of the firm#1 Again petitioner %as to solicit advertisements for GThe 'anila TimesH ane%spaper of general circulation published b&respondent compan&# 8etitioner for his efforts %as toreceive compensation consisting of a 15I commissionon direct advertisements less %ithholding ta and a 1;Icommission on agenc& advertisements based on grossrevenues less agenc& commission and the corresponding%ithholding ta# The commissions released ever& fifteenda&s of each month %ere to be given to petitioner onl&after the clients %ould have paid for the advertisements#Apart from commissions petitioner %as also entitled to amonthl& allo%ance of 84;;;#;; as long as he met the8";;;;#;;-monthl& 9uota#

Apart from vague allegations of misconduct on %hich he%as not given the opportunit& to defend himself i#e#

pirating clients from his co-eecutives and failing to produce results no definite cause for petitioner’s

26



LABOR RELATIONS

termination %as given# Aggrieved petitioner filed a case before the labor arbiter asking that his dismissal bedeclared unla%ful and that his reinstatement %ithentitlement to back%ages %ithout loss of seniorit& rights

be ordered# 8etitioner also pra&ed that respondentcompan& officials be held accountable for acts of unfair labor practice for 85;;;;;#;; moral damages and for 84;;;;;#;; eemplar& damages#@n their defense respondent 'etromedia TimesCorporation asserted that it did not enter into an&agreement %ith petitioner outside of the contract of services under Articles 1<:4 and 1<:: of the Civil Codeof the 8hilippines#: Asserting their right to terminate thecontract %ith petitioner respondents pointed to the last

provision thereof stating that both parties could opt toend the contract provided that either part& %ould servethirt& da&s prior to the intended date of termination thecorresponding notice to the other#The lao" a"ite" 0o-d 0o" petitioe" and declared

"is dismissal illegal! The arbiter ordered respondent

'etromedia Times Corporation and its officers toreinstate petitioner to his former position %ithout loss of seniorit& rights and to pa& him his commissions andother remuneration accruing from the date of dismissalon 15 August 1!!4 up until his reinstatement# .elike%ise ad/udged that *iberato @# ome? generalmanager of respondent corporation be held liable to

petitioner for moral damages in the amount of 84;;;;#;;#

,n appeal the 7ational *abor elations Commission(7*C) reversed the ruling of the labor arbiter anddeclared the contractual relationship bet%een the parties

as being for a fied-term emplo&ment# The 7*Cdeclared a fied-term emplo&ment to be la%ful as long asGit %as agreed upon kno%ingl& and voluntaril& b& the

parties %ithout an& force duress or improper pressure being brought to bear upon the %orker and absent an&other circumstances vitiating his consent#H5 The findingof the 7*C %as primaril& hinged on the assumptionthat petitioner on account of his educated stature havingindeed personall& prepared his pleadings %ithout the aidof counsel %as an unlikel& victim of a lopsided contract#e/ecting the assertion of petitioner that he %as a regular emplo&ee the 7*C held0 GThe decisive determinant%ould not be the activities that the emplo&ee (%as) called

upon to perform but rather the da& certain agreed upon b& the parties for the commencement and termination of their emplo&ment relationship a da& certain beingunderstood to be that %hich (%ould) necessaril& comealthough it (might) not be kno%n %hen#H8etitioner appealed the ruling of the 7*C before theCourt of Appeals %hich upheld in toto the findings of thecommission#

&SS'

2hether or not petitioner has been /ustl&dismissed from service

L*

N+. A la%ful dismissal must meet bothsubstantive and procedural re9uirements3 in fine thedismissal must be for a /ust or authori?ed cause and mustcompl& %ith the rudimentar& due process of notice andhearing# @t is not sho%n that respondent compan& hasfull& bothered itself %ith either of these re9uirements interminating the services of petitioner# The notice of termination recites no valid or /ust cause for thedismissal of petitioner nor does it appear that he has beengiven an opportunit& to be heard in his defense#

That petitioner performed activities %hich %erenecessar& and desirable to the business of the emplo&erand that the same %ent on for more than a &ear couldhardl& be denied# 8etitioner %as an account eecutive insoliciting advertisements clearl& necessar& anddesirable for the survival and continued operation of the

business of respondent corporation# obina okong%eiits 8resident herself admitted that the income generatedfrom paid advertisements %as the lifeblood of thene%spaper’s eistence# @mplicitl& respondentcorporation recogni?ed petitioner’s invaluablecontribution to the business %hen it rene%ed not /ustonce but five times its contract %ith petitioner#

R'L&NG

The instant petition is GRAN%*# The decision of theCourt of Appeals in CA-## 8 7o# 54666" and that of the 7ational *abor elations Commission are hereb&+T A@+ and that of the *abor Arbiter is

+@7TAT+ ecept %ith respect to the 84;;;;#;;moral damages ad/udged against respondent *iberato @#ome? %hich a%ard is deleted#

EEEEEEEEEEEEEEEEEEEEEEEE 2) :"et Scool, &c. vs. Fao"a, 1!1 SCRA 72/

G.R. No. 4!494. $e"-a" 5, 199

Lao" Relatios %e"iatio o0 ploet R.A.

152 Before the advent of the 'abor Code" term

employment was impliedly but clearly recogni:ed under

-#%# 63=5" as amended by -#%# 6<7< #NThe emplo&mentcontract bet%een Brent chool and Alegre %as eecutedon Ful& 1= 1!61 at a time %hen the *abor Code of the

8hilippines (8## ::4) had not &set been promulgated#@ndeed the Code did not come into effect until 7ovember 1 1!6: some three &ears after the perfectionof the emplo&ment contract and rights and obligationsthereunder had arisen and been mutuall& observed andenforced# At that time i#e# before the advent of the*abor Code there %as no doubt %hatever about thevalidit& of term emplo&ment# @t %as impliedl& butnonetheless clearl& recogni?ed b& the Termination 8a&*a% #A# 1;54 as amended b& #A# 16=6# Basicall&this statute provided thatN@n cases of emplo&ment%ithout a definite period in a commercial industrial or agricultural establishment or enterprise the emplo&er or

the emplo&ee ma& terminate at an& time the emplo&ment%ith /ust cause3 or %ithout /ust cause in the case of anemplo&ee b& serving %ritten notice on the emplo&er atleast one month in advance or in the case of anemplo&er b& serving such notice to the emplo&ee at leastone month in advance or one-half month for ever& &ear of service of the emplo&ee %hichever is longer afraction of at least si months being considered as one%hole &ear# The emplo&er upon %hom no such notice%as served in case of termination of emplo&ment %ithout

/ust cause ma& hold the emplo&ee liable for damages#The emplo&ee upon %hom no such notice %as served incase of termination of emplo&ment %ithout /ust causeshall be entitled to compensation from the date of termination of his emplo&ment in an amount e9uivalentto his salaries or %ages corresponding to the re9uired

period of notice# There %as to repeat clear albeitimplied recognition of the licitness of term emplo&ment#A 16=6 also enumerated %hat it considered to be /ustcauses for terminating an emplo&ment %ithout a definite

period either b& the emplo&er or b& the emplo&ee%ithout incurring an& liabilit& therefor#

The decisive determinant in term emplo&ment isot te at-"e o0 te activities pe"0o"ed te

27



LABOR RELATIONS

eploee, -t te Bda ce"taiH a"eed -po te

pa"ties 0o" te coeceet ad te"iatio o0

tei" eploet "elatiosip#N &he !uestion

immediately provoked by a reading of %rticle 862 iswhether or not a voluntary agreement on a fi0ed term or

period would be valid where the employee /has been

engaged to perform activities which are usually

necessary or desirable in the usual business or trade of the employer#1 &he definition seems a non se!uitur#

Arom the premise Nthat the duties of an emplo&ee entailGactivities %hich are usuall& necessar& or desirable in theusual business or trade of the emplo&erHNthe conclusiondoes not necessaril& follo% that the emplo&er andemplo&ee should be forbidden to stipulate an& period of time for the performance of those activities# There isnothing essentiall& contradictor& bet%een a definite

period of an emplo&ment contract and the nature of theemplo&ee’s duties set do%n in that contract as beingGusuall& necessar& or desirable in the usual business or trade of the emplo&er#H The concept of the emplo&ee’s

duties as being Gusuall& necessar& or desirable in theusual business or trade of the emplo&erH is nots&non&mous %ith or identical to emplo&ment %ith afied term# *ogicall& the decisive determinant in termemplo&ment should not be the activities that theemplo&ee is called upon to perform but the da& certainagreed upon b& the parties for the commencement andtermination of their emplo&ment relationship a da&certain being understood to be Gthat %hich mustnecessaril& come although it ma& not be kno%n %hen#Heasonal emplo&ment and emplo&ment for a particular

pro/ect are merel& instances of emplo&ment in %hich a period %here not epressl& set do%n is necessaril&

implied#+tipulations in employment contracts providing

for /term employment1 or fi>ed period employment<

are valid when the period where agreed upon knowingly"

and voluntarily by the parties without force" duress or

improper pressure e0erted on the employee; and when

such stipulations were not designed to circumvent thelaws on security of tenure#NAccordingl& and since theentire purpose behind the development of legislationculminating in the present Article 4=; of the *abor Codeclearl& appears to have been as alread& observed to

prevent circumvention of the emplo&ee’s right to besecure in his tenure the clause in said article

indiscriminatel& and completel& ruling out all %ritten or oral agreements conflicting %ith the concept of regular emplo&ment as defined therein should be construed torefer to the substantive evil that the Code itself hassingled out0 agreements entered into precisel& tocircumvent securit& of tenure# @t should have noapplication to instances %here a fied period of emplo&ment %as agreed upon kno%ingl& and voluntaril&

b& the parties %ithout an& force duress or improper pressure being brought to bear upon the emplo&ee andabsent an& other circumstances vitiating his consent or %here it satisfactoril& appears that the emplo&er andemplo&ee dealt %ith each other on more or less e9ualterms %ith no moral dominance %hatever beingeercised b& the former over the latter# $nless thuslimited in its purvie% the la% %ould be made to appl& to

purposes other than those eplicitl& stated b& its framers3it thus becomes pointless and arbitrar& un/ust in itseffects and apt to lead to absurd and unintendedconse9uences#

$AC%S

The root of the controvers& at bar is aneploet cot"act in virtue of %hich *o"oteo R.

Ale"e %as engaged as athletic director b& :"et

Scool, &c. at a &earl& compensation of 84;;;;#;;#The contract fied a specific term for its eistence 0ive

(5) ea"s i#e# from Ful& 1= 1!61 the date of eecutionof the agreement to Ful& 16 1!6<# ubse9uentsubsidiar& agreements dated 'arch 15 1!6" August 4=s1!6" and eptember 1: 1!6: reiterated the same termsand conditions including the epir& date as thosecontained in the original contract of Ful& 1= 1!61#

ome three months before the epiration of the stipulated period or more precisel& on April 4; 1!6< Alegre %asgiven a cop& of the report filed b& Brent chool %ith theepartment of *abor advising of the termination of hisservices effective on Ful& 1< 1!6<# The stated ground for the termination %as Gcompletion of contract epirationof the definite period of emplo&ment#H And a month or so later on 'a& 4< 1!6< Alegre accepted the amount of

8"166#61 and signed a receipt therefor containing the phrase Gin full pa&ment of services for the period 'a&1< to Ful& 16 1!6< as full pa&ment of contract#H

Alegre argued that although his contract did stipulate thatthe same %ould terminate on Ful& 16 1!6< since hisservices %ere necessar& and desirable in the usual

business of his emplo&er and his emplo&ment had lastedfor five &ears he had ac9uired the status of a regular emplo&ee and could not be removed ecept for validcause#< The egional irector considered Brent chool’sreport as an application for clearance to terminateemplo&ment (not a report of termination) and accepting

the recommendation of the *abor Conciliator refused togive such clearance and instead re9uired thereinstatement of Alegre as a Gpermanent emplo&eeH tohis former position %ithout loss of seniorit& rights and%ith full back %ages# The irector pronounced Gtheground relied upon b& the respondent (Brent) interminating the services of the complainant (Alegre) (as) not sanctioned b& 8## ::4H and 9uite oddl& as

prohibited b& Circular 7o# = series of 1!<! of theBureau of 8rivate chools#

Brent chool filed a motion for reconsideration# Theegional irector denied the motion and for%arded the

case to the ecretar& of *abor for revie%#= The latter sustained the egional irector#! Brent appealed to the,ffice of the 8resident# Again it %as rebuffed# That,ffice dismissed its appeal for lack of merit and affirmedthe *abor ecretar&’s decision ruling that Alegre %as a

permanent emplo&ee %ho could not be dismissed eceptfor /ust cause and epiration of the emplo&ment contract%as not one of the /ust causes provided in the *abor Code for termination of services#

&SS'

2hether or not a voluntar& agreement on afied term or period %ould be valid %here the emplo&eeGhas been engaged to perform activities %hich areusuall& necessar& or desirable in the usual business ortrade of the emplo&er

L*

?S. tipulations in emplo&ment contracts providing for Gterm emplo&mentH or Gfied periodemplo&mentH are valid %hen the period %here agreedupon kno%ingl& and voluntaril& b& the parties %ithoutforce duress or improper pressure eerted on the

28



LABOR RELATIONS

emplo&ee3 and %hen such stipulations %ere not designedto circumvent the la%s on securit& of tenure#

R'L&NG

The public respondent’s ecision complained of is+++ and +T A@+# espondent Alegre’scontract of emplo&ment %ith Brent chool havingla%full& terminated %ith and b& reason of the epirationof the agreed term of period thereof he is declared notentitled to reinstatement and the other relief a%arded andconfirmed on appeal in the proceedings belo%# 7o

pronouncement as to costs# IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII

rom the premiseNthat the duties of anemplo&ee entail Gactivities %hich are usuall& necessar&or desirable in the usual business or trade of theemplo&erHNthe conclusion does not necessaril& follo%that the emplo&er and emplo&ee should be forbidden tostipulate an& period of time for the performance of thoseactivities# There is nothing essentiall& contradictor&

bet%een a definite period of an emplo&ment contract andthe nature of the emplo&ee’s duties set do%n in thatcontract as being Gusuall& necessar& or desirable in theusual business or trade of the emplo&er#H The cocept o0

te eploeeKs d-ties as ei B-s-all ecessa" o"

desi"ale i te -s-al -siess o" t"ade o0 te

eploe"D is not s&non&mous %ith or identical toemplo&ment %ith a fied term# *ogicall& the decisivedeterminant in term emplo&ment should not be theactivities that the emplo&ee is called upon to perform

but the da& certain agreed upon b& the parties for thecommencement and termination of their emplo&mentrelationship a da& certain being understood to be Gthat

%hich must necessaril& come although it ma& not bekno%n %hen#H1! easonal emplo&ment andemplo&ment for a particular pro/ect are merel& instancesof emplo&ment in %hich a period %here not epressl&set do%n is necessaril& implied#,f course the term pe"iod has a definite and settledsignification# @t means GLet o0 eJistece3 duration#A point of time marking a termination as of a cause or anactivit&3 an end a limit a bound3 conclusion3termination# A series of &ears months or da&s in %hichsomething is completed# A time of definite length# the period from one fied date to another fied date #H4; @t connotes a Gspace of time %hich has an influence

on an obligation as a result of a /uridical act and either suspends its demandableness or produces itsetinguishment#H41 @t should be apparent that this settledand familiar notion of a period in the contet of acontract of emplo&ment takes no account at all of thenature of the duties of the emplo&ee3 it has absolutel& norelevance to the character of his duties as being Gusuall&necessar& or desirable to the usual business of theemplo&erH or not

EEEEEEEEEEEEEEEEEEEEEEEEEEE 21) Oie"l &depedet Lao" 'io $o"

Solida"it, Activis Ad Natioalis6+"aiHed

Lao" Associatio & Lie &d-st"ies Ad A"ic-lt-"e

vs. *"ilo, 1!5 SCRA 19/ G.R. No. 77#29. Ma 9,

199

Lao" La 8-"isdictio A-to"it o0 0o"e"

