15. REGULAR EMPLOYEE were hired and for as long as such activities exist.
were hired and for as long as such activities exist. In this relation, the Court
University of Santo Tomas (UST) vs. Samahang Manggagawa Ng UST,
et.al., G.R. No. 184262, April 24, 2017).
Almirante: Regularized casual employees Friday, January 26, 2018 By
DOMINADOR A. ALMIRANTE LABOR CASE DIGEST
RESPONDENTS Samahang Manggagawa Ng UST, Fernando Pontesor and 3
others filed a complaint for regularization and illegal dismissal against
petitioner University of Santo Tomas (UST). They alleged that on various
periods spanning the years 1990-1999, petitioner repeatedly hired them to
perform various maintenance duties within its campus, i.e., as laborer,
mason, tinsmith, painter, electrician, welder and carpenter. They argued
that their jobs are necessary and desirable to the business of petitioner in
the maintenance of its rooms, buildings, and facilities. On the other hand,
petitioner maintained that respondents were merely hired on a per-project
basis, as evidenced by numerous contractual employee appointments
(CEAs) signed by them. Each of the CEAs defined the nature and term of
the project to which they are assigned. Their project employment were
automatically terminated: (a) upon the expiration of the specific term
specified in the CEA; (b) when the project is completed ahead of such
expiration; or (c) in cases when their employment was extended due to the
non-completion of the specific project for which they were hired, upon the
completion of the said project. The Court of Appeals (CA) reversed and set
aside the resolution of the National Labor Relations Commission (NLRC)
and reinstated the decision of the Labor Arbiter (LA) declaring
respondents as regular employees of petitioner. Did the CA err? Ruling: No.
Under the foregoing provision (Art. 295 [280]), the law provides for two
types of regular employees, namely: (a) those who are engaged to perform
activities, which are usually necessary or desirable in the usual business or
trade of the employer (first category); and (b) those who have rendered at
least one year of service, whether continuous or broken, with respect to
the activity in which they are employed (second category). x x x In the case
at bar, a review of Pontesor, et al.’s respective CEAs reveal that petitioner
repeatedly rehired them for various positions in the nature of maintenance
workers, such as laborer, mason, painter, tinsmith, electrician, carpenter,
and welder, for various periods spanning the years 1990-1999. Akin to the
situation of the employees in Kimberly, Pontesor, et al.’s nature of work are
not necessary and desirable to petitioner’s usual business as an
educational institution; hence, removing them from the ambit of the first
category of regular employees under Article 295 of the Labor Code.
Nonetheless, it is clear that their respective cumulative periods of
employment as per their respective CEAs each exceed one year. Thus,
Pontesor, et al. fall under the second category of regular employees under
Article 295 of the Labor Code. Accordingly, they should be deemed as
regular employees but only with respect to the activities for which they
petitioner Convoy Marketing effective that date. In July 26, 2004, Albia filed
clarifies that Pontesor, et al. were not project employees of petitioner, who
were validly terminated upon the completion of their respective
projects/undertakings. x x x As aptly held by the CA, Pontesor, et al. could
not be considered as project employees because the specific undertakings
or projects for which they were employed were not clearly delineated. This
is evidenced by the vagueness of the project descriptions set forth in their
respective CEAs, which states that they were tasked “to assist” in various
carpentry, electrical, and masonry work. In fact, when the aforesaid CEAs
are pieced together, it appears that during the years 1990 to 1999,
Pontesor, et al. were each engaged to perform all-around maintenance
services throughout the various facilities/installations in petitioner’s
campus. Thus, it seems that petitioner, through the CEAs, merely attempted
to compartmentalize Pontesor, et al.’s various tasks into purported
“projects” so as to make it appear that they were hired on a per-project
basis. Verily, the Court cannot countenance this practice as to do so would
effectively permit petitioners to avoid hiring permanent or regular
employees by simply hiring them on a temporary or casual basis, thereby
violating the employees’ security of tenure relative to their jobs. x x x In
view of the foregoing, Pontesor, et al. should, as discussed earlier, be
considered regularized casual employees who enjoy, inter alia, security of
tenure. Accordingly, they cannot be terminated from employment without
any just and/or authorized cause, which unfortunately, petitioner was
guilty of doing in this case. Hence, Pontesor, et al. must be reinstated to
their former or equivalent positions, with full backwages and without loss
of seniority rights. As pointed out by the LA, the NLRC Computation &
Examination Unit should be directed to compute the monetary awards that
petitioner should be ordered to pay Pontesor, et al. as a consequence of this
ruling. (Perlas-Bernabe, J., SC 1st Division, University of Santo Tomas
(UST) vs. Samahang Manggagawa Ng UST, et.al., G.R. No. 184262, April
24, 2017).