Miiste" SaceH to ass-e E-"isdictio ove" te

iss-e o0 te "e-la"iHatio o0 te #4 cas-al o"e"s

-peld#N2e uphold the authorit& of former 'inister anche? to assume /urisdiction over the issue of theregulari?ation of the #4 cas-al o"e"s %hich fact isnot even disputed b& J@*$A7-,*A*@A as ma& begleaned from its re9uest for an interim order in the notice

of strike case (B*-7-5-1<:-=<) asking that theregulari?ation issue be immediatel& resolved#urthermore even the med-arbi-ter %ho ordered theholding of the certification election refused to resolve the

protest on the ground that the issue raised thereincorrectl& pertains to the /urisdiction of the then labor minister# 7o opposition %as offered b& O&L'SAN6

+LAL&A# 2e hold that the issue of regulari?ation %as properl& addressed to the discretion of said former minister#Lao" Relatios $o"e" lao" iiste" "avel

a-sed is disc"etio i oldi tat tose o"e"s

ot eaed i Eaito"ial o" a"d aiteace se"vice

attaied te stat-s o0 "e-la" eploees ol o

Novee" 13, 19!#. 2e find and so hold that theformer labor minister gravel& abused his discretion inholding that those %orkers not engaged in /anitorial or &ard maintenance service attained the status of regular emplo&ees onl& on 7ovember 1" 1!=< %hich thusdeprived them of their constitutionall& protected right to

vote in the certification election and choose their rightful bargaining representative#

A"ticle 2! o0 te Lao" Code p"ovides 0o"

to ids o0 "e-la" eploees#NThe la% thus provides for t%o kinds of regular emplo&ees namel&0 (6)

those who are engaged to perform activities which are

usually necessary or desirable in the usual business or

trade of the employer 3 and (5) those who have rendered at least one year of service" whether continuous or

broken" with respect to the activity in which they are

employed#

&divid-al petitioe"s adE-ded to e "e-la"

eploees 0all -de" te secod cateo"#NTheindividual petitioners herein %ho have been ad/udged to be regular employees fall under the second categor&#These are the mechanics electricians machinistsmachine shop helpers %arehouse helpers painterscarpenters pipefitters and masons# @t is not disputed thatthese %orkers have been in the emplo& of J@'B+*Lfor more than one &ear at the time of the filing of the

petition for certification election b& J@*$A7-,*A*@A#

@t is more in keeping %ith the intent and spirit of the la%to rule that the status of regular emplo&ment attached to

the casual %orker on the da& immediatel& after the endof his first &ear of service#N +i to tei" let o0

se"vice it te copa, tese o"e"s ecae

"e-la" eploees, ope"atio o0 la, oe ea" a0te"

te e"e eploed O&M:RL? t"o- RANO #2hile the actual regulari?ation of these emplo&eesentails the mechanical act of issuing regular appointment

papers and compliance %ith such other operating procedures as ma& be adopted b& the emplo&er it ismore in keeping %ith the intent and spirit of the la% torule that the status of regular emplo&ment attaches to thecasual %orker on the da& immediatel& after the end of hisfirst &ear of service# To rule other%ise and to insteadmake their regulari?ation dependent on the happening of some contingenc& or the fulfillment of certainre9uirements is to impose a burden on the emplo&ee%hich is not sanctioned b& la%#

As lo as te eploee as "ede"ed at least oe

ea" o0 se"vice, e ecoes a "e-la" eploee it

"espect to te activit i ic e is eploed. Thatthe first stated position is the situation contemplated andsanctioned b& la% is further enhanced b& the absence of a statutor& limitation before regular status can be

29



LABOR RELATIONS

ac9uired b& a casual emplo&ee# The la% is eplicit# Aslong as the emplo&ee has rendered at least one &ear of service he becomes a regular emplo&ee %ith respect tothe activit& in %hich he is emplo&ed# The la% does not

provide the 9ualification that the emplo&ee must first beissued a regular appointment or must first be formall&declared as such before he can ac9uire a regular status#,bviousl& %here the la% does not distinguish nodistinction should be dra%n#

$AC%S

imberly$Clark *hilippines" 9nc# (J@'B+*Lfor brevit&) eecuted a t"ee6ea" collective a"aii

a"eeet (C:A) %ith nited imberly$Clark

,mployees nion$*hilippine &ransport and eneral orkers4 Drgani:ation (C,$*&D) %hichepired on Fune "; 1!=<#2ithin the '-day freedom period prior to the epirationof and during the negotiations for the rene%al of the

aforementioned CBA some members of the bargainingunit formed another union called GJimberl& @ndependent*abor $nion for olidarit& Activism and 7ationalism-,rgani?ed *abor Association in *ine @ndustries andAgriculture (J@*$A7-,*A*@A)#H

,n April 41 1!=< 9'+%N$D'%'9% filed a

petition for certification election in egional ,ffice 7o#@ 'inistr& of *abor and +mplo&ment (',*+)docketed as Case 7o# ,:-,-'-:-15-=<#5J@'B+*L and $JC+$-8T2, did not ob/ect to theholding of a certification election but ob/ected to theinclusion of the so-called contractual %orkers %hoseemplo&ment %ith J@'B+*L %as coursed through an

independent contractor ank 'anpo%er Compan&(A7J for short) as among the 9ualified voters#8ending resolution of the petition for

certification election b& the med-arbiter J@*$A7-,*A*@A filed a notice of strike on 'a& 6 1!=< %ith theBureau of *abor elations docketed as B* Case 7o#

7-5-1<:-=<< charging J@'B+*L %ith unfair labor practices based on the follo%ing alleged acts0 (1)dismissal of union members (J@*$A7-,*A*@A)3 (4)non-regulari?ation of casualsDcontractuals %ith over simonths service3 (") non-implementation of appreciation

bonus for 1!=4 and 1!="3 (:) non-pa&ment of minimum%ages (5) coercion of emplo&ees3 and (<) engaging in

CBA negotiations despite the pendenc& of a petition for certification election# This %as later amended to%ithdra% the charge of coercion but to add as ne%charges the dismissal of o9ue Fimene? and the non-

pa&ment of back%ages of the reinstated +merito uentes#Conciliation proceedings conducted b& the bureau

proved futile and J@*$A7-,*A*@A declared a strikeat J@'B+*L’s premises in an 8edro *aguna on 'a&4" 1!=<#

uring the pre-election conference #4 cas-al o"e"s

%ere challenged b& J@'B+*L and $JC+$-8T2,on the ground that the& are not emplo&ees of J@'B+*L but of A7J# @t %as agreed b& all the

parties that the <: voters shall be allo%ed to cast their votes but that their ballots shall be segregated and sub/ectto challenge proceedings# The certification election %asconducted on Ful& 1 1!=<#

,n Ful& 4 1!=< J@*$A7-,*A*@A filed %ith themedarbiter a G8rotest and 'otion to ,pen and CountChallenged otesH14 on the ground that the <: %orkersare emplo&ees of J@'B+*L %ithin the meaning of Article 414(e) of the *abor Code# ,n Ful& 6 1!=<

J@'B+*L filed an opposition to the protest andmotion asserting that there is no emplo&er-emplo&eerelationship bet%een the casual %orkers and thecompan& and that the med-arbiter has no /urisdiction torule on the issue of the status of the challenged %orkers%hich is one of the issues covered b& the assumptionorder# The med-arbiter opted not to rule on the protestuntil the issue of regulari?ation has been resolved b&',*+#The petition of J@*$A7-,*A*@A avers that therespondent ecretar& of *abor andDor the former 'inister of *abor have acted %ith grave abuse of discretionandDor %ithout /urisdiction in (1) ruling on the issue of

bargaining representation and declaring respondent$JC+$-8T2, as the collective bargainingrepresentative of all regular rank-and-file emplo&ees of the respondent compan&3 (4) holding that petitioners arenot entitled to vote in the certification election3 (")considering the regulari?ation of petitioners (%ho are not

/anitors and maintenance emplo&ees) to be effective onl&

on the date of the disputed decision3 (:) declaring petitioners %ho are assigned /anitorial and &ardmaintenance %ork to be emplo&ees of respondent A7J and not entitled to be regulari?ed3 (5) not a%arding to

petitioners differential pa& arising out of such illegal%ork scheme3 and (<) ordering the mere reinstatement of

petitioner Fimene?#

&SS'S

(1) 2hether or not former 'inister anche?committed a grave abuse of discretion amounting to lack of /urisdiction in declaring respondent $JC+$-8T2,as the certified bargaining representative of the regular

emplo&ees of J@'B+*L after ruling that the <: casual%orkers %hose votes are being challenged %ere notentitled to vote in the certification election3(4) 2,7said %orkers not performing /anitorial or &ardmaintenance service became regular emplo&ees of J@'B+*L and thus entitled to vote

L*

1) N+. J@*$A7-,*A*@A contends that afterfinding that the <: %orkers are regularemplo&ees of J@'B+*L 'inister anche?should have remanded the representation case tothe medarbiter instead of declaring $JC+$-

8T2, as the %inner in the certificationelection and setting aside the med-arbiter’sorder %hich allo%ed the <: casual %orkers tocast their votes#

espondents argue that since the issues of regulari?ationand representation are closel& interrelated and that aresolution of the former inevitabl& affects the latter it%as necessar& for the former labor minister to takecogni?ance of the representation issue3 that no timel&motion for reconsideration or appeal %as made from hisdecision of 7ovember 1" 1!=< %hich has become finaland eecutor&3 and that the aforesaid decision %asimpliedl& accepted b& J@*$A7-,*A*@A %hen itdemanded from J@'B+*L the issuance of regular appointments to its affected members in compliance %ithsaid decision hence petitioner emplo&ees are no%estopped from 9uestioning the legalit& thereof#%e Co-"t -pold te a-to"it o0 0o"e" Miiste"

SaceH to ass-e E-"isdictio ove" te iss-e o0 te

"e-la"iHatio o0 te #4 cas-al o"e"s %hich fact isnot even disputed b& J@*$A7,*A*@A as ma& begleaned from its re9uest for an interim order in the noticeof strike case (B*-7-5-1<:-=<) asking that theregulari?ation issue be immediatel& resolved#

30



LABOR RELATIONS

urthermore even the med-arbiter %ho ordered theholding of the certification election refused to resolve the

protest on the ground that the issue raised thereincorrectl& pertains to the /urisdiction of the then labor minister# 7o opposition %as offered b& J@*$A7-,*A*@A# 2e hold that the issue of regulari?ation %as

properl& addressed to the discretion of said former minister#

2)?S# ,n the basis of the foregoing circumstancesand as a conse9uence of their status as regular emplo&ees those %orkers not perforce /anitorial and&ard maintenance service %ere performace entitledto the pa&ment of salar& differential cost of livingallo%ance 1"th month pa& and such other benefitsetended to regular emplo&ees under the CBA fromthe da& immediatel& follo%ing their first &ear of service in the compan&# These regular emplo&ees arelike%ise entitled to vote in the certification electionheld in Ful& 1 1!=<# Conse9uentl& the votes cast b&

those emplo&ees not performing /anitorial and &ardmaintenance service %hich form part of the <:challenged votes should be opened counted andconsidered for the purpose of determining thecertified bargaining representative#

The court hold that the former labor minister gravel& abused his discretion in holding that those%orkers not engaged in /anitorial or &ardmaintenance service attained the status of regular emplo&ees onl& on 7ovember 1" 1!=< %hich thusdeprived them of their constitutionall& protectedright to vote in the certification election and choosetheir rightful bargaining representative.

R'L&NG

The /udgment is hereb& rendered in ## 7o#66<4!01# ,rdering the med-arbiter in Case 7o# ;:-,-'-:-15-=< to open and count the <: challenged votes andthat the union %ith the highest number of votes bethereafter declared as the dul& elected certified

bargaining representative of the regular emplo&ees of J@'B+*L34# ,rdering J@'B+*L to pa& the %orkers %ho have

been regulari?ed their differential pa& %ith respect to

minimum %age cost of living allo%ance 1"th month pa& and benefits provided for under the applicablecollective bargaining agreement from the time the&

became regular emplo&ees#All other aspects of the decision appealed from %hichare not so modified or affected thereb& are hereb&A@'+# The temporar& restraining order issued in## 7o# 66<4! is hereb& made permanent#

EEEEEEEEEEEEEEEEEEEEEEEEEEE 22) Ce- Ma"ie :eac Reso"t vs. Natioal Lao"

Relatios Coissio, 414 SCRA 173/ G.R. No.

143252. +ctoe" 23, 23

Lao" La >"oatioa" ploees Sec-"it o0

%e-"e &t is settled tat ile p"oatioa"

eploees do ot eEo pe"aet stat-s, te a"e

etitled to te costit-tioal p"otectio o0 sec-"it o0

te-"e#N@t is settled that %hile probationar& emplo&eesdo not en/o& permanent status the& are entitled to theconstitutional protection of securit& of tenure# Their emplo&ment ma& onl& be terminated for /ust cause or %hen the& fail to 9ualif& as regular emplo&ees inaccordance %ith reasonable standards made kno%n to

them b& their emplo&er at the time of engagement andafter due process#

Aadoet <o"ds ad >"ases &o

constitute abandonment" there must be clear proof of deliberate and unjustified intent to sever the employer$

employee relationship#> @ndeed %e find no indicationthat respondents have sho%n b& some overt acts their intention to sever their emplo&ment in petitioner compan&# To constitute abandonment there must be clear

proof of deliberate and un/ustified intent to sever theemplo&er-emplo&ee relationship# Clearl& the operativefactor is still the emplo&er’s ultimate act of putting anend to his emplo&ment#

&he filing of a complaint for illegal dismissal is

inconsistent with the charge of abandonment" for an

employee who takes steps to protest his dismissal cannot by logic be said to have abandoned his work#> .ererespondents did not report back for %ork because the&%ere %arned b& petitioner asaki not to return# Butimmediatel& the& filed %ith the *abor Arbiter’s ,ffice a

complaint for illegal dismissal# @t is a settled doctrine thatthe filing of a complaint for illegal dismissal isinconsistent %ith the charge of abandonment for anemplo&ee %ho takes steps to protest his dismissal cannot

b& logic be said to have abandoned his %ork# Being in the nature of a /trial period"1 the essence of a

probationary period of employment fundamentally lies in

the purpose or objective sought to be attained by boththe employer and the employee during said period #N That respondents failed to 9ualif& for their positions ,

suffice it to state that at the time the& %ere dismissedthe& %ere still in a Gtrial periodH or probationar& period#Being in the nature of a Gtrial periodH the essence of a

probationar& period of emplo&ment fundamentall& lies inthe purpose or ob/ective sought to be attained b& both theemplo&er and the emplo&ee during said period# 2hile theemplo&er observes the fitness propriet& and efficienc& of a probationer to ascertain %hether he is 9ualified for

permanent emplo&ment the probationer on the other hand seeks to prove to the emplo&er that he has the9ualifications to meet the reasonable standards for

permanent emplo&ment %hich obviousl& %ere madekno%n to him# To reiterate in the case at bar far fromallo%ing the respondents to prove that the& possessed the9ualifications to meet the reasonable standards for their

permanent emplo&ment petitioners peremptoril&

dismissed them from the service#:acaes %bsent the grounds for termination of a

probationary employee" he is entitled to continued

employment even beyond his probationary period #N,nanother tack petitioners’ argument that the AppellateCourt’s a%ard of full back%ages and separation pa& ineffect unilaterall& etended respondents’ <-month

probationar& emplo&ment is bereft of merit# @n 8hilippine'anpo%er ervices @nc# vs# 7*C %e held that Gabsentthe grounds for termination of a probationar& emplo&eehe is entitled to continued emplo&ment even be&ond the

probationar& period#H

$AC%S

8robationar& emplo&ees need strong protectionfrom the eploitation of emplo&ers since the& are usuall&the lo%liest of the lo%l& and the most vulnerable toabuses of management %ho %ould rather suffer insilence than risk losing their /obs#

Cebu Marine Beach -esort (herein petitioner compan&) a single proprietorship o%ned b& ictor