16. REGULAR NOT INDEPENDENT
Convoy Marketing Corporation And/Or Arnold Laab vs. Oliver B.
Albia, G.R. No. 194969, October 07, 2015).
Almirante: Not a contractor but a regular employee LABOR CASE DIGEST
RESPONDENT Oliver B. Albia was hired in 2001 by petitioner Convoy
Marketing Corp. as a pahinante or one who loads and unloads cargoes
transported to customers by the delivery vehicles of the company. A year
later, he was promoted to delivery van driver. He was paid a fixed salary of
P290 per trip regardless of route. The delivery van he drove was owned by
the company, which shouldered its maintenance and gasoline costs. In July
22, 2004, he was detected to have smelled of liquor upon his arrival from
the delivery route. He was reported to the logistics manager, petitioner
Arnold Laab. In a memorandum on July 23, the next day, he was told that
management decided to terminate his delivery agency agreement with
a complaint for illegal dismissal and non-payment of wage benefits. In
defense, Convoy Marketing contended that Albia was not an employee but
an independent contractor. Petitioners presented a series of delivery
agency agreements signed by Albia to correspond to particular periods of
service. Did the defense prosper?
Ruling: No. Contrary to petitioners’ claim, the fact that Convoy has 15
regular drivers only underscores that indeed, having been hired as a driver,
Albia was engaged to perform an activity which is necessary or desirable in
the usual company business of marketing and distribution of bottled
wines, liquor and bottled water. No less than Convoy’s daily trip summary
breakdowns contradict petitioners’ allegation that Albia is only an on-call
driver who does not have to report for work daily. That Albia has become a
regular employee is evident from the delivery agency agreements (for
driver) - executed for the periods of Nov. 22, 2002 to April 22, 2003, May
29, 2003 to Oct. 29, 2003, Nov. 11, 2003 to April 10, 2004, and April 13,
2004 to Sept. 13, 2004 - which indicate that he had rendered at least one
year of broken service with respect to the same activity in which he was
employed from the time he was hired as a driver on Nov. 22, 2002 until he
was terminated on July 23, 2004. The Court cannot likewise sustain
petitioners’ claim that Albia is an independent contractor. The test of
independent contractorship is whether one claiming to be an independent
contractor has contracted to do the work according to his own methods
and without being subject to the control of the employer, except only as to
the results of the work. The criteria in determining the existence of an
independent and permissible contractor relationship are as follows: x x x
Whether or not the contractor is carrying on an independent business; the
nature and extent of the work; the skill required; the term and duration of
the relationship; the right to assign the performance of a specified piece of
work; the control and supervision of the work to another; the employer’s
power with respect to the hiring, firing and payment of the contractor’s
workers; the control of the premises; the duty to supply the premises,
tools, appliances, materials, and labor; and the mode, manner and terms of
payment. Applying the foregoing criteria, Albia cannot be considered as an
independent contractor. There is no dispute that it was Convoy who
engaged the services of Albia as a driver without the intervention of a third
party, paid his wages on a per trip basis, and abruptly terminated his
services the next day after admitting to have consumed three bottles of
beer after finishing his deliveries on July 22, 2004. There is, likewise, no
question that Convoy controls or has reserved its right to control Albia’s
conduct, not only as to the result of his work but also as to the means and
methods by which such result is to be accomplished.