31



LABOR RELATIONS

ualan commenced its operations sometime in Fanuar&1!!; %ith the recruitment of its emplo&ees includingic odrigo odrigue? 'anulita illegas and *orna #@got respondents#,n the last %eek of 'arch 1!!; %hen Fapanese tourists

began arriving at the resort petitioner compan& becamefull& operational# @nasmuch as the beach resort %asintended to cater principall& to Fapanese touristsrespondents had to undergo a special training in Fapanesecustoms traditions discipline as %ell as hotel and resortservices# This special training %as supervised b&Tsu&oshi asaki also a petitioner#uring a seminar conducted on 'a& 4: 1!!; petitioner asaki suddenl& scolded respondents and hurled broomsfloor maps iron tra&s fire hoses and other things atthem# @n protest respondents staged a %alk-out andgathered in front of the resort#@mmediatel& petitioner asaki reacted b& shouting atthem to go home and never to report back to %ork#.eeding his directive respondents left the premises#

+ventuall& the& filed %ith the egional ArbitrationBranch at Cebu Cit& a complaint for illegal dismissal andother monetar& claims against petitioners#,n 'a& 4= 1!!; petitioner compan& through its actinggeneral manager ,felia 8elae? also a petitioner sentletters to respondents re9uiring them to eplain %h& the&should not be terminated from emplo&ment on thegrounds of abandonment of %ork and failure to 9ualif&%ith the standards for probationar& emplo&ees#

The *abor Arbiter rendered a ecision dated 'arch 4"1!!" dismissing respondents’ complaint but directingthem to immediatel& report back to %ork#

,n appeal the 7ational *abor elations Commission(7*C) in its ecision dated Fune 4= 1!!: reversedthe *abor Arbiter’s ecision declaring that therespondents %ere dismissed illegall& and ordering their reinstatement %ith pa&ment of full back%ages from 'a&4: 1!!; up to their actual reinstatement or in lieuthereof the pa&ment of their respective separation pa&(e9uivalent to one month salar&) from 'a& 4: 1!!; upto the date the& %ere supposed to be reinstated as %ellas attorne&’s fees (e9uivalent to 1;I of the totalmonetar& a%ard)#

,n ebruar& 4= 1!!5 the 7*C issued a esolution

declaring that the back%ages shall correspond onl& to the period from 'a& 4: 1!!; (the date of their dismissal)until 'arch 4" 1!!" (%hen the& %ere ordered reinstated

b& the *abor Arbiter) sub/ect to the deduction of their earnings from other sources during the pendenc& of theappeal#,n 'arch 44 1!!5 petitioners filed %ith this Court a

petition for certiorari prohibition and in/unction %ith pra&er for the issuance of a temporar& restraining order#

,n 7ovember 5 1!!! the Court of Appealsrendered its ecision affirming %ith modification theecision and esolution of the 7*C# .ere petitionersterminated respondents’ probationar& emplo&ment on thegrounds of abandonment and failure to 9ualif& for the

positions for %hich the& %ere emplo&ed#

&SS'

2hether respondents %ere illegall& dismissedfrom emplo&ment b& 8etitioner Compan&

L*

?S. @t is settled that %hile probationar&emplo&ees do not en/o& permanent status the& are

entitled to the constitutional protection of securit& of tenure# Their emplo&ment ma& onl& be terminated for

/ust cause or %hen the& fail to 9ualif& as regular emplo&ees in accordance %ith reasonable standardsmade kno%n to them b& their emplo&er at the time of engagement and after due process#That respondents failed to 9ualif& for their positionssuffice it to state that at the time the& %ere dismissedthe& %ere still in a Gtrial periodH or probationar& period#Being in the nature of a Gtrial periodH the essence of a

probationar& period of emplo&ment fundamentall& lies inthe purpose or ob/ective sought to be attained b& both theemplo&er and the emplo&ee during said period# 2hile theemplo&er observes the fitness propriet& and efficienc& of a probationer to ascertain %hether he is 9ualified for

permanent emplo&ment the probationer on the other hand seeks to prove to the emplo&er that he has the9ualifications to meet the reasonable standards for

permanent emplo&ment %hich obviousl& %ere madekno%n to him#6 To reiterate in the case at bar far from

allo%ing the respondents to prove that the& possessed the9ualifications to meet the reasonable standards for their

permanent emplo&ment petitioners peremptoril&dismissed them from the service#

R'L&NG

The assailed ecision and esolution of the Court of Appeals dated 7ovember 5 1!!! and April 1= 4;;; arehereb& A@'+ 2@T. ',@@CAT@,7 in thesense that in lieu of reinstatement respondents area%arded separation pa& e9uivalent to at least one month

pa& or one month pa& for ever& &ear of service%hichever is higher3 and their full back%ages other

privileges and benefits or their monetar& e9uivalentduring the period of their dismissal up to their supposedactual reinstatement#Costs against petitioners#

EEEEEEEEEEEEEEEEEEEEEEEEEEE 23) >il. Lo *istace %elepoe Co. vs. NLRC, 1#4

SCRA #71/ No. L6!#9. A--st 23, 19!!

Lao" &lleal *isissal Sepa"atio >a R-le i te

Lao" Code tat a pe"so disissed 0o" ca-se is ot

etitled to sepa"atio pa Jceptio is ased -po

e-it coside"atios *e0iitio ad cocept o0

e-it#NThe rule embodied in the *abor Code is that a

person dismissed for cause as defined therein is notentitled to separation pa&# The cases above citedconstitute the eception based upon considerations of e9uit&# +9uit& has been defined as /ustice outside la%

being ethical rather than /ural and belonging to thesphere of morals than of la%# @t is grounded on the

precepts of conscience and not on an& sanction of positive la%# .ence it cannot prevail against theepressed provision of the labor la%s allo%ing dismissalof emplo&ees for cause and %ithout an& provision for separation pa&#

G"at o0 sepa"atio pa is ot e"el ased o e-it

-t o te p"ovisios o0 te Costit-tio o te

p"ootio o0 social E-stice ad p"otectio o0 te

"its o0 te o"e"s. trictl& speaking ho%ever it isnot correct to sa& that there is no epress /ustification for the grant of separation pa& to la%full& dismissedemplo&ees other than the abstract consideration of e9uit&# The reason is that our Constitution is replete %ith

positive commands for the promotion of social /usticeand particularl& the protection of the rights of the%orkers# The enhancement of their %elfare is one of the

32



LABOR RELATIONS

primar& concerns of the present charter# @n fact insteadof confining itself to the general commitment to thecause of labor in Article @@ on the eclaration of 8rinciples of tate 8olicies the ne% Constitutioncontains a separate article devoted to the promotion of social /ustice and human rights %ith a separate sub-topicfor labor# Article W@@@ epressl& recogni?es the vital roleof labor hand in hand %ith management in theadvancement of the national econom& and the %elfare of the people in general# The categorical mandates in theConstitution for the improvement of the lot of the%orkers are more than sufficient basis to /ustif& thea%ard of separation pa& in proper cases even if thedismissal be for cause#

Aa"d o0 sepa"atio pa disti-ised

G"at o0 sepa"atio pa to te disissed eploee is

E-st e"e te sepa"atio as d-e to valid -t

ie-ito-s ca-ses as 0ail-"e to copl it o"

stada"ds G"at o0 aa"d is ased o te social

E-stice polic eve i0 sepa"atio is 0o" ca-se. There

should be no 9uestion that %here it comes to such valid but not ini9uitous causes as failure to compl& %ith %ork standards the grant of separation pa& to the dismissedemplo&ee ma& be both /ust and compassionate

particularl& if he has %orked for some time %ith thecompan&# or eample a subordinate %ho hasirreconcilable polic& or personal differences %ith hisemplo&er ma& be validl& dismissed for demonstrated lossof confidence %hich is an allo%able ground# A %orkingmother %ho has to be fre9uentl& absent because she hasalso to take care of her child ma& also be removed

because of her poor attendance this being another authori?ed ground# @t is not the emplo&ee’s fault if he

does not have the necessar& aptitude for his %ork but onthe other hand the compan& cannot be re9uired tomaintain him /ust the same at the epense of efficienc&of its operations# .e too ma& be validl& replaced# $nder these and similar circumstances ho%ever the a%ard tothe emplo&ee of separation pa& %ould be sustainableunder the social /ustice polic& even if the separation isfor cause#

<e"e te ca-se o0 sepa"atio is o"e

se"io-s ta e"e ie00iciec, te aa"d is ot

E-sti0ied. But %here the cause of the separation is moreserious that mere inefficienc& the generosit& of the la%must be more discerning# There is no doubt it is

compassionate to give separation pa& to a salesman if heis dismissed for his inabilit& to fill his 9uota but surel& hedoes not deserve such generosit& if his offense ismisappropriation of the receipt of his sales# This is nolonger mere incompetence but clear dishonest&# Asecurit& guard found sleeping on the /ob is doubtlesssub/ect to dismissal but ma& be allo%ed separation pa&since his conduct %hile inept is not depraved# But if he%as in fact not reall& sleeping but sleeping %ith a

prostitute during his tour of dut& and in the compan& premises the situation is changed completel&# This is notonl& inefficienc& but immoralit& and the grant of separation pa& %ould be entirel& un/ustified#

.enceforth sepa"atio pa sall e alloed

ol i tose istaces e"e te eploee is validl

disissed 0o" ca-ses ote" ta se"io-s iscod-ct o"

tose "e0lecti o is o"al ca"acte" <e"e te

"easo 0o" te valid disissal is ait-al

is-o"diatio o" a o00ese ivolvi o"al

t-"pit-de, te eploe" a ot e "e-i"ed to ive

te disissed eploee sepa"atio pa o" 0iacial

assistace#N2e hold that henceforth separation pa&shall be allo%ed as a measure of social /ustice onl& inthose instances %here the emplo&ee is validl& dismissed

for causes other than serious misconduct or thosereflecting on his moral character# 2here the reason for the valid dismissal is for eample habitual intoicationor an offense involving moral turpitude like theft or illicit seual relations %ith a fello% %orker the emplo&er ma& not be re9uired to give the dismissed emplo&eeseparation pa& of financial assistance or %hatever other name it is called on the ground of social /ustice#

A cot"a" "-le o-ld ave te e00ect o0

"ea"di "ate" ta p-isi te e""i eploee

0o" is o00ese#NA contrar& rule %ould as the petitioner correctl& argues have the effect of re%arding rather than

punishing the erring emplo&ee for his offense# And %e donot agree that the punishment is his dismissal onl& andthat the separation pa& has nothing to do %ith the %ronghe has committed# ,f course it has# @ndeed if theemplo&ee %ho steals from the compan& is grantedseparation pa& even as he is validl& dismissed it is notunlikel& that he %ill commit a similar offense in his netemplo&ment because he thinks he can epect a like

lenienc& if he is again found out# This kind of misplacedcompassion is not going to do labor in general an& goodas it %ill encourage the infiltration of its ranks b& those%ho do not deserve the protection and concern of theConstitution#

%e polic o0 social E-stice is ot iteded to

co-teace "odoi. The polic& of social /usticeis not intended to countenance %rongdoing simpl&

because it is committed b& the underprivileged# At best itma& mitigate the penalt& but it certainl& %ill not condonethe offense# Compassion for the poor is an imperative of ever& humane societ& but onl& %hen the recipient is nota rascal claiming an undeserved privilege# ocial /ustice

cannot be permitted to be the refuge of scoundrels an&more than can e9uit& be an impediment to the punishment of the guilt&# Those %ho invoke social /ustice ma& do so onl& if their hands are clean and their motives blameless and not simpl& because the& happento be poor# This great polic& of our Constitution is notmeant for the protection of those %ho have proved the&are not %orth& of it like the %orkers %ho have taintedthe cause of labor %ith the blemishes of their o%ncharacter#

G"at o0 sepa"atio pa to te p"ivate

"espodet o as ee disissed 0o" disoest, is

E-sti0ied Reaso#NAppl&ing the above considerations

%e hold that the grant of separation pa& in the case at bar is un/ustified# The private respondent has been dismissedfor dishonest& as found b& the labor arbiter and affirmed

b& the 7*C and as she herself has impliedl& admitted#The fact that she has %orked %ith the 8*T for morethan a decade if it is to be considered at all should betaken against her as it reflects a regrettable lack of lo&alt& that she should have strengthened instead of

betra&ing during all of her 1; &ears of service %ith thecompan&# @f regarded as a /ustification for moderating the

penalt& of dismissal it %ill actuall& become a pri?e for dislo&alt& perverting the meaning of social /ustice andundermining the efforts of labor to cleanse its ranks of allundesirables#Sepa"atio pa, i0 0o-d d-e -de" te ci"c-staces

o0 eac case, so-ld e cop-ted at te "ate o0 oe

ot sala" 0o" eve" ea" o0 se"vice. The Courtalso rules that the separation pa& if found due under thecircumstance of each case should be computed at therate of one month salar& for ever& &ear of serviceassuming the length of such service is deemed material#This is %ithout pre/udice to the application of specialagreements bet%een the emplo&er and the emplo&ee

33



LABOR RELATIONS

stipulating a higher rate of computation and providingfor more benefits to the discharged emplo&ee#

$AC%S

'aril&n Abuca& a traffic operator of the8hilippine *ong istance Telephone Compan& %asaccused b& t%o complainants of having demanded andreceived from them the total amount of 8" =;;#;; inconsideration of her promise to facili- tate approval of their applications for telephone installation#1@nvestigated and heard she %as found guilt& as chargedand accordingl& separated from the service# he %ent tothe 'inistr& of *abor and +mplo&ment claiming she had

been illegall& removed# After consideration of theevidence and arguments of the parties the compan& %assustained and the complaint %as dismissed for lack of merit#

Both the petitioner and the private respondentappealed to the 7ational *abor elations Board %hichupheld the said decision in toto and dismissed the

appeals#: The private respondent took no further actionthereb& impliedl& accepting the validit& of her dismissal#The petitioner ho%ever is no% before us to 9uestion theaffirmance of the above-9uoted a%ard as having beenmade %ith grave abuse of discretion#

The position of the petitioner is simpl& stated0 @tis conceded that an emplo&ee illegall& dismissed isentitled to reinstatement and back%ages as re9uired b&the labor la%s# .o%ever an emplo&ee dismissed for cause is entitled to neither reinstatement nor back%agesand is not allo%ed an& relief at all because his dismissalis in accordance %ith la%# @n the case of the private

respondent she has been a%arded financial assistancee9uivalent to ten months pa& corresponding to her 1;-&ear service in the compan& despite her removal for cause# he is therefore in effect re%arded rather than

punished for her dishonest& and %ithout an& legalauthori?ation or /ustification# The a%ard is made on theground of e9uit& and compassion %hich cannot be asubstitute for la%# 'oreover such a%ard puts a premiumon dishonest& and encourages instead of deterringcorruption#

The public respondent claims that the emplo&ee issufficientl& punished %ith her dismissal# The grant of

financial assistance is not intended as a re%ard for her offense but merel& to help her for the loss of her emplo&ment after %orking faithfull& %ith the compan&for ten &ears# @n support of this position the olicitor eneral cites the cases of irestone Tire and ubber Compan& of the 8hilippines v# *ariosa and oco v#'ercantile Corporation of avao %here the emplo&ees%ere dismissed for cause but %ere nevertheless allo%edseparation pa& on grounds of social and compassionate

/ustice# As the Court put it in the irestone case0G@n vie% of the foregoing 2e rule that irestone hadvalid grounds to dispense %ith the services of *ariosaand that the 7*C acted %ith grave abuse of discretionin ordering his reinstatement# .o%ever considering that*ariosa had %orked %ith the compan& for eleven &ears%ith no kno%n previous bad record the ends of socialand compassionate /ustice %ould be served if he is paidfull separation pa& but not reinstatement %ithout

back%ages b& the 7*C#

&SS'

2,7 the a%ard of separation pa& in the formof financial assistance to an emplo&ee %ho had been

dismissed for cause as found b& the public respondent is proper

L*

N+. The court hold that the grant of separation pa& in the case at bar is un/ustified# The privaterespondent has been dismissed for dishonest& as found

b& the labor arbiter and affirmed b& the 7*C and as sheherself has impliedl& admitted# The fact that she has%orked %ith the 8*T for more than a decade if it is to

be considered at all should be taken against her as itreflects a regrettable lack of lo&alt& that she should havestrengthened instead of betra&ing during all of her 1;&ears of service %ith the compan&# @f regarded as a

/ustification for moderating the penalt& of dismissal it%ill actuall& become a pri?e for dislo&alt& perverting themeaning of social /ustice and undermining the efforts of labor to cleanse its ranks of all undesirables#The Court also rules that the separation pa& if found dueunder the circumstances of each case should be

computed at the rate of one month salar& for ever& &ear of service assuming the length of such service is deemedmaterial# This is %ithout pre/udice to the application of special agreements bet%een the emplo&er and theemplo&ee stipulating a higher rate of computation and

providing for more benefits to the discharged emplo&ee#

R'L&NG

The petition is GRAN%*. The challengedresolution of eptember 44 1!=6 is A@'+ in totoecept for the grant of separation pa& in the form of financial assistance %hich is hereb& @A**,2+#The temporar& restraining order dated 'arch 4" 1!== is

*@T+# @t is so ordered# EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE 24) Aao vs. Natioal Lao" Relatios

Coissio, 442 SCRA 573/ G.R. No. 15!#93

Novee" 17, 24

A:AN*+NMN% +$ <+RO

Lao" La Adiist"ative La 9f the factual

findings of the N'-C and the 'abor %rbiter areconflicting" the reviewing court may delve into the

records and e0amine for itself the !uestioned findings#N @t is %ell-settled that findings of fact of 9uasi-/udicial

agencies like the 7*C are accorded not onl& respect but even finalit& if the findings are supported b&substantial evidence# This is especiall& so %hen suchfindings %ere affirmed b& the Court of Appeals#.o%ever if the factual findings of the 7*C and the*abor Arbiter are conflicting as in this case therevie%ing court ma& delve into the records and eaminefor itself the 9uestioned findings# Accordingl& the Courtof Appeals after a careful revie% of the facts ruled that

petitioners’ dismissal %as for a /ust cause# The& hadabandoned their emplo&ment and %ere alread& %orkingfor another emplo&er#

*isissal o0 ploees3 &o dismiss an employee" the

law re!uires not only the e0istence of a just and valid

cause but also enjoins the employer to give the employee

the opportunity to be heard and to defend himself#> Todismiss an emplo&ee the la% re9uires not onl& theeistence of a /ust and valid cause but also en/oins theemplo&er to give the emplo&ee the opportunit& to beheard and to defend himself# Article 4=4 of the *abor Code enumerates the /ust causes for termination b& theemplo&er0 (a) serious misconduct or willful disobedience

34



LABOR RELATIONS

by the employee of the lawful orders of his employer or

the latter4s representative in connection with the

employee4s work; (b ) gross and habitual neglect by the

employee of his duties3 (c) fraud or willful breach by theemployee of the trust reposed in him by his employer or

his duly authori:ed representative; (d) commission of a

crime or offense by the employee against the person of

his employer or any immediate member of his family or his duly authori:ed representative3 and (e ) other causes

analogous to the foregoing#

Moonlig"ting; %ubcontracting for anot"er company

clearly s"o1s t"e intention to se0er t"e employer-

employee relations"ip; 5"e record of an employee is a

rele0ant consideration in determining t"e penalty t"at

s"ould be meted out to "im#N@n ebruar& 1!!! petitioners %ere fre9uentl& absent having subcontractedfor an installation %ork for another compan&#ubcontracting for another compan& clearl& sho%ed theintention to sever the emplo&er-emplo&ee relationship

%ith private respondent# This %as not the first time the&did this# @n Fanuar& 1!!< the& did not report for %ork

because the& %ere %orking for another compan&# 8rivaterespondent at that time %arned petitioners that the&%ould be dismissed if this happened again# 8etitionersdisregarded the %arning and ehibited a clear intentionto sever their emplo&er-emplo&ee relationship# Therecord of an emplo&ee is a relevant consideration indetermining the penalt& that should be meted out to him#

5"e employer may not be compelled to continue to

employ suc" persons 1"ose continuance in t"e ser0ice

1ill patently be inimical to "is interests#NThe la%

imposes man& obligations on the emplo&er such as providing /ust compensation to %orkers observance of the procedural re9uirements of notice and hearing in thetermination of emplo&ment# ,n the other hand the la%also recogni?es the right of the emplo&er to epect fromits %orkers not onl& good performance ade9uate %ork and diligence but also good conduct and lo&alt&# Theemplo&er ma& not be compelled to continue to emplo&such persons %hose continuance in the service %ill

patentl& be inimical to his interests#

8ismissals based on :ust causes contemplate acts or

omissions attributable to t"e employee 1"ile dismissals

based on aut"oried causes in0ol0e grounds under t"e abor Code 1"ic" allo1 t"e employer to terminate

employees#Nismissals based on /ust causescontemplate acts or omissions attributable to theemplo&ee %hile dismissals based on authori?ed causesinvolve grounds under the *abor Code %hich allo% theemplo&er to terminate emplo&ees# A termination for anauthori?ed cause re9uires pa&ment of separation pa&#2hen the termination of emplo&ment is declared illegalreinstatement and full back%ages are mandated under Article 46!# @f reinstatement is no longer possible %herethe dismissal %as un/ust separation pa& ma& be granted#ame3 ame3 ue 8rocess3 7otice e9uirement38rocedurall& (1) if the dismissal is based on a /ust causeunder Article 4=4 of the *abor Code the emplo&er mustgive the emplo&ee t%o %ritten notices and a hearing or opportunit& to be heard if re9uested b& the emplo&ee

before terminating the emplo&ment and (4) if thedismissal is based on authori?ed causes under Articles4=" and 4=: the emplo&er must give the emplo&ee andthe epartment of *abor and +mplo&ment %rittennotices "; da&s prior to the effectivit& of his separation3ailure to observe due process in a dismissal for /ust or authori?ed cause does not invalidate the dismissal but

makes the emplo&er liable for non-compliance %ith the procedural re9uirements of due process#N8rocedurall&(1) if the dismissal is based on a /ust cause under Article4=4 the emplo&er must give the emplo&ee t%o %rittennotices and a hearing or opportunit& to be heard if re9uested b& the emplo&ee before terminating theemplo&ment0 a notice specif&ing the grounds for %hichdismissal is sought a hearing or an opportunit& to beheard and after hearing or opportunit& to be heard anotice of the decision to dismiss3 and (4) if the dismissalis based on authori?ed causes under Articles 4=" and4=: the emplo&er must give the emplo&ee and theepartment of *abor and +mplo&ment %ritten notices ";da&s prior to the effectivit& of his separation# rom theforegoing rules four possible situations ma& be derived0(1) the dismissal is for a /ust cause under Article 4=4 of the *abor Code for an authori?ed cause under Article4=" or for health reasons under Article 4=: and due

process %as observed3 (4) the dismissal is %ithout /ust or authori?ed cause but due process %as observed3 (") the

dismissal is %ithout /ust or authori?ed cause and there%as no due process3 and (:) the dismissal is for /ust or authori?ed cause but due process %as not observed# @nthe first situation the dismissal is undoubtedl& valid andthe emplo&er %ill not suffer an& liabilit&# @n the secondand third situations %here the dismissals are illegalArticle 46! mandates that the emplo&ee is entitled toreinstatement %ithout loss of seniorit& rights and other

privileges and full back%ages inclusive of allo%ancesand other benefits or their monetar& e9uivalent computedfrom the time the compensation %as not paid up to thetime of actual reinstatement# @n the fourth situation thedismissal should be upheld# 2hile the procedural

infirmit& cannot be cured it should not invalidate thedismissal# .o%ever the emplo&er should be held liablefor non-compliance %ith the procedural re9uirements of due process#

$AC%S

8rivate respondent -iviera Eome 9mprovements" 9nc# is engaged in the business of sellingand installing ornamental and construction materials# @templo&ed petitioners irgilio Agabon and Fenn& Agabonas g&psum board and cornice installers on Fanuar& 41!!44 until ebruar& 4" 1!!! %hen the& %ere dismissedfor abandonment of %ork#

8etitioners then filed a complaint for illegal dismissaland pa&ment of mone& claims" and on ecember 4=1!!! the *abor Arbiter rendered a decision declaring thedismissals illegal and ordered private respondent to pa&the monetar& claims#,n appeal the 7*C reversed the *abor Arbiter becauseit found that the petitioners had abandoned their %orkand %ere not entitled to back%ages and separation pa&#The other mone& claims a%arded b& the *abor Arbiter %ere also denied for lack of evidence#5$pon denial of their motion for reconsideration

petitioners filed a petition for certiorari %ith the Court of Appeals#The Court of Appeals in turn ruled that the dismissal of the petitioners %as not illegal because the& hadabandoned their emplo&ment but ordered the pa&ment of mone& claims#

8etitioners assert that the& %ere dismissed because the private respondent refused to give themassignments unless the& agreed to %ork on a /pakyaw1

basis %hen the& reported for dut& on ebruar& 4" 1!!!#The& did not agree on this arrangement because it %ouldmean losing benefits as ocial ecurit& &stem ()members# 8etitioners also claim that private respondent

35



LABOR RELATIONS

did not compl& %ith the t%in re9uirements of notice andhearing#=8rivate respondent on the other hand maintained that

petitioners %ere not dismissed but had abandoned their %ork#! @n fact private respondent sent t%o letters to thelast kno%n addresses of the petitioners advising them toreport for %ork# 8rivate respondent’s manager eventalked to petitioner irgilio Agabon b& telephonesometime in Fune 1!!! to tell him about the ne%assignment at 8acific 8la?a To%ers involving :;;;;s9uare meters of cornice installation %ork# .o%ever

petitioners did not report for %ork because the& hadsubcontracted to perform installation %ork for another compan&# 8etitioners also demanded for an increase intheir %age to 84=;#;; per da&# 2hen this %as notgranted petitioners stopped reporting for %ork and filedthe illegal dismissal case#

&SS'

2,7 the petitioners %ere legall& dismissed for

abandonment of %ork

L*

?S. Abandonment is the deliberate andun/ustified refusal of an emplo&ee to resume hisemplo&ment# @t is a form of neglect of dut& hence a /ustcause for termination of emplo&ment b& the emplo&er#or a valid finding of abandonment these t%o factorsshould be present0 (1) the failure to report for %ork or absence %ithout valid or /ustifiable reason3 and (4) aclear intention to sever emplo&er-emplo&ee relationship%ith the second as the more determinative factor %hichis manifested b& overt acts from %hich it ma& be

deduced that the emplo&ees has no more intention to%ork# The intent to discontinue the emplo&ment must besho%n b& clear proof that it %as deliberate andun/ustified#

R'L&NG

@n vie% of the foregoing the petition is*N&*. The decision of the Court of Appeals datedFanuar& 4" 4;;" in CA-## 8 7o# <";16 finding that

petitioners Fenn& and irgilio Agabon abandoned their %ork and ordering private respondent to pa& each of the

petitioners holida& pa& for four regular holida&s from1!!< to 1!!= in the amount of 8<54;#;; service

incentive leave pa& for the same period in the amount of 8"455#;; and the balance of irgilio Agabon’s thirteenthmonth pa& for 1!!= in the amount of 8415;#;; isA@'+ %ith the ',@@CAT@,7 that privaterespondent iviera .ome @mprovements @nc# is further ,++ to pa& each of the petitioners the amount of 8";;;;#;; as nominal damages for non-compliance%ith statutor& due process#

EEEEEEEEEEEEEEEEEEEEEEEEEE 25) >e"eH vs. >ilippie %ele"ap ad %elepoe

Copa, 5!4 SCRA 11/ G.R. No. 1524! Ap"il 7,

29

Lao" La %e"iatio o0 ploet Loss o0

%"-st ad Co0idece 'less d-l p"oved o"

s-00icietl s-statiated ote"ise, ipa"tial

t"i-als so-ld ot "el ol o te stateet o0 te

eploe" tat it as lost co0idece i its eploee#N 2ithout undermining the importance of a shipping order or re9uest %e find respondents’ evidence insufficient toclearl& and convincingl& establish the facts from %hichthe loss of confidence resulted# ,ther than their bareallegations and the fact that such documents came into

petitioners’ hands at some point respondents should have

provided evidence of petitioners’ functions the etent of their duties the procedure in the handling and approvalof shipping re9uests and the fact that no personnel other than petitioners %ere involved# There %as therefore a

patent paucit& of proof connecting petitioners to thealleged tampering of shipping documents# The alterationson the shipping documents could not reasonabl& beattributed to petitioners because it %as never proven that

petitioners alone had control of or access to thesedocuments# $nless dul& proved or sufficientl&substantiated other%ise impartial tribunals should notrel& onl& on the statement of the emplo&er that it has lostconfidence in its emplo&ee#<ill0-l "eac te eploee o0 te t"-st "eposed i

i is eploe" o" d-l a-to"iHed

"ep"esetative is a E-st ca-se 0o" te"iatio Loss o0

co0idece so-ld ot e si-lated. 2illful breach b& the emplo&ee of the trust reposed in him b& hisemplo&er or dul& authori?ed representative is a /ust causefor termination# .o%ever in eneral Bank and Trust Co#

v# CA 1"5 CA 5<! (1!=5) %e said0 *Uoss of confidence should not be simulated# @t should not be usedas a subterfuge for causes %hich are improper illegal or un/ustified# *oss of confidence ma& not be arbitraril&asserted in the face of over%helming evidence to thecontrar&# @t must be genuine not a mere afterthought to

/ustif& an earlier action taken in bad faith#

%o Notice Re-i"eet 0o" %e"iati ploees # Nespondents’ illegal act of dismissing petitioners %asaggravated b& their failure to observe due process# Tomeet the re9uirements of due process in the dismissal of an emplo&ee an emplo&er must furnish the %orker %ith

t%o %ritten notices0 (1) a %ritten notice specif&ing thegrounds for termination and giving to said emplo&ee areasonable opportunit& to eplain his side and (4)another %ritten notice indicating that upon dueconsideration of all circumstances grounds have beenestablished to /ustif& the emplo&er’s decision to dismissthe emplo&ee#

%e oppo"t-it to e ea"d a00o"ded la to te

eploee is -ali0ied te o"d BapleD ic

o"dia"il eas coside"al o"e ta ade-ate o"

s-00iciet. Article 5<<(b) of the 'abor Code providesthat in cases of termination for a /ust cause an emplo&ee

must be given Gample opportunit& to be heard and todefend himself#H Thus the opportunit& to be heardafforded b& la% to the emplo&ee is 9ualified b& the %ordGampleH %hich ordinaril& means Gconsiderabl& morethan ade9uate or sufficient#H @n this regard the phraseGample opportunit& to be heardH can be reasonabl&interpreted as etensive enough to cover actual hearingor conference# To this etent ection 4(d) ule @ of the@mplementing ules of Book @ of the *abor Code is inconformit& %ith Article 466(b)#

$AC%S

8etitioners eli B# 8ere? and Amante # oria %ereemplo&ed b& respondent 8hilippine Telegraph andTelephone Compan& (8TXT) as shipping clerk andsupervisor respectivel& in 8TXT’s hipping ection'aterials 'anagement roup#Acting on an alleged unsigned letter regardinganomalous transactions at the hipping ectionrespondents formed a special audit team to investigatethe matter# @t %as discovered that the hipping ection

/acked up the value of the freight costs for goods shippedand that the duplicates of the shipping documents