17. REINSTATEMENT
Froilan M. Bergonio, Jr., et. al. vs. South East Asian
Airlines and Irene Dornier, G.R. No. 195227, April 21,
2014).
Almirante: Accrued wages
IN A decision dated May 31, 2005, the Labor Arbiter (LA) found the
petitioners Froilan M. Bergonio Jr. and nine others illegally dismissed
and ordered respondents South East Asian Airlines and Irene Dornier,
among others, to immediately reinstate the petitioners with full back
wages. For failure of respondents to reinstate petitioners despite
respondents’ manifestation to reinstate them in the payroll, the
petitioners filed before the LA a manifestation for their immediate
reinstatement. On Oct. 3, 2005, respondents filed an opposition to the
motion. On Jan. 31, 2008, the petitioners filed with the LA an Urgent Ex-
Parte Motion for the Immediate Release of the Garnished Amount,
which was granted. In its July 16, 2008 resolution, the National Labor
Relations Commission (NLRC) affirmed in toto the LA’s order. It denied
the respondents’ motion for reconsideration for lack of merit. The Court
of Appeals (CA) reversed and set aside the decision and resolution of
the NLRC. It ruled further that the computation of petitioners’ accrued
wages stopped when they failed to report for work on Feb. 24, 2006 per
respondents’ memorandum of Feb. 21, 2006.
Did the CA err? Ruling: Yes. Our careful consideration of the facts and
the circumstances that surrounded the case convinced us that the delay
in the reinstatement pending appeal was due to the respondents’ fault.
For one, the respondents filed several pleadings to suspend the
execution of the LA’s reinstatement order, i.e., the opposition to the
petitioners’ motion for execution filed on Oct. 3, 2005; the motion to
quash the Oct. 7, 2005 writ of execution with prayer to hold in abeyance
the implementation of the reinstatement order; and the motion to
suspend the order for the petitioners’ reinstatement filed on Feb. 28,
2006 after the LA issued the Feb. 16, 2006 alias writ of execution.
These pleadings, to our mind, show a determined effort on the
respondents’ part to prevent or suspend the execution of the
reinstatement pending appeal. All told, the delay was due to the acts of
the respondents that we find were unjustified. We reiterate and
emphasize, Article 223, paragraph 3, of the Labor Code mandates the
employer to immediately reinstate the dismissed employee, either by
actually reinstating him/her under the conditions prevailing prior to the
dismissal or, at the option of the employer, in the payroll. The
respondents’ failure to exercise either option rendered them liable for
the petitioners’ accrued salary until the LA decision was reversed by the
CA on Dec. 17, 2008. We find that the NLRC, in affirming the release of
the garnished amount, merely implemented the mandate of Article 223;
it recognized as immediate and self-executory the reinstatement aspect
of the LA’s decision. Accordingly, we reverse for legal errors the CA
decision. We find no grave abuse of discretion attended the NLRC’s
July 16, 2008 resolution that affirmed the March 13, 2008 decision of
the LA granting the release of the garnished amount.
18. RESIGNATION; CONSTRUCTIVE DISMISSAL?
(Peralta, J., SC 2nd Div., Luis S. Doble, Jr. v. ABB In. and Nitin Desai, G.R.
No. 215627, June 5, 2017).
In illegal dismissal cases, the fundamental rule is that when an employer
interposes the defense of resignation, the burden to prove that the employee
indeed voluntarily resigned necessarily rests upon the employer. 24 The concepts
of constructive dismissal and resignation are discussed in Gan v. Galderma
Philippines, Inc., 25 thus:
To begin with, constructive dismissal is defined as quitting or cessation of work
because continued employment is rendered impossible, unreasonable or
unlikely; when there is a demotion in rank or a diminution of pay and other
benefits. It exists if an act of clear discrimination, insensibility, or disdain by an
employer becomes so unbearable on the part of the employee that it could
foreclose any choice by him except to forego his continued employment. There is
involuntary resignation due to the harsh, hostile, and unfavorable conditions set
by the employer. The test of constructive dismissal is whether a reasonable
person in the employee's position would have felt compelled to give up his
employment/position under the circumstances.