36



LABOR RELATIONS

allegedl& sho%ed traces of tampering alteration andsuperimposition#,n eptember " 1!!" petitioners %ere placed on

preventive suspension for "; da&s for their allegedinvolvement in the anomal&#1 Their suspension %asetended for 15 da&s t%ice0 first on ,ctober " 1!!"4and second on ,ctober 1= 1!!"#,n 7ovember ! 1!!" petitioners filed a complaint for illegal suspension and illegal dismissal#5 The& allegedthat the& %ere dismissed on 7ovember = 1!!" the datethe& received the above-mentioned memorandum#The labor arbiter found that the ";-da& etension of

petitioners’ suspension and their subse9uent dismissal%ere both illegal# .e ordered respondents to pa&

petitioners their salaries during their ";-da& illegalsuspension as %ell as to reinstate them %ith back%agesand 1"th month pa&#The 7ational *abor elations Commission (7*C)reversed the decision of the labor arbiter# @t ruled that

petitioners %ere dismissed for /ust cause that the& %ere

accorded due process and that the& %ere illegall&suspended for onl& 15 da&s (%ithout stating the reasonfor the reduction of the period of petitioners’ illegalsuspension)#8etitioners appealed to the Court of Appeals (CA)# @n itsFanuar& 4! 4;;4 decision6 the CA affirmed the 7*Cdecision insofar as petitioners’ illegal suspension for 15da&s and dismissal for /ust cause %ere concerned#.o%ever it found that petitioners %ere dismissed%ithout due process#8etitioners no% seek a reversal of the CA decision# The&contend that there %as no /ust cause for their dismissalthat the& %ere not accorded due process and that the&

%ere illegall& suspended for "; da&s#

&SS'

2,7 the petitioners %ere legall& dismissed for 15 da&s

L*

N+# espondents’ illegal act of dismissing petitioners %as aggravated b& their failure to observe due process# To meet the re9uirements of due process in thedismissal of an emplo&ee an emplo&er must furnish the%orker %ith t%o %ritten notices0 (1) a %ritten noticespecif&ing the grounds for termination and giving to said

emplo&ee a reasonable opportunit& to eplain his sideand (4) another %ritten notice indicating that upon dueconsideration of all circumstances grounds have beenestablished to /ustif& the emplo&er’s decision to dismissthe emplo&ee#

R'L&NG

The petition is hereb& A7T+# The decisionof the Court of Appeals dated Fanuar& 4! 4;;4 in CA-## 8 7o# 5;5"< finding that petitioners eli B# 8ere?and Amante # oria %ere not illegall& dismissed but%ere not accorded due process and %ere illegall&suspended for 15 da&s is +T A@+# The decision of the labor arbiter dated ecember 46 1!!5 in 7*C

7C C7# 11-;<!";-!" is hereb& A@'+ %ith the',@@CAT@,7 that petitioners should be paid their separation pa& in lieu of reinstatement#

EEEEEEEEEEEEEEEEEEEEEEEEE

2#) G-e""e"o vs. Natioal Lao" Relatios

Coissio, 2#1 SCRA 31/ G.R. No. 119!42. A--st

3, 199#

Lao" La *isissals3 The right to terminate theservices of emplo&ees to obviate or minimi?e businesslosses ma& not be eercised arbitraril& or %himsicall&#N The la% gives an emplo&er the right to terminate theservices of its emplo&ees to obviate or to minimi?e

business losses# This right ho%ever ma& not beeercised arbitraril& or %himsicall&#

Ret"ecet Re-isites 0o" a @alid Ret"ecet# NThe re9uisites for valid retrenchment under theforegoing provision are0 (1) necessity of the retrenchment

to prevent losses and proof of such losses 3 (4) writtennotice to the employees and to the @epartment of 'abor

and ,mployment at least one month prior to the intended

date of retrenchment; and (") payment of separation pay

e!uivalent to one month pay or at least 65 month pay for every year of service" whichever is higher #

espondent compan& did not satisf& the legalre9uirements for a valid retrenchment#NConsidering the

circumstances in the case at bar %e find that respondentcompan& did not satisf& the legal re9uirements for validretrenchment#

5o :ustify t"e employees6 termination of ser0ice$ t"e

losses must be serious$ actual and real and t"ey must

be supported by sufficient and con0incing e0idence!=

irst respondent compan& did not present sufficientevidence to prove the etent of its losses# To /ustif& theemplo&ees’ termination of service the losses must beserious actual and real and the& must be supported b&sufficient and convincing evidence# The burden of proof rests on the emplo&er# espondent compan& alleged that

the strike paral&?ed its operations and resulted in the%ithdra%al of its clients’ orders# espondent compan&ho%ever failed to prove its claim %ith competentevidence %hich %ould sho% that it %as indeed sufferingfrom business losses so serious as %ould necessitateretrenchment or reduction of personnel#

5"e rule is t"at not e0ery loss incurred or e>pected to

be incurred by a company 1ill :ustify retrenc"ment!=

2e re/ect respondent compan&’s contention that it %asnot necessar& to present proof of severit& of the losses itsustained since petitioners %ere a%are of the strike andits adverse effects on the compan&’s operations# The rule

is that not ever& loss incurred or epected to be incurred b& a compan& %ill /ustif& retrenchment# The losses must be substantial and the retrenchment must be reasonabl&necessar& to avert such losses#

Ret"ecet is E-sti0ied ol e all ote" less

d"astic eas ave ee t"ied ad 0o-d is-00iciet.

econd respondent compan& failed to prove thatretrenchment %as necessar& to prevent further losses#There is no sho%ing in this case that respondentcompan& has taken other measures to abate the losses itsustained because of the strike# etrenchment must beeercised onl& as a last resort considering that it %illlead to the loss of the emplo&ees’ livelihood#etrenchment is /ustified onl& %hen all other less drasticmeans have been tried and found insufficient#

Employees 1"o recei0e t"eir separation pay are not

barred from contesting t"e legality of t"eir dismissal #N inall& petitioners’ availment of the GfinancialassistanceH given b& respondent compan& did not estopthem from 9uestioning#the legalit& of their separationfrom the compan&# 2hen respondent compan& made theoffer petitioners %ere made to believe that the compan&

37



LABOR RELATIONS

%ould cease to operate for an indefinite period of time#.ence petitioners %ere constrained to accept %hatever relief the respondent compan& offered at that time# @n e*eon vs# 7*C %e held that Gemplo&ees %ho receivetheir separation pa& are not barred from contesting thelegalit& of their dismissal# The acceptance of those

benefits (%ill) not amount to estoppel#H

$AC%S

The petitioners are former emplo&ees of respondent R.+.. A-to >"od-cts >ils., &c# acorporation engaged in the manufacture of automotivesteel %heels#,n 'arch 4: 1!!4 members of the union in respondentcompan& %ent on strike# The petitioners ho%ever didnot participate in the strike#

espondent compan& allegedl& sustained hugelosses as the strike virtuall& paral&?ed its operations# To

prevent further losses respondent proposed on April 441!!4 to the nonstriking emplo&ees a Gfinancial

assistanceH in echange for their resignation# espondentcompan& nevertheless assured them priorit& in hiring%hen positions of e9ual stature and compensation

become available#,n April 4: 1!!4 the petitioners availed of

respondent compan&’s offer# The& signed individual>uitclaim and elease deeds upon receipt of their separation pa&# ,n 'a& " 1!!4 the strike ended# Theoperations in respondent compan& resumed and all thestriking emplo&ees returned to their posts# The

petitioners offered to re-assume their former positions but respondent compan& refused to admit them# The&filed separate complaints for illegal dismissal#

@n a consolidated ecision dated Fune 4! 1!!" *abor Arbiter eobel A# Bartolabac dismissed the complaintsfor lack of merit# The 7*C affirmed the said decision#

&SS'

2,7 petitioners’ availment of the GfinancialassistanceH given b& respondent compan& estop themfrom 9uestioning the legalit& of their separation from thecompan&

L*

N+. 8etitioners’ availment of the GfinancialassistanceH given b& respondent compan& did not estop

them from 9uestioning the legalit& of their separationfrom the compan&# 2hen respondent compan& made theoffer petitioners %ere made to believe that the compan&%ould cease to operate for an indefinite period of time#.ence petitioners %ere constrained to accept %hatever relief the respondent compan& offered at that time# @n e*eon vs# 7*C1: %e held that Gemplo&ees %ho receivetheir separation pa& are not barred from contesting thelegalit& of their dismissal# The acceptance of those

benefits (%ill) not amount to estoppel#H

@n the case at bar the court find that respondent compan&did not satisf& the legal re9uirements for validretrenchment#

Airst" respondent company did not present sufficient

e0idence to pro0e t"e e>tent of its losses! To /ustif& theemplo&ees’ termination of service the losses must beserious actual and real and the& must be supported b&sufficient and convincing evidence# 5"e burden of proof

rests on t"e employer # espondent compan& alleged thatthe strike paral&?ed its operations and resulted in the%ithdra%al of its clients’ orders# espondent compan&ho%ever failed to prove its claim %ith competentevidence %hich %ould sho% that it %as indeed suffering

from business losses so serious as %ould necessitateretrenchment or reduction of personnel# As %e held in*ope? ugar Corporation vs# ederation of ree2orkers0*astl& but certainl& not the least important alleged lossesif alread& reali?ed and the epected imminent lossessought to be forestalled must be proved b& sufficient andconvincing evidence# The reason for re9uiring this9uantum of proof is readil& apparent0 an& less eactingstandard of proof %ould render too eas& the abuse of thisground for termination of services of emplo&ees# @narcia v# 7ational *abor elations Commission theCourt said0 But it is essentiall& re9uired that the alleged lossesin business operations must be provenU# ,ther%ise saidground for termination %ould be susceptible to abuse b&scheming emplo&ers %ho might be merel& feigning

business losses or reverses in their business ventures inorder to ease out emplo&ees#

R'L&NG The assailed ecision is +++ and +TA@+# espondents #,#.# Auto 8roducts 8hils# @nc#and oeff Jemp are hereb& ordered to +@7TAT+ the

petitioners %ithout loss of seniorit& rights and %ith full back%ages minus the amount received b& them asGfinancial assistanceH upon their separation#666666666666666666666666666666666666666666666666

%e "e-isites 0o" valid "et"ecet -de" te

a"ticle 2!3 (o A"ticle 2!9) o0 lao" code a"e;

(1) ecessit o0 te "et"ecet to p"evet losses ad

p"oo0 o0 s-c losses

(2) "itte otice to te eploees ad to te

*epa"tet o0 Lao" ad ploet at least oeot p"io" to te iteded date o0 "et"ecet

ad

(3) paet o0 sepa"atio pa e-ivalet to oe

ot pa o" at least 1/2 ot pa 0o" eve" ea" o0

se"vice, iceve" is ie".

IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII

27) No"t *avao Mii Co"po"atio vs. NLRC, 254

SCRA 721/ G.R. No. 11254# Ma"c 13, 199#

abor a1; 5ermination; %eparation 7ay; Art! 3 of

t"e abor Code does not obligate an employer to pay

separation benefits 1"en t"e closure is due to losses!= As alread& stated Art# 4=" of the *abor Code does notobligate an emplo&er to pa& separation benefits %hen theclosure is due to losses# @n the case before us the basisfor the claim of the additional separation benefit of 16#5da&s is alleged discrimination i#e# une9ual treatment of emplo&ees %hich is proscribed as an unfair labor

practice b& Art# 4:= (e) of said Code# $nder the facts andcircumstances of the present case the grant of a lesser amount of separation pa& to private respondent %asdone not b& reason of discrimination but rather out of sheer financial bankruptc&Na fact that is not controlled

b& management prerogatives# tated differentl& the totalcessation of operation due to mind-boggling losses %as asupervening fact that prevented the compan& fromcontinuing to grant the more generous amount of separation pa&# The fact that 7orth avao at the point of its forced closure voluntaril& paid an& separation benefitsat allNalthough not re9uired b& la%Nand 14#5 da&s’%orth at that should have elicited admiration instead of condemnation# But to re9uire it to continue beinggenerous %hen it is no longer in a position to do so%ould certainl& be undul& oppressive unfair and mostrevolting to the conscience#

38



LABOR RELATIONS

5"e la1 in protecting t"e rig"ts of t"e laborer$

aut"ories neit"er oppression nor self-destruction of

t"e employer!= As this Court held in 'anila Trading Xuppl& Co# vs# Kulueta and reiterated in an 'iguelCorporation vs# 7*C and later in Allied BankingCorporation vs# Castro G(t)he la% in protecting therights of the laborer authori?es neither oppression nor self-destruction of the emplo&er#H

$AC%S

8etitioner North @avao Mining Corporation(7orth avao) %as incorporated in 1!6: as a 1;;I

privatel&-o%ned compan&# *ater the 8hilippine 7ationalBank (87B) became part o%ner thereof as a result of aconversion into e9uit& of a portion of loans obtained b&

7orth avao from said bank# ,n Fune "; 1!=< 87B

transferred all its loans to and e9uit& in 7orth avao infavor of the national government %hich b& virtue of 8roclamation 7o# 5; dated ecember = 1!=< later turned them over to petitioner %sset *rivati:ation &rust (%*&)# As of ecember "1 1!!; the nationalgovernment held =1#=I of the common stock and 1;;Iof the preferred stock of said compan&#

espondent 2ilfredo uillema is one among severalemplo&ees of 7orth avao %ho %ere separated b&reason of the compan&’s closure on 'a& "1 1!!4 and%ho %ere the complainants in the cases before therespondent labor arbiter#

,n 'a& "1 1!!4 petitioner North @avaocompletel& ceased operations due to serious businessreverses# rom 1!== until its closure in 1!!4 7orthavao suffered net losses averaging three billion pesos

(*8"333"333"333#33) per year for each of the five &ears prior to its closure# All told as of ecember "1 1!!1 or five months prior to its closure its total liabilities hadeceeded its assets b& 4;#"!4 billion pesos as sho%n b&its financial statements audited b& the Commission onAudit# 2hen it ceased operations its remainingemplo&ees %ere separated and given the e9uivalent of 14#5 da&s’ pa& for ever& &ear of service computed ontheir basic monthl& pa& in addition to the commutation

to cash of their unused vacation and sick leaves#.o%ever it appears that during the life of the petitioner corporation from the beginning of its operations in 1!=1until its closure in 1!!4 it had been giving separation

pa& e9uivalent to thirt& (";) da&s’ pa& for ever& &ear of service# 'oreover inasmuch as the region %here 7orthavao operated %as plagued b& insurgenc& and other

peace and order problems the emplo&ees had to collecttheir salaries at a bank in Tagum avao del 7orte some5= kilometers from their %orkplace and about 4 1D4hours’ travel time b& public transportation3 thisarrangement lasted from 1!=1 up to 1!!;#

ubse9uentl& a complaint %as filed %ithrespondent *abor Arbiter b& respondent 2ilfredouillema and 461 other separated emplo&ees for0 (1)additional separation pa& of 16#5 da&s for ever& &ear of service3 (4) back %ages e9uivalent to t%o da&s a month3(") transportation allo%ance3 (:) ha?ard pa&3 (5) housingallo%ance3 (<) food allo%ance3 (6) post-emplo&mentmedical clearance3 and (=) future medical allo%ance allof %hich amounted to 85=;44=6=#"1 as computed b&

private respondent#5

,n 'a& < 1!!" respondent *abor Arbiter rendered adecision ordering petitioner 7orth avao to pa& thecomplainants#

&SS'1# 2hether or not an emplo&er %hose businessoperations ceased due to serious business losses or financial reverses is obliged to pa& sepa"atio pa to itsemplo&ees separated b& reason of such closure#4# 2hether or not time spent in collecting aes in a

place other than the place of emplo&ment is compensablenot%ithstanding that the same is done during officialtime#"#2hether or not private respondents are entitled tot"aspo"tatio eJpeses in the absence of evidence thatthese epenses %ere incurred#

L*

%e $i"st &ss-e; Sepa"atio >a

&o resolve this issue" it is necessary to revisit the provision of law adverted to by the parties in their

submissions" namely" %rt# 578 of the 'abor Code" which

reads as followsF

/ Art! 3! Closure of establis"ment and reduction of

personnel!= &he employer may also terminate the

employment of any employee due to the installation of labor saving devices" redundancy" retrenchment to

prevent losses or the closing or cessation of operation of

the establishment or undertaking unless the closing is for

the purpose of circumventing the provisions of this &itle"by serving a written notice on the workers and the

Ministry of 'abor and ,mployment at least one (6)month before the intended date thereof# 9n case of

termination due to the installation of labor saving devices or redundancy" the worker affected thereby shall

be entitled to a separation pay e!uivalent to at least his

one (6) month pay or to at least one (6) month pay for

every year of service" whichever is higher# 9n case of retrenchment to prevent losses and in cases of closures

or cessation of operations of establishment or

undertaking not due to serious business losses or

financial reverses" the separation pay shall be e!uivalent to one (6) month pay or at least one$half (65) month pay

for every year of service" whichever is higher# % fraction

of at least si0 (G) months shall be considered one (6)whole year#1 (italics supplied)The underscored portion of Art# 4=" governs the grant of separation benefits Gin case of closures or cessation of operationH of business establishments G7,T due toserious business losses or financial reverses #H2here ho%ever the closure %as due to business losses

Nas in the instant case in %hich the aggregate lossesamounted to over 84; billionNthe *abor Code does notimpose an& obligation upon the emplo&er to pa&separation benefits for obvious reasons# There is no needto belabor this point# +ven the public respondents intheir Comment1; filed b& the olicitor eneralimpliedl& concede this point#.o%ever respondents tenaciousl& insist on the a%ard of separation pa& anchoring their claim solel& on petitioner

7orth avao’s long-standing polic& of giving separation pa& benefits e9uivalent to ";-da&s’ pa& %hich polic& had been in force in the &ears prior to its closure#espondents contend that b& den&ing the sameseparation benefits to private respondent and the otherssimilarl& situated petitioners discriminated against them#The& rel& on this Court’s ruling in Businessda&@nformation &stems and ervices @nc# (B@@) vs#

39



LABOR RELATIONS

7*C (supra)# @n said case petitioner B@@ after eperiencing financial reverses decided Gas aretrenchment measureH to la&-off some emplo&ees on'a& 1< 1!== and gave them separation pa& e9uivalentto one-half (1D4) month pa& for ever& &ear of service#B@@ retained some emplo&ees in an attempt torehabilitate its business as a trading compan&#

%e Secod ad %i"d &ss-es; :ac <aes

ad %"aspo"tatio Alloace

Anent the a%ard of back %ages and transportationallo%ance the issues raised in connection there%ith arefactual the determination of %hich is best left to therespondent 7*C# @t is %ell settled that this Court is

bound b& the findings of fact of the 7*C so long assaid findings are supported b& substantial evidence#15As the olicitor eneral pointed out in his comment0G@t is undisputed that because of securit& reasons fromthe time of its operations petitioner 7'C maintainedits polic& of pa&ing its %orkers at a bank in Tagum

avao del 7orte %hich usuall& took the %orkers aboutt%o and a half (4 1D4) hours of travel from the place of %ork and such travel time is not official#ecords also sho% that on ebruar& 14 1!!4 %hen aninspection %as conducted b& the epartment of *abor and +mplo&ment at the premises of petitioner 7'C atAmacan 'aco avao del 7orte it %as found out that

petitioners had violated labor standards la% one of %hich is the place of pa&ment of %ages#

R'L&NG

The /udgment is hereb& rendered ',@L@7the assailed esolution b& +TT@7 A@+ and

deleting the a%ard for Gadditional separation pa& of 16#5da&s for ever& &ear of serviceH and A@'@7 it in allother aspects#

EEEEEEEEEEEEEEEEEEEEEEEEEEEEE 2!) Natioal $ede"atio o0 Lao" vs. NLRC, 327

SCRA 15!/ G.R. No. 12771! Ma"c 2, 2

Lao" La Sepa"atio >a A"a"ia Re0o" Anemplo&er is not liable to pa& separation pa& %here thecessation of its operation is caused b& the compulsor&ac9uisition b& the government of its land for purposes of agrarian reform#N@t is clear that Article 4=" of the*abor Code applies in cases of closures of establishment

and reduction of personnel# The peculiar circumstancesin the case at bar ho%ever involves neither the closureof an establishment nor a reduction of personnel ascontemplated under the aforesaid article# 2hen the8atalon Coconut +state %as closed because a large

portion of the estate %as ac9uired b& A pursuant toCA8 the o%nership of that large portion of the estate%as precisel& transferred to 8+AA and ultimatel& to the

petitioners as members thereof and as agrarian lot beneficiaries# .ence Article 4=" of the *abor Code isnot applicable to the case at bench#

2here the closure of the establishment %as due to the actof the government of ac9uiring the land to benefit theemplo&ees b& making them agrarian lot beneficiariesthe& are not entitled to separation pa&#NAs earlier statedthe 8atalon Coconut +state %as closed do%n because alarge portion of the said estate %as ac9uired b& the A

pursuant to the CA8# .ence theclosure of the 8atalon Coconut +state %as not effectedvoluntaril& b& private respondents %ho even filed a

petition to have said estate eempted from the coverageof A <<56# $nfortunatel& their petition %as denied b&the epartment of Agrarian eform# ince the closure

%as due to the act of the government to benefit the petitioners as members of the 8atalon +state Agrarianeform Association b& making them agrarian lot

beneficiaries of said estate the petitioners are not entitledto separation pa&# The termination of their emplo&ment%as not caused b& the private respondents# The blame if an& for the termination of petitioners’ emplo&ment caneven be laid upon the petitioner-emplo&ees themselvesinasmuch as the& formed themselves into a cooperative8+AA ultimatel& to take over as agrarian lot

beneficiaries of private respondents’ landed estate pursuant to A <<56# The resulting closure of the business establishment 8atalon Coconut +state %hen it%as placed under CA8 occurred through no fault of the

private respondents#

$AC%S

8etitioners are bona fide members of the National Aederation of 'abor (NA')" a legitimate labor organi?ation dul& registered %ith the epartment of

*abor and +mplo&ment# The& %ere emplo&ed b& privaterespondents Charlie eith and usie alle eith generalmanager and o%ner respectivel& of the "5:-hectare8atalon Coconut +state located at 8atalon KamboangaCit&# 8atalon Coconut +state %as engaged in gro%ingagricultural products and in raising livestock#@n 1!== Congress enacted into la% Rep-lic Act (R.A.)

No. ##57, other%ise kno%n as the Comprehensive %grarian -eform 'aw (C%-')" %hich mandated thecompulsor& ac9uisition of all covered agricultural landsfor distribution to 9ualified farmer beneficiaries under the so-called Comprehensive Agrarian eform8rogramme (CA8)# 8ursuant to #A# 7o# <<56 the

8atalon Coconut +state %as a%arded to the 8atalon+state Agrarian eform Association (8+AA) acooperative accredited b& the epartment of Agrarianeform (A) of %hich petitioners are members andco-o%ners# As a result of this ac9uisition privaterespondents shut do%n the operation of the 8atalonCoconut +state and the emplo&ment of the petitioners%as severed on Ful& "1 1!!:# 8etitioners did not receivean& separation pa&#,n April 45 1!!5 petitioners filed individual complaints

before the egional Arbitration Branch (AB) of the 7ational *abor elations Commission (7*C) inKamboanga Cit& pra&ing for their reinstatement %ith full

back%ages on the ground that the& %ere illegall&dismissed#

&SS'

2,7 the petitioners are enititled to separation pa&L*

N+# An emplo&er is not liable to pa& separation pa& %here the cessation of its operation is caused b& thecompulsor& ac9uisition b& the government of its land for

purposes of agrarian reform#

R'L&NG

The petition is @'@+# The esolutions of the 7ational *abor elations Commission dated April 4:1!!< and August 4! 1!!< are hereb& A@'+#

EEEEEEEEEEEEEEEEEEEEEEEEEEEE 29) Cia Oai Se Collee vs. Co-"t o0 Appeals,

437 SCRA 171/ G.R. No. 1529!! A--st 24, 24

Lao" La Sec-"it o0 %e-"e -e!uisites for a

*rivate +chool &eacher to %c!uire a *ermanent +tatus of

,mployment and &herefore ,ntitled to a +ecurity of

40



LABOR RELATIONS

&enure; &he fundamental guarantees of security of

tenure and due process dictate that no worker shall be

dismissed e0cept for just and authori:ed cause provided

by law and after due notice and hearing #N$nder the'anual of egulations for 8rivate chools for a privateschool teacher to ac9uire a permanent status of emplo&ment and therefore be entitled to a securit& of tenure the 0olloi "e-isites must concur0 (a) theteacher is a full$time teacher 3 (b) the teacher must have

rendered three consecutive years of service3 and (c ) such

service must have been satisfactory# ince 's# Belo hasmeasured up to these standards she therefore en/o&ssecurit& of tenure# The fundamental guarantees of securit& of tenure and due process dictate that no %orker shall be dismissed ecept for /ust and authori?ed cause

provided b& la% and after due notice and hearing#

*isissal *e0iitio o0 Cost"-ctive *isissal#N Case la% defines constructive dismissal as a cessation

from work because continued employment is rendered

impossible" unreasonable" or unlikely; when there is ademotion in rank or a diminution in pay or both; or

when a clear discrimination" insensibility" or disdain by

an employer becomes unbearable to the employee#

$AC%S

The controvers& began on = Fune 1!!4 %hen's# Belo a teacher of CJC since 1!66 applied for aleave of absence for the school &ear 1!!4-1!!" becauseher children of tender age had no &a&a to take care of them# The then principal 'rs# Foan & Cotio approvedher application# .o%ever on 15 Fune 1!!4 's# Belo

received a letter dated ! Fune 1!!4 of 'r# Chien Linhao 8resident of CJC informing her of the school’seisting polic&3 thus0egarding &our letter of re9uest for leave of absencedated Fune = 1!!4 %e %ould like to inform &ou of theeisting polic& of our school0(1) 2e could not assure &ou of an& teaching load should&ou decide to return in the future#(4) ,nl& teachers in service ma& en/o& the privilege and

benefits provided b& our school# .ence &our childrenare no longer entitled to free tuition starting school &ear 1!!4-1!!"#

's# Belo nonetheless took her leave of absence# ,n =Ful& 1!!4 she learned that *aurence one of her threechildren stud&ing at the CJC %as sent out of theeamination room because his tuition fees %ere not paid#This embarrassing incident impelled 's# Belo to pa&allegedl& under protest all the school fees of her children#@n 'a& 1!!" after her one-&ear leave of absence 's#Belo presented herself to 's# Cotio and signified her readiness to teach for the incoming school &ear 1!!"-1!!:# he %as ho%ever denied and not accepted b& 's#Cotio# he then rela&ed the denial to 'r# Chien on 16'a& 1!!"# ,n 41 Ful& 1!!" she received the repl& of 'r# Chien dated 1 Ful& 1!!" informing her that her confirmation to teach %as filed late and that there %as noavailable teaching load for her because as earl& as April41 of that &ear the school had alread& hired non-

permanent teachers# Adversel& affected b& thedevelopment 's# Belo filed %ith the *abor Arbitration,ffice a complaint for illegal dismissal3 non-pa&ment of salaries 1"th month pa& living allo%ance teacher’s da&

pa&3 loss of income3 and moral damages#

The *abor Arbiter thus offered a olomonic solution b&directing the petitioners to give her a teaching load in theensuing &ear 1!!<-1!!6 and the succeeding &ears%ithout loss of seniorit& rights#,n appeal b& the private respondent the 7*C reversedthe decision of the *abor Arbiter# @t considered asmisplaced the *abor Arbiter’s utter reliance on 'r#Chien’s letter to 's# Belo enunciating the 9uestionedschool policies# @t reasoned that if the school polic& %asto etend free tuition fees to children of teachers inschool then the petitioners must have considered her Galread& not in school or summaril& dismissed or separated the ver& moment sheU applied for leaveH forother%ise her children %ould have been granted that

privilege# Thus it directed the petitioners to immediatel&reinstate 's# Belo to her former position %ith full back %ages from the time of her dismissal up to her actualreinstatement# @t ho%ever dismissed 's# Belo’s pra&er for moral and eemplar& damages and attorne&’s fees for lack of evidence that the petitioners acted in bad faith

and malice

&SS'

DN @iana *# Belo" private respondent" waslegally dismissed as a teacher of petitioner Chiang ai

+hek College (C+C)H

L*

N+. The court agreed %ith the Court of Appealsthat the 7*C did not commit an& grave abuse of discretion in finding that 's# Belo %as constructivel&dismissed %hen the petitioners in implementing their

policies effectivel& barred her from teaching for the

school &ear 1!!"-1!!:# The three policies are (1) thenon-assurance of a teaching load to a teacher %ho took aleave of absence3 (4) the hiring of non-permanentteachers in April to %hom teaching loads %ere alread&assigned %hen 's# Belo signified in 'a& 1!!" her intention to teach3 and (") the non-applicabilit& tochildren of teachers on leave of the free tuition fee

benefits etended to children of teachers in service#Case la defines cost"-ctive disissal as a cessation

from work because continued employment is rendered

impossible" unreasonable" or unlikely; when there is ademotion in rank or a diminution in pay or both; or

when a clear discrimination" insensibility" or disdain by

an employer becomes unbearable to the employee#2hen in the school &ear 1!!4-1!!" the petitionersalread& applied to 's# Belo’s children the polic& of etending free tuition fee benefits onl& to children of teachers in service 's# Belo %as clearl& discriminated

b& them# True the polic& %as made kno%n to 's# Beloin a letter dated ! Fune 1!!4 but this onl& additionall&and succinctl& reinforced the clear case of discrimination# 7otabl& petitioners’ statements of

policies dated 1" 'arch 1!!4 for the school &ear 1!!4-1!!"#

R'L&NG

The petition is +7@+# The decision of 14 ,ctober 4;;1 and resolution of 11 April 4;;4 of the Court of Appeals in CA-# 8 7o# 5!!!< are hereb&A@'+# Costs against the petitioners#

EEEEEEEEEEEEEEEEEEEEE 3) >ilippie &d-st"ial Sec-"it Aec

Co"po"atio (>&SAC) vs. A-ialdo, 4# SCRA 229/

G.R. No. 149974 8-e 15, 25

abor a1; ,ational abor elations Commission

(,C); Factual Findings; Appeals; %ettled is t"e rule

41



LABOR RELATIONS

t"at findings of fact of t"e Court of Appeals are

accorded respect$ e0en finality$ and 1ill not be

disturbed especially 1"ere suc" findings are supported

by substantial e0idence!= ettled is the rule that findingsof facts of the Court of Appeals are accorded respecteven finalit& and %ill not be disturbed especiall& %heresuch findings are supported b& substantial evidence# ,neof the eceptions ho%ever is %hen there is a variance

bet%een the findings of the 7*C and the Court of Appeals as in this case#

%"as0e"s Cost"-ctive *isissals3 @n constructivedismissal the emplo&er has the burden of proving thatthe transfer and demotion of an emplo&ee are for /ust andvalid grounds such as genuine business necessit&#NAtransfer amounts to constructive dismissal %hen thetransfer is unreasonable unlikel& inconvenientimpossible or pre/udicial to the emplo&ee as in thiscase# @t is defined as an involuntar& resignation resorted%hen a clear discrimination insensibilit& or disdain b&

an emplo&er becomes unbearable to the emplo&ee# @nconstructive dismissal the emplo&er has the burden of

proving that the transfer and demotion of an emplo&eeare for /ust and valid grounds such as genuine businessnecessit&# The emplo&er must be able to sho% that thetransfer is not unreasonable inconvenient or pre/udicialto the emplo&ee3 nor does it involve a demotion in rank or a diminution of salar& and other benefits# hould theemplo&er fail to overcome this burden of proof theemplo&ee’s transfer shall be tantamount to unla%fulconstructive dismissal#

$AC%S

,n April 11 1!== 8hilippine @ndustrialecurit& Agenc& Corporation (8@AC) petitioner hired8ercival Aguinaldo respondent as a securit& guard# .e%as assigned to secure the premises of ar +ast Bank XTrust Compan& (+BTC) Branch in antiago Cit&# @n1!!" he %as promoted as Branch .ead uard#4,n 7ovember 1" 1!!= 's# em& Tumamao

petitioner’s roving personnel caught respondent %ithoutheadgear and smoking %hile on dut&#

,n 7ovember 4" 1!!= petitioner securit& agenc& issueda memorandum to respondent directing him to report tothe +BTC main office in 'alabon Cit& for

investigation#: The follo%ing da& or on 7ovember 4: petitioner issued a elief ,rder5 ordering him to reportto its head office for further clarification of his status#