On the other hand, "[r]esignation is the voluntary act of an employee who is in a
situation where one believes that personal reasons cannot be sacrificed in favor
of the exigency of the service, and one has no other choice but to dissociate
oneself from employment. It is a formal pronouncement or relinquishment of an
office, with the intention of relinquishing the office accompanied by the act of
relinquishment. As the intent to relinquish must concur with the overt act of
relinquishment, the acts of the employee before and after the alleged resignation
must be considered in determining whether he or she, in fact, intended to sever
his or her employment."26
Since Doble claims to have been forced to submit a resignation letter, it is
incumbent upon him to prove with clear and convincing evidence that his
resignation was not voluntary, but was actually a case of constructive
dismissal, i.e., a product of coercion or intimidation. 37 Coercion exists when there
is a reasonable or well-grounded fear of an imminent evil upon a person or his
property or upon the person or property of his spouse, descendants or
ascendants.38 The requisites for intimidation to vitiate one's consent are stated
in St. Michael Academy v. NLRC,39thus:
.... (1) that the intimidation caused the consent to be given; (2) that the
threatened act be unjust or unlawful; (3) that the threat be real or serious, there
being evident disproportion between the evil and the resistance which all men
can offer, leading to the choice of doing the act which is forced on the person to
do as the lesser evil; and (4) that it produces a well-grounded fear from the fact
that the person from whom it comes has the necessary means or ability to inflict
the threatened injury to his person or property x x x.
Almirante: Certified copies of annexes Friday, March 16, 2018 By
DOMINADOR A. ALMIRANTE LABOR CASE DIGEST PETITIONER Luis S.
Doble, Jr. filed a complaint for illegal dismissal with prayer for
reinstatement and payment of backwages, other monetary claims and
damages against respondents ABB, Inc. and Nitin Desai. Dissatisfied with
the National Labor Relations Commission (NLRC) decision and resolution,
petitioner filed a petition for certiorari before the Court of Appeals (CA).
The CA dismissed outright the petition because “the assailed National
Labor Relations Commission (NLRC) Decision and Resolution attached are
mere ‘CERTIFIED PHOTOCOP (IES)’ and not duplicate originals or certified
true copies.” The CA also denied petitioner’s motion for reconsideration
because the NLRC decision and resolution attached to the petition were
certified “photo” copies, unlike the specific requirement for a certified
“true” copy, or a “clearly legible duplicate original or certified true copy” of
the assailed disposition. Did the CA commit a reversible error? Ruling: Yes.
First, the CA gravely erred in dismissing the petition on the ground that the
assailed NLRC decision and resolution attached are mere “certified
photocopies” and not duplicate originals or certified true copies. The CA’s
inordinate nitpicking on procedural requirements is contrary to the Court’s
ruling in Coca-Cola Bottlers Phils., Inc. v. Cabalo, 516 Phil. 327 (2006): The
problem presented is not novel. In fact, it is a fairly recurrent one in
petitions for certiorari of NLRC decisions as it seems to be the practice of
the NLRC to issue certified “Xerox copies” only instead of certified “true
copies.” We have, however, put an end to this issue in Quintano v. NLRC
when we declared that there is no substantial distinction between a
photocopy or a “Xerox copy” and a “true copy” for as long as the photocopy
is certified by the proper officer of the court, tribunal, agency or office
involved or his duly-authorized representative and that the same is a
faithful reproduction of the original. We held therein: The submission of
the duplicate original or certified true copy of judgment, order, resolution
or ruling subject of a petition for certiorari is essential to determine
whether the court, body or tribunal, which rendered the same, indeed,
committed grave abuse of discretion. The provision states that either a
legible duplicate original or certified true copy thereof shall be submitted.