,n the morning of 7ovember 1" 1!!= our armoured car %as on its %a& to deliver cash to Central Bank inTuguegarao# At around 1;0;; A#'# our armoured car

personnel called up 'r# Aguinaldo and informed him thatthe& incurred a mechanical trouble# $pon receiving themessage 'r# Aguinaldo %ent out to fetch or call amechanic# ince it %as raining on that morning he didnot %ear his perching cap because his hair %as still %et#@t %as during that moment %hen 's# Tumamao sa% himin the branch#@n vie% of the degree of offense committed b& our ecurit& uard he should be given a %ritten reprimandand not relieved from his post since this %as his firstoffense#'r# Aguinaldo has been %ith the branch for ten &ears heis a person of good moral character and has performedhis /ob above our epectations#@n vie% of this @ %ould like to seek &our approval for theretention of 'r# Aguinaldo#

A constructive dismissal is a 9uitting because continuedemplo&ment is rendered impossible unreasonable or unlikel& as an offer involving a demotion in rank and adiminution in pa& (8hilip-

pine Fapan Active Carbon Corp# vs# 7*C ## 7o#="4"! 'arch = 1!=!)# As further eplained in Farcia vs#

7*C (4<< CA !6 1!!6U)0@n case of constructive dismissal the emplo&er has theburden of pro0ing t"at t"e transfer and demotion of an

employee are for valid and legitimate grounds such asgenuine business necessit&# 8articularl& for a transfer notto be considered a cost"-ctive disissal the emplo&er must be able to sho% that such transfer is notunreasonable inconvenient or pre/udicial to theemplo&ee3 nor does it involve a demotion in rank or adiminution of his salaries privileges and other benefits#ailure of the emplo&er to overcome this burden of

proof the emplo&ee’s demotion shall no doubt betantamount to unla%ful constructive dismissal#

&SS' 2,7 the 8@AC the emplo&er %as able prove

that the transfer and demotion of an emplo&ee are for /ustand valid grounds

L*

N+. B& transferring respondent to the 'alabonCit& +BTC Branch petitioner resorted to constructivedismissal# A transfer amounts to constructive dismissal%hen the transfer is unreasonable unlikel& inconvenientimpossible or pre/udicial to the emplo&ee as in thiscase# @t is defined as an involuntar& resignation resorted%hen a clear discrimination insensibilit& or disdain b&

an emplo&er becomes unbearable to the emplo&ee#@n cost"-ctive disissal the emplo&er has the burdenof proving that the transfer and demotion of an emplo&eeare for /ust and valid grounds such as genuine businessnecessit&# The emplo&er must be able to sho% that thetransfer is not unreasonable inconvenient or pre/udicialto the emplo&ee3 nor does it involve a demotion in rank or a diminution of salar& and other benefits# hould theemplo&er fail to overcome this burden of proof theemplo&ee’s transfer shall be tantamount to unla%fulconstructive dismissal#

R'L&NG

The petition is hereb& +7@+# The assailed ecisionof the Court of Appeals is A@'+# Costs against petitioner#


31) S-pe"sta" Sec-"it Aec, &c. vs. NLRC, 1!4

SCRA 74/ G.R. No. !1493. Ap"il 3, 199

Lao" La &lleal *isissal %epo"a" o006detail is

ot e-ivalet to disissal#N2e resolve the issue inthe negative# The charge of illegal dismissal %as

prematurel& filed# The records sho% that a month after .ermosa %as placed on a tepo"a" Bo006detailH shereadil& filed a complaint against the petitioners on the

presumption that her services %ere alread& terminated#Temporar& Goff-detailH is not e9uivalent to dismissal# @nsecurit& parlance it means %aiting to be posted# (T7Fanuar& 1: 1!=; p# "5) @t is a recogni?ed fact thatsecurit& guards emplo&ed in a securit& agenc& ma& betemporaril& sidelined as their assignments primaril&depend on the contracts entered into b& the agenc& %iththird parties (Agro Commercial ecurit& Agencies @nc#v# 7*C et al# ## 7os# =4=4"-4: Ful& "1 1!=!)#

42



LABOR RELATIONS

.o%ever it must be emphasi?ed that such temporar&inactivit& should continue onl& for si months#,ther%ise the securit& agenc& concerned could be liablefor constructive dismissal under Article 4=6 (no% Article4=<) of the *abor Code (see Agro case supra)# 2e notethat .ermosa’s Goff-detailH from 'L %as due not to

petitioners’ machination but to a previous re9uest of 'L %hich %as reiterated b& the management onFanuar& 4! 1!=5 (+hibit G44H ecords p# <!)#'oreover the defenses raised b& the petitioners namel&their clients’ cost reduction program and their refusal toaccept the complainant’s services do not appear to $s asa Gscheme to camouflage (.ermosa’s) illegal dismissal H (7*C decision ecords p# 4;1)# 2e simpl&cannot ignore the realit& of the situation obtaining in thiscase# @n the business %orld companies %hich offer contracts for services cater to the %hims and %ishes of clients %hether the same are reasonable or not# Clientsare not epected to eplain the reasons for their demands%hile these companies are not onl& epected but also are

bound to compl& %ith their clients’ directives# @n the caseat bar 2e do not find it unusual for clients to resort to acost-cutting program in vie% of the prevailing economiccondition and then to manifest their preferences of

people the& %ant to %ork %ith in their establishments#ame3 ame3 +vidence3 @n the absence of contrar&evidence memoranda are credible#N.ermosa deniesthat she committed the foregoing acts of misconduct# heclaims that the Gevidence %ere planned and fabricated tolend a semblance of legalit& to the cause of (her)dismissal#H ('emorandum of 8etitioners ollo p# =6)#.ermosa’s supposition is untenable# A stud& of therecords reveals that other than her statement of denial

.ermosa did not present an& corroborative evidence#$pon the other hand the sub/ect memoranda containeddetailed reports on the incidents %hich %ould be difficultfor petitioners to concoct# @n the absence of a contrar&evidence the said memoranda are credible#

$AC%S

,n Fune 4: 1!=1 ilomena .ermosa(.ermosa for short) %as hired b& petitioner uperstar ecurit& Agenc& (Agenc& for short) as a ecurit& uard%ith a dail& salar& of 8"6#;; and an emergenc& cost of living allo%ance of 851;#;; per month# he %asassigned to different detachments in premises o%ned b&

the Agenc&’s clients such as the upergarment 'aluga&Lakal ('L) or ustan Commercial Corporation2arehouse ustan roup of Companies consisting of ustan Commercial Corporation (Cubao and 'akatietachments) Tourist ut& ree hop (T@ etachment.&att .ilton and heraton etachments) and ustanupermarket 2arehouse#

,n ebruar& 1 1!=5 the Agenc& placed .ermosa on atemporar& Goff-detail#H ,n 'arch 5 1!=5 .ermosa fileda complaint for illegal dismissal# he claimed that she%as unceremoniousl& dismissed on suspicion that she%as the author of an anon&mous report about theirregularities committed b& her fello% lad& securit&guards3 that it %as this precise reason %h& she %as calledto the head9uarters b& the Agenc&’s 8ersonnelupervisor afael ermo3 that thereafter ermothreatened and directed her to keep an& informationregarding the matter to herself3 that further she %asinstructed not to report for dut& at 'L effectiveebruar& 1 1!=5 as she %ould be given a ne%assignment3 that she did as she %as told but no ne%assignment came despite repeated follo%-ups3 and thatinstead the Agenc& informed her that the cause of her

temporar& Goff-detailH %as the cost-cutting program of the ustan roup of Companies and the refusal of Agenc&’s clients to accept her allegedl& due to poor

performance and lack of elementar& courtes& and tact#inall& .ermosa averred that she %as denied due

process in that she %as neither informed of the allegedcomplaints against her nor afforded the opportunit& toeplain her side#8etitioners on the other hand claimed that .ermosa %asrelieved of her 'L post due to the cost-cutting programof its clients3 that %hile she %as on temporar& Goff-detailH since ebruar& 1 1!=5 the Agenc& continued tolook for an available assignment for her %ith the other detachments3 that ho%ever the respective ecurit&irectors of the said detachments signified their un%illingness to accept her because of her poor

performance and undesirable conduct and behavior (+hs# < to 1")3 that the Agenc& did not dismiss her atall3 that 'r# ermo did not receive an& anon&mous reportof an& irregularit& committed b& some securit& guards

hence there %as no basis for the supposed threat andinstruction to complainant to be silent3 that the Agenc&usuall& %elcomes an& report if it eists regarding the

behavior of its personnel b& conducting an in9uir&thereon3 that the Agenc& is committed to maintain thetrust placed upon it b& its clients as %ell as heed thelatter’s demands for good service3 and that thecomplainant has been previousl& %arned andreprimanded for breach or violation of the Agenc&’s ruleson discipline (+h# 1< to 44)# ,n April 6 1!=< the*abor Arbiter rendered a decision to %it0G2.++,+ pursuant to the above premises therespondent uperstar ecurit& Agenc& @nc# is hereb&

ordered to pa& the complainant the amount of 8"=:=#;; b& %a& of separation pa&#

&SS'

2hether or not the petitioners are guilt& ofillegal dismissal of private respondent

L*

N+. The court resolve the issue in the negative#The charge of illegal dismissal %as prematurel& filed#The records sho% that a month after .ermosa %as placedon a temporar& Goff-detailH she readil& filed a complaintagainst the petitioners on the presumption that her

services %ere alread& terminated# Temporar& Goff-detailHis not e9uivalent to dismissal# @n securit& parlance itmeans %aiting to be posted# (T7 Fanuar& 1: 1!=; p#"5) @t is a recogni?ed fact that securit& guards emplo&edin a securit& agenc& ma& be temporaril& sidelined astheir assignments primaril& depend on the contractsentered into b& the agenc& %ith third parties (AgroCommercial ecurit& Agencies @nc# v# 7*C et al### 7os# =4=4"-4: Ful& "1 1!=!)# .o%ever it must beemphasi?ed that such temporar& inactivit& shouldcontinue onl& for si months# ,ther%ise the securit&agenc& concerned could be liable for constructivedismissal under Article 4=6 (no% Article 4=<) of the*abor Code (see Agro case supra)

R'L&NG

The decision of the 7*C dated ,ctober ";1!=6 is +T A@+ and the decision of the *aborArbiter dated April 6 1!=< is hereb& +@7TAT+# 7ocosts#

43



LABOR RELATIONS

32) Solia Sec-"it Se"vices, &c. vs. Co-"t o0

Appeals, 3!4 SCRA 514/ G.R. No. 143215. 8-l 11,

22

Lao" La *isissals %epo"a" Bo006detailD o0

"espodet @aleH-ela ot a cost"-ctive disissal#N Constructive dismissal eists %hen an act of clear discrimination insensibilit& or disdain on the part of anemplo&er has become so unbearable as to leave anemplo&ee %ith no choice but to forego continuedemplo&ment# The temporar& Goff-detailH of respondentalen?uela is not such a case#

$AC%S

espondent +duardo alen?uela a securit&guard %as a regular emplo&ee of petitioner olimanecurit& ervices assigned at the B8@-amil& Bank

8asa& Cit&# ,n ;! 'arch 1!!5 he received amemorandum from petitioners relieving him from his

post at the bank said to be upon the latterRs re9uest andre9uiring him to report to the securit& agenc& for reassignment# The follo%ing month or on ;6 April 1!!5respondent filed a complaint for illegal dismissal on theground that his services %ere terminated %ithout a validcause and that during his tenure at the bank he %as not

paid his overtime pa& 1"th month pa& and premium pa&for services rendered during holida&s and rest da&s# .eaverred that after receiving the memorandum of ;!'arch 1!!5 he kept on reporting to the office of

petitioners for reassignment but ecept for a brief stint

in another post lasting for no more than a %eek he %as put on a B0loatiD stat-s.

8etitioners contended that the relief of respondent from his post made upon re9uest of theclient %as merel& temporar& and that respondent had

been offered a ne% post but the latter refused to accept it#8etitioners argued that respondent’s floating

status for barel& 4! da&s did not constitute constructivedismissal#

,n "1 Ful& 1!!5 the *abor Arbiter Ariel Cadienteantos arrived at a decision holding petitioners guilt& of constructive dismissal and ordering the reinstatement of

the complainant to his former position %ith full back%ages from the date of his GdismissalH until hisactual reinstatement3 directing the esearch and@nformation $nit to compute the various monetar&

benefits a%arded to the complainant3 and ad/udging the pa&ment b& %a& of attorne&’s fees of ten percent (1;I)of all sums o%ing to the complainant#,n 1< ,ctober 1!!= petitioners filed an appeal to the

7ational *abor elations Commission (7*C)#,n 11 7ovember 1!!= the 7*C issued an order directing petitioners to submit an affidavit to the effectthat their appeal bond %as genuine and that it %ould bein force and effect until the final disposition of the case#@n his repl& memorandum dated 4= 7ovember 1!!=respondent asseverating that petitioners failed to depositthe re9uired bond for the appeal sought the appeal to bedeclared as not having been validl& perfected#

The 7*C on "; April 1!!! gave due course to theappeal and rendered the presentl& assailed decisionreversing that of the 'abor %rbiter to %it0G2.++,+ the decision appealed from is hereb&+T A@+# .o%ever respondent before the 7*CU ishereb& ordered to pa& complainant separation pa&

computed at one-half (1D4) month for ever& &ear of service reckoned from date of emplo&ment on ,ctober ! 1!!; up to eptember ! 1!!5 the date thecomplainant should have been redeplo&ed#H

A motion for reconsideration filed b& herein privaterespondent alen?uela %as denied b& the 7*C#alen?uela forth%ith brought the matter up to the Courtof Appeals#

&SS'

hether or not private respondent should bedeemed constructively dismissed by petitioner for having

been placed on floating status$< i#e#" with no

reassignment" for a period of 52 daysH

L*

N+. Constructive dismissal eists %hen an actof clear discrimination insensibilit& or disdain on the

part of an emplo&er has become so unbearable as to

leave an emplo&ee %ith no choice but to foregocontinued emplo&ment# The temporar& off-detail< of respondent alen?uela is not such a case#

R'L&NG

The instant petition is A7T+# The assaileddecision and resolution of the Court of Appeals are +TA@+ and the decision of the 7ational *abor elationsCommission in 7C C7# ;:-;4<4;-!5 is+@7TAT+# 7o costs# oliman ecurit& ervices@nc# vs# Court of Appeals "=: CA 51:(4;;4)U

EEEEEEEEEEEEEEEEEEEEEEEEEEE 33) sco ale Soe Copa, &c. vs. NLRC, 193

SCRA #7!/ G.R. No. !751 $e"-a" 7, 1991

Lao" La Secs. 13 = 14 o0 R-le 1, :. @& o0 te

&pleeti R-les ot applicale to case at a"#N Considering that it is admitted b& both parties that the

petitioner has no collective bargaining agreement nor bona-fide retirement plan the aforementioned provisionsof the @mplementing ules are inapplicable to the instantcase# aid provisions merel& recogni?e and 9ualif& theretirement benefits a retiring emplo&ee is entitled toreceive in case there is a separate retirement or private

benefit plan# @n fact Article 4=6 the la% beingimplemented b& the aforesaid sections states0 Art! 3!

etirement!= An& emplo&ee ma& be retired uponreaching the retirement age established in the collective bargaining agreement or other applicable emplo&mentcontract# @n case of retirement the emplo&ee shall beentitled to receive such retirement benefits as he ma&have earned under eisting la%s and an& collective

bargaining or other agreement#H (ection 4=6 *abor Code as amended)#

%o "at sepa"atio pa to p"ivate "espodet is E-st

ad e-itale as se is "eti"i 0"o se"vice o0 te

petitioe" te (1) ea"s eod te stat-to" ae o0

siJt (#). .o%ever since private respondent had%orked %ith the petitioner for such a long time 2e deemit /ust and e9uitable to grant her separation pa& as she isretiring from the service of the petitioner ten (1;) &ears

be&ond the statutor& age of sit& (<;)#

$AC%S

@t appears that private respondent had been emplo&ed b&the petitioner for fort& nine (:!) &ears commencing in1!"6 as a shoe bo maker until 1!=< as a heel padattacher#