If what is submitted is a copy, then it is required that the same is certified
by the proper officer of the court, tribunal, agency or office involved or his
duly-authorized representative. The purpose for this requirement is not
difficult to see. It is to assure that such copy is a faithful reproduction of the
judgment, order, resolution or ruling subject of the petition. x x x x x x x x x
Indeed, for all intents and purposes, a certified photo copy is no different
from a certified true copy of the original document. The operative word in
the term certified true copy under Section 3, Rule 46 of the Rules of Court
is certified. The word means made certain. It comes from the Latin word
certificare meaning, to make certain. Thus, as long as the copy of the
assailed judgment, order, resolution or ruling submitted to the court has
been certified by the proper officer of the court, tribunal, agency or office
involved or his duly-authorized representative and that the same is a
faithful reproduction thereof, then the requirement of the law has been month salary for every year of service, a fraction of at least six (6) months
complied with. It is presumed that, before making the certification, the being considered as one whole year.
authorized representative had compared the photocopy with the original
Doubtless, under this provision, the retirement age is primarily
and found the same a faithful reproduction thereof. In this case, a perusal
determined by the existing agreement or employment contract. Only in the
of the attached NLRC decision and resolution shows that they are indeed
absence of such an agreement shall the retirement age be fixed by law,
certified photocopies of the said decision and resolution. Each page of the which provides for a compulsory retirement age at 65 years, while the
NLRC Decision and the Resolution has been certified by the NLRC Sixth minimum age for optional retirement is set at 60 years. 25cralawred
Division’s Deputy Clerk of Court, lawyer Cherry P. Sarmiento, who is
undisputedly the proper officer to make such certification. Moreover, the Retirement plans allowing employers to retire employees who have not yet
attached copies of the NLRC decision and resolution appear to be faithful reached the compulsory retirement age of 65 years are not per se
repugnant to the constitutional guaranty of security of tenure. By its
reproductions. Thus, there is substantial compliance with Section 1, Rule
express language, the Labor Code permits employers and employees to fix
65 of the Rules of Court, which provides that any petition filed under Rule
the applicable retirement age at 60 years or below, provided that the
65 should be accompanied by a certified true copy of the judgment, order employees' retirement benefits under any CBA and other agreements shall
or resolution subject thereof not be less than those provided therein.
Here, the Court is of the view that the quitclaim was validly executed. For
19. RETIREMENT PLAN the consideration of the quitclaim, Sagaysay received the amount of
P98,376.14. As admitted by him, the amount was based on a liquidation
G.R. No. 214961, September 16, 2015 data sheet which showed the computation of benefits and emoluments of a
rank and file employee.41 Understandably, the amount given would not
reflect the retirement benefits he demanded because he did not qualify
BANCO DE ORO UNIBANK, INC., Petitioner, v. GUILLERMO C. under the retirement plan of BDO for he had not completed five (5) years
SAGAYSAY, Respondent. of service upon his compulsory retirement. Thus, the consideration
WHETHER THE RETIREMENT PLAN IS VALID AND EFFECTIVE AND, provided in the quitclaim was justified and reasonable.
CONSEQUENTLY, THE MANDATORY RETIREMENT AGE OF 60 YEARS
OLD IS ALSO BINDING
WHETHER THE EXECUTION OF A RELEASE, WAIVER AND QUITCLAIM
20. RETRENCHMENT REQUISITES
BY RESPONDENT IS VALID.ChanRoblesVirtualawlibrary
GR No. 203932, Jun 08, 2016 ]PHILIPPINE AIRLINES v.