44



LABOR RELATIONS

@n 1!=4 having reached the age of sit& five (<5) private respondent applied for retirement %ith the ocialecurit& Commission and she received retirement

benefits therefrom# Although she had alread& retired private respondent continued %orking for the petitioner until 7ovember 1 1!=< %hen she %as ecluded b& the

petitioner from the regular %ork schedule# 8rivaterespondent thereafter demanded that she be retired fromemplo&ment andDor be paid separation pa& but the

petitioner refused despite repeated demands#Thus on ebruar& 14 1!=6 private respondent filed acomplaint against the petitioner for violation of 8 =51and for pa&ment of retirement benefits andDor separation

pa& and other claims#As defense the petitioner argued that the onl& reason for the filing of the complaint is private respondent’s

baseless demand to be retired ane%3 that the petitioner has no separate retirement nor private benefit plan and allits emplo&ees including the private respondent arereported to the for coverage3 that private respondent

had effectivel& retired from the petitioner in 1!=4 %henshe received retirement benefits from the 3 and thatall the other claims of private respondent eceptvacation leave pa& for the &ears 1!=5 and 1!=< in theamount of 81;;=#;; had been paid b& the petitioner toher#inding the emplo&er’s obligation to pa& retirement

benefits to its retiring emplo&ee separate and distinctfrom that of the the respondent *abor Arbiter rendered a decision the dispositive portion of %hichreads0

G2.++,+ premises considered respondent +sco

.ale hoe Compan& @nc# andDor +lmer .# Cobb as,%ner and 8resident are hereb& ordered to pa&complainant Casimira B# 8edrosa the total amount of T2+7TL T.++ T.,$A7 @+ .$7+T.@TL ,$ 8+, A7 [email protected].++C+7TA, (84"5":#=") %hich represents her 1"thmonth pa& for 1!=< unpaid vacationDsick leave benefitsand retirement benefits b& depositing the same %ith this,ffice %ithin fifteen (15) da&s from receipt hereof#ailure to compl& %ithin the period herein prescribed a%rit of eecution shall automaticall& issue to satisf& thisecision#

@n so ruling said respondent *abor Arbiter relied onections 1" and 1: of ule 1 Book @ of the ,mnibus.ules @mplementing the *abor Code %hich provide0Gection 1"# etirement#N@n the absence of an&collective agreement or other applicable agreementconcerning terms and conditions of emplo&ment %hich

provides for retirement at an older age an emplo&ee ma& be retired upon reaching the age of sit& (<;) &ears#Gection 1:# etirement benefits#N(a) An emplo&ee %hois retired pursuant to a bona-fide retirement plan or inaccordance %ith the applicable individual or collectiveagreement or established emplo&er polic& shall beentitled to all the retirement benefits provided therein or to termination pa& e9uivalent to at least one monthsalar& or to one-half month salar& for ever& &ear of service %hichever is higher a fraction of at least (<)months being considered as one %hole &ear#H (emphasisours)aid decision %as affirmed b& the respondentCommission on appeal#@n this petition the petitioner contends that there is no

basis for t%ice granting retirement benefits to the privaterespondent %ho is admittedl& a retired emplo&ee and a

pensioner of the #

Considering that it is admitted b& both parties that the petitioner has no collective bargaining agreement nor bona-fide retirement plan the aforementioned provisionsof the @mplementing ules are inapplicable to the instantcase# aid provisions merel& recogni?e and 9ualif& theretirement benefits a retiring emplo&ee is entitled toreceive in case there is a separate retirement or private

benefit plan# @n fact Article 4=6 the la% beingimplemented b& the aforesaid sections states0GArt# 4=6# etirement#NAn& emplo&ee ma& be retiredupon reaching the retirement age established in thecollective bargaining agreement or other applicableemplo&ment contract#G@n case of retirement the emplo&ee shall be entitled toreceive such retirement benefits as he ma& have earnedunder eisting la%s and an& collective bargaining or other agreement#H (ection 4=6 *abor Code asamended)

GAnent the issue of 1"th month pa& respondents either

in their position paper or in the affidavit of respondentCobb have been mum an indication that complainant%as not paid#GAs to the claim for vacation and sick leave benefitssince there is an admission b& the respondents thatcomplainant is entitled to the amount of 81;;=#;; for the &ears 1!=5 and 1!=< and are read& and %illing to pa&an& time the same need not have to be passed upon#G@n computing the separation or retirement benefits of complainants %e have to consider the period %hen thecountr& %as at %ar %ith Fapan and also the occupation&ears %hich started in ecember 1!:1 up to 1!:5# Theseparation benefits therefore have to be based on fort&-

five (:5) &ears instead of fort&-nine &ears as claimed andcomputed on the basis of the minimum %age rate in 1!=<at 8"6#;; a da& %hen complainant %as separated from%ork# And being a dail& paid emplo&ee the computationhas to be computed at 1" da&s per &ear of service asfollo%s0

8"6#;; 1"Dda&s Y 8:=1#;;Dmo#8:=1#;; :5 &ears Y 841<:5#;;

or a total of T%ent& ,ne Thousand i .undred ort&-ive 8esos (841<:5#;;)# @n fine the total benefits to bereceived b& complainant is 84"5":#=" representing her

1" month pa& for 1!=< the unpaid vacationDsick leave benefits and retirement pa&#H

&SS'

2,7 Casimira B# 8edrosa the privaterespondent shall be entitled to retirement pa&

L*

?S. ince private respondent had %orked %iththe petitioner for such a long time 2e deem it /ust ande9uitable to grant her separation pa& as she is retiringfrom the service of the petitioner ten (1;) &ears be&ondthe statutor& age of sit& (<;)#

As Article 4=6 the la% being implemented b& theaforesaid sections states0 GArt# 4=6# etirement#NAn&emplo&ee ma& be retired upon reaching the retirementage established in the collective bargaining agreement or other applicable emplo&ment contract# @n case of retirement the emplo&ee shall be entitled to receive suchretirement benefits as he ma& have earned under eistingla%s and an& collective bargaining or other agreement#H

R'L&NG

45



LABOR RELATIONS

%e petitio is e"e *&SM&SS*.

IIIIIIIIIIIIIIIIIIIIIIIIII

34) Callata vs. Ca"atio >ilippies, &c., 145

SCRA 2#!/ No. L67#15 +ctoe" 2!, 19!#

abor a1; *legal 8ismissal; 8ismissal 1it" out :ust

cause of an employee from "is employment$ a 0iolation

of t"e abor Code$ but 1"ic" does not amount to an

offense under said Code; +ffense$< concept of #N eril& the dismissal %ithout /ust cause of an emplo&eefrom his emplo&ment constitutes a violation of the *abor Code and its implementing rules and regulations# uchviolation ho%ever does .ot amount to an GoffenseH asunderstood under A"ticle 291 o0 te Lao" Code @n its

broad sense an offense is an illegal act %hich does notamount to a crime as defined in the penal la% but %hich

b& statute carries %ith it a penalt& similar to thoseimposed b& la% for the punishment of a crime# @t is inthis sense that a general penalt& clause is provided under A"ticle 2!9 o0 te Lao" Code %hich provides that G any violation of the provisions of this Code declared to

be unlawful or penal in nature shall be punished with a

fine of not less than Dne &housand *esos I6"333#33J nor more than &en &housand *esos I63"333#33J" or

imprisonment of not less than three I8J months nor more

than three I8J years" or both such fine and imprisonment

at the discretion of the court#1

%e"iatio o0 a eploet it o-t E-st ca-se,

ot a -la0-l p"actice Reaso#NThe confusionarises over the use of the term Gillegal dismissalH %hichcreates the impression that termination of an emplo&ment

%ithout /ust cause constitutes an offense# @t must benoted ho%ever that unlike in cases of commission of an&of the prohibited activities during strikes or lockoutsunder Article 4<5 unfair labor practices under Articles4:= 4:! and 45; and illegal recruitment activities under Article "= among others %hich the Code itself declaresto be unla%fal te"iatio o0 a eploet ito-t

E-st o" valid ca-se is ot cateo"iHed as a -la0-l

p"actice.

Relie0s p"icipall so-t a eploee illeall

disissed 0"o eploet Besides the reliefs principall& sought b& an emplo&ee %ho %as illegall&

dismissed from his emplo&ment are "eistateet to hisformer position without loss of seniority rights and privileges" if an& acaes ad daaes in casethere is bad faith in his dismissal# As an affirmativerelief reinstatement ma& be ordered %ith or %ithout

back%ages#

Reistateet ad acaes Aa"d o0 oe, ot a

coditio p"ecedet to a aa"d o0 te ote"

:acaes a e o"de"ed ito-t o"de"i

"eistateet N2hile ordinaril& reinstatement is aconcomitant of back%ages the t%o are not necessaril&complements nor is the a%ard of one a condition

precedent to an a%ard of the other# And in proper cases back%ages ma& be a%arded %ithout orderingreinstatement# @n either case no penalt& of fine nor imprisonment is imposed on the emplo&er upon a findingof illegalit& in the dismissal#

:acaes, ot te p"icipal ca-se o0 actio i a

illeal disissal case, -t te -la0-l dep"ivatio o0

oeKs eploet coitted te ep0oe"

Aa"d o0 acaes, at-"e ad cocept o0. @t istrue that the Gback%agesH sought b& an illegall&

dismissed emplo&ee ma& be considered b& reason of its practical effect as a Gmone& claim#H .o%ever it is notthe principal cause of action in an illegal dismissal case

but the unla%ful deprivation of one’s emplo&mentcommitted b& the emplo&er in violation of the right of anemplo&ee# Back%ages is merel& one of the reliefs %hichan iiiegaii& dismissed emplo&ee pra&s the labor arbiter and the 7*C to render in his favor as a conse9uence of the unla%ful act committed b& the emplo&er# The a%ardthereof is not private compensation or damages but is infurtherance and effectuation of the public ob/ectives of the *abor Code# +ven though the practical effect is theenrichment of the individual the a%ard of back%ages isnot in redress of a private right but rather is in thenature of a command upon the emplo&er to make publicreparation for his violation of the *abor Code#>"esc"iptio; Actio 0o" illeal disissal p"esc"ies i

4 ea"s -de" te Civil Code3 Action for damages dueto separation from emplo&ment for alleged un/ustifiablecauses is one for in/ur& to plaintiffand must be brought

%ithin : &ears#NThe case of alencia vs# Cebu 8ortlandCement et al 1;< 8hi* 6"4 a 1!5! case cited b&

petitioner is applicable in the instant case insofar as itconcerns the issue of prescription of actions# @n said casethis Court had occasion to hold that an action for damages involving a plaintiff separated from hisemplo&ment for alleged un/ustifiable causes is one for Gin/ur& to the rights of the plaintiff and must be brought%ithin four :U &ears#H @n antos vs# Court of Appeals !<CA ::= 1!=;U this Court thru then Chief Fustice+nri9ue '# ernando sustained the stand of the oiicitor eneral that the period of prescription mentioned under Article 4=1 no% Article 4!4 of the *abor Code refers

to and Gis limited to mone& claims all other cases of in/ur& to rights of a %orkingman being governed b& theCivil Code#H Accordingl& this Court ruled that petitioner 'arciana antos %ho sought reinstatement had four :U&ears %ithin %hich to file her complaint for the in/ur& toher rights as provided under Article 11:< of the CivilCode#

Aour$year prescriptive period under %rt# 66KG of the

Civil Code applies by way of supplement to the 'abor

Code> @ndeed there is merit in the contention of petitioner that the four :U-&ear prescriptive period under Article 11:< of the 7e% Civil Code applies b& %a& of

supplement in the instant case# %trict application of Arts! 3B& and3B3 of t"e abor

Code pro0iding for a -year prescripti0e period does not

destroy enforcement of fundamental rig"ts

ofemployees; Articles 3B& and 3B3 go to matters of

remedy$ not destruction of t"e fundamental rig"t;

%tatute of limitations e>tinguis" t"e remedy only#N +ven on the assumption that an action for illegaldismissal falls under the categor& of GoffensesH or Gmone& claimsH under A"ticles 291 ad 292 *abor Code %hich provide for a t"ee6ea" p"esc"iptive

pe"iod, still a strict application of said provisions %illnot destro& the enforcement of fundamental rights of theemplo&ees# As a statutor& provision on limitations of actions Articles 4!1 and 4!4 go to matters of remed&and not to the destruction of fundamental rights# As ageneral rule a statute of limitation etinguishes theremed& onl&# Although the remed& to enforce a right ma&

be barred that right ma& be enf orced b& some other available remed& %hich is not barred#

$AC%S

46



LABOR RELATIONS

8etitioner irgilio Callanta %as emplo&ed b& private respondent Carnation 8hilippines @nc#Carnation for brevit&U in Fanuar& 1!6: as a salesman inthe Agusan del ur area# ive 5U &ears later or on Fune 11!6! respondent Carnation filed %ith the egional,ffice 7o# W of the 'inistr& of *abor and +mplo&ment',*+U an application for clearance to terminate theemplo&ment of irgilio Callanta on the alleged groundsof serious misconduct and misappropriation of compan&funds amounting to 8l4;;;#;; more or less#$pon approval on Fune 4< 1!6! b& ',*+ egionalirector eli?ardo # Baterbonia of said clearanceapplication petitioner irgilio Callanta’s emplo&ment%ith Carnation %as terminated effective Fune 11!6!#,n Ful& 5 1!=4 irgilio Callanta filed %ith the ',*+egional ,ffice 7o# W a complaint for illegal disinissal%ith claims for reinstatement back%ages and damagesagainst respondent Carnation#@n its position paper dated ,ctober 51!=4 respondentCarnation put in issue the timeliness of petitioner’s

complaint alleging that the same is barred b& prescriptionfor having been filed more than three "U &ears after thedate of Callanta’s dismissal#,n 'arch 4:1!=" *abor Arbiter 8edro C# amosrendered a decision finding the termination of Callanta’semplo&ment to be %ithout valid cause# espondentCarnation %as therefore ordered to reinstate irgilioCallanta to his former position %ith back%ages of one1U &ear %ithout 9ualification including all fringe

benefits provided for b& la% and compan& polic& %ithinten 1;U da&s from receipt of the decisibn# @t %as like%ise

provided that failure on the part of respondent to compl&%ith the decision shall entitle complainant to full

back%ages and all fringe benefits %ithout loss of seniorit& rights#

,n April 1=1!=" respondent Carnation appealed torespondent 7ational *abor elations Commission7*CU %hich in a decision dated ebruar& 451!=51set aside the decision of the *abor Arbiter# @t declared thecomplaint for illegal dismissal filed b& irgilio Callantato have alread& prescribed

&SS'

hether or not the filing of an action by

petitioner irgilio Callanta for illegal dismissal against

his employer had already prescribed pursuant to threeI8J years prescriptive period provided in %rticles 526

and 525 of the 'abor CodeH

L*

N+. The court grant the petition and thedecision of the 7*C is hereb& reversed and set aside#Although 2e are strongl& inclined to affirm that part of the decision of the *abor Arbiter ordering thereinstatement of petitioner to his former position %ithoutloss of seniorit& rights and privileges a superveningevent %hich petitioner mentioned in his motion for earl&decision dated Fanuar& < 1!=<1= that is @*@8, @ncDstaking over the business of Carnation has legall&rendered the order of reinstatement difficult to enforceunless there is an epress agreement on assumption of liabilities1! b& the purchasing corporation @*@8,

@nc# Besides there is no la% re9uiring that the purchasingcorporation should absorb the emplo&ees of the sellingcorporation#4; @n an& case the ver& concept of social

/ustice dictates that petitioner shall be entitled to back%ages of three "U &ears#

R'L&NG

The respondent Carnation 8hilippines @nc# ishereb& ordered to pa& petitioner irgilio Callanta

back%ages for three "U &ears %ithout 9ualification anddeduction# This decision is immediatel& eecutor&# 7ocosts#

MAR&A OA%R&NA S. %AN8'SA? LL:6&&&

Documents

Labrel ((34 Cases)