The Court finds the petition meritorious. ENRIQUE LIGAN +
The petition essentially centers on whether the June 1, 1994 retirement
plan is valid and effective against Sagaysay. To resolve this issue, a review
While retrenchment is a valid exercise of management prerogative, it is
well settled that economic losses as a ground for dismissing an employee is
of the relevant laws and jurisprudence regarding the compulsory factual in nature, and in order for a retrenchment scheme to be valid, all of
retirement age is warranted. the following elements under Article 283 of the Labor Code must concur or
be present,[41] to wit:
Laws and jurisprudence on early age of retirement
(1) That retrenchment is reasonably necessary and likely to prevent
Retirement is the result of a bilateral act of the parties, a voluntary
business losses which, if already incurred, are not merely de minimis, but
agreement between the employer and the employee whereby the latter,
substantial, serious, actual and real, or if only expected, are reasonably
after reaching a certain age, agrees to sever his or her employment with
imminent as perceived objectively and in good faith by the employer;
the former.24 Article 287 of the Labor Code is the primary provision which
governs the age of retirement and states:chanRoblesvirtualLawlibrary
(2) That the employer served written notice both to the employees and to
the Department of Labor and Employment at least one month prior to the
Art. 287. Retirement. xxx
intended date of retrenchment;
In the absence of a retirement plan or agreement providing for (3) That the employer pays the retrenched employees separation pay
retirement benefits of employees in the establishment, an employee equivalent to one (1) month pay or at least one-half QA) month pay for
upon reaching the age of sixty (60) years or more, but not beyond sixty-five every year of service, whichever is higher;
(65) years which is hereby declared the compulsory retirement age, who
has served at least five (5) years in the said establishment, may retire and (4) That the employer exercises its prerogative to retrench employees in
shall be entitled to retirement pay equivalent to at least one-half (1/2) good faith for the advancement of its interest and not to defeat or
circumvent the employees' right to security of tenure; and,
(5) That the employer uses fair and reasonable criteria in ascertaining who
would be dismissed and who would be retained among the employees,
such as status, efficiency, seniority, physical fitness, age, and financial
hardship for certain workers.
The absence of one element renders the retrenchment scheme an irregular
exercise of management prerogative. The employer's obligation to exhaust
all other means to avoid further losses without retrenching its employees
is a component of the first element enumerated above. To impart
operational meaning to the constitutional policy of providing full
protection to labor, the employer's prerogative to bring down labor costs
by retrenching must be exercised essentially as a measure of last resort,
after less drastic means have been tried and found wanting. [42]
PAL has insisted that the NLRC erroneously relied on an inexistent CA
decision, and therefore its decision is void, but the CA in its resolution of
September 27, 2012 has concluded that "[a] perusal of the Decision of the
NLRC shows that it is not without basis," [43] that the NLRC "made findings
of facts, analyzed the legal aspects of the case taking into consideration the
evidence presented and formed conclusions after noting the relevant facts
of the case."[44] But more importantly, the Court cannot lose sight of the
settled rule that in illegal dismissal cases, the onus to prove that the
employee was not dismissed, or if dismissed, that his dismissal was not
illegal, rests on the employer, and that its failure to discharge this burden
signifies that the dismissal is not justified and therefore illegal.
[45]
Unfortunately, in this petition, PAL has advanced no such justification
whatsoever to dismiss or retrench the respondents. The Court is left with
no conclusion: PAL's petition is misleading and clearly baseless and
dilatory.
WHEREFORE, the motion for reconsideration is DENIED with finality.
21. SECURITY GUARD OFF DETAIL
., Spectrum Security Services, Inc. v. David
Grave,et.al,G.R. No. 196650, January 7, 2017).
Almirante: Floating status of security guards Friday, March 02, 2018 By
DOMINADOR A. ALMIRANTE LABOR CASE DIGEST PETITIONER Spectrum Security
Services, Inc. employed respondents David Grave and six others as security guards
and posted them at the premises of Ibiden Philippines, Inc. (Ibiden) located at the
First Philippine Industrial Park in Sto. Tomas, Batangas. The petitioner implemented
an action plan as part of its operational and manpower supervision enhancement
program geared towards the gradual replacement of security guards at Ibiden. Thus,
it issued separate “notice(s) to return to unit” to the respondents in July and August
2008, directing them to report to its head office and to update their documents for
reassignment. On Aug. 14, 2008, the respondents filed their complaint against the
petitioner for constructive dismissal, claiming that the implementation of the action
plan was a retaliatory measure against them for bringing several complaints to
recover unpaid holiday pay and 13th moth pay. When the case reached the Court of
Appeals (CA), it promulgated on March 1, 2011 a decision dismissing the petition for
certiorari. It concluded that although the complaint for illegal dismissal was
prematurely filed because six months had not yet elapsed to warrant considering the
dismissal as constructive dismissal, the continued failure to give the respondents
new assignments during the proceedings before the Labor Arbiter that exceeded the
reasonable six-month period rendered the petitioner liable for constructive
dismissal of the respondents. Did the CA err? Ruling: Yes. We cannot uphold the CA.
Security guards, like other employees in the private sector, are entitled to security of
tenure. However, their situation should be differentiated from that of other
employees or workers. The employment of security guards generally depends on
their employers’ contracts with clients who are third parties to the employment
relationship, and the requirements of the latter for security services and what will
be beneficial to them dictate the posting of the security guards. It is also relevant to
mention that their employers retain the management prerogative to change their
assignments and postings, and to decide to temporarily relieve them of their
assignments. In other words, their security of tenure, though it shields them from
demotions in rank or diminutions of salaries, benefits and other privileges, does not
vest them with the right to their positions or assignments that will prevent their
transfers or re-assignments (unless the transfers or re-assignments are motivated
by discrimination or bad faith, or effected as a form of punishment or demotion
without sufficient cause). Such peculiar conditions of their employment render
inevitable that some of them just have to undergo periods of reserved or off-detail
status that should not by any means equate to their dismissal. Only when the period
of their reserved or off-detail status exceeds the reasonable period of six months
without reassignment should the affected security guards be regarded as dismissed.
Indeed, there should be no indefinite layoffs. After the period of six months, the
employers should either recall the affected security guards to work or consider them
permanently retrenched pursuant to the requirements of the law; otherwise, the
employers would be held to have dismissed them, and would be liable for such
dismissals. xxx Nor was the CA justified to simply dismiss the right of the petitioner
to implement the action plan and thereby effect the rotation and replacement of the
respondents as their security guards posted at Ibiden. We have already recognized
the management prerogative of the petitioner as their employer to change their
postings and assignments without severing their employment relationship.
Although the CA might have regarded the implementation of the action plan as
dubious because the petitioner had relieved the respondents from their posts at
Ibiden just 16 days after they had brought their complaint for the recovery of certain
money claims from the former, thereby imputing bad faith to the petitioner would be
bereft of factual or legal basis considering the failure of the respondents to
sufficiently establish the fact of their dismissal from their employment. In illegal
dismissal cases, the general rule is that the employer has the burden of proving that
the dismissal was legal. To discharge this burden, the employee must first prove, by
substantial evidence, that he had been dismissed from employment. In this case, We
find otherwise. Respondents failed to properly establish that they were dismissed by
the petitioner. Aside from the respondents’ plain allegation that they were illegally
dismissed by the petitioner, no other evidence was presented by the respondents to
support their contentions.
22. SENIORITY RIGHTS INTERPRETED
G.R. No. 196936 July 2, 2014MONCHITO R.
AMPELOQUIO vs.JAKA DISTRIBUTION, INC
Seniority rights refer to the creditable years of service in the employment record
of the illegally dismissed employee as if he or she never ceased working for the
employer. In other words, the employee’s years of service is deemed continuous
and never interrupted. Such is likewise the rationale for reinstatement’s twin relief
of full backwages.13
Ampeloquio is correct in asserting that he is a senior employee compared to the
other merchandisers whom he himself designates as casual or contractual
merchandisers. He is likewise senior to other regular employees subsequently
hired by JAKA, specifically two regular messenger employees which Ampeloquio
claims receive wages higher than what he is receiving from JAKA.
Attached to the recognition of seniority rights of a reinstated employee who had
been illegally dismissed is the entitlement to wages appurtenant thereto.
The case of Ampeloquio is outside the ordinary. His reinstatement was ordered
when merchandisers like him were no longer employed by JAKA.He is not
entitled to the same terms and conditions of employment as that which was
offered to the other regular employees (not merchandisers) subsequently hired
by JAKA.JAKA’s decision to grant or withhold certain benefits to other employees
is part of its management prerogative as a function of an employer’s
constitutionally protected right to reasonable return on investments. 14Ampeloquio
cannot likewise compare his wages to that received by "casual or contractual
merchandisers" or merchandisers who are admittedly outsourced from
manpower agencies or those who are considered seasonal employees hired only
during peak season when JAKA is in need of extra merchandisers.
To say the least, these merchandisers are not, strictly speaking, employees of
JAKA, but of a service provider company which has a service contract with
JAKA. The merchandisers in this case simply perform the work at JAKA’s outlets,
wearing uniforms approved by JAKA but provided by the service company who is
actually their employer. There is no employer-employee relationship between
JAKA and these merchandisers.
Section 8 of DOLE Department Order No. 10, series of 1997, illuminate:
Sec. 8. Job contracting.- There is job contracting permissible under the Code if
the following conditions are met:
(1) The contractor carries on an independent business and undertakes
the contract work on his own account under his own responsibility
according to his own manner and method, free from the control and
direction of his employer or principal in all matters connected with the
performance of the work except as to the results thereof; and
(2) The contractor has substantial capital or investment in the form of
tools, equipment, machineries, work premises, and other materials
which are necessary in the conduct of his business.
In the same vein, seasonal employees hired only for the peak season do not
have the same status as regular employees and do not receive amounts
considered as part of a compensation and benefits scheme for regular
employees. These seasonal employees only receive payment for work rendered
during the period for which they were hired, i.e., peak season. The wages and
other monies seasonal employees may receive for the duration of their limited
employment period constitute bulk or wholesale payment for services rendered.
Seasonal employment involves work or service that is seasonal in nature or
lasting for the duration of the season. Seasonal employees differ from those
classified as regular employees, in that: (1) the employee must be performing
work or services that are seasonal in nature; and (2) he had been employed for
the duration of the season.17
The phrase without loss of seniority rights applies with practical and real effect to
Ampeloquio upon his retirement because he will reach earlier than other regular
employees of JAKA the required number of years of service to qualify for
retirement.
In all, the labor tribunals were right in using as guidepost the existing statutory
minimum wages and COLA during the three (3) year prescriptive period within
which Ampeloquio can make his money claims.
We are not unaware that reinstatement is the rule and such covers reinstatement
to the same or substantially equivalent position without loss of seniority rights
and privileges.
In this case, JAKA did not claim exceptions to the rule of reinstatement, i.e.,(1)
strained relations, or (2) abolition of the position;18 JAKA immediately complied
with the Labor Arbiter’s order of reinstatement.We note that, specifically, JAKA
could have claimed that the position of merchandiser no longer exists and has
been abolished with the contracting of this job function. However, it merely opted
to reinstate Ampeloquio to the same position. There is no quarrel that with his
reinstatement, Ampeloquio is now the lone regular merchandiser of JAKA.
The option of reinstatement to a substantially equivalent position does not apply
herein as reinstatement to a substantially equivalent position entails the same or
similar job functions and not just same wages or salary. As applied to this case,
Ampeloquio cannot be reinstated to a messengerial position although such is a
regular employment enjoying the same employment benefits and privileges. His
employment cannot likewise be converted into a contractual employment as such
is actually a downgrade from his regular employment enjoying security of tenure
with JAKA.
As the sole regular merchandiser of JAKA, Ampeloquio’s reinstatement entitles
him, at the minimum, to the standard minimum wage at the time of his
employment and to the wages he would have received from JAKA had he not
been illegally dismissed, as if there was no cessation of employment.
Ampeloquio is likewise entitled to any increase which JAKA may have given
across the board to all its regular employees. To repeat, Ampeloquio is not
entitled to all benefits or privileges received by other employees subsequently
hired by JAKA just by the fact of his seniority in the service with JAKA.
The Court of Appeals was correct in its disquisition that:
x x x [W]ithout loss of seniority rights and benefits, this does not necessarily
mean equal or more rights than those employees hired by JAKA prior or
subsequent to his reinstatement.1âwphi1 The rule on how much pay a reinstated
employee shall receive is governed by paragraph 3 of Article 223 of the Labor
Code which provides as follows:
x x x In any event, the decision of the Labor Arbiter reinstating a dismissed or
separated employee, insofar as the reinstatement aspect is concerned, shall
immediately be executory, even pending appeal. The employee shall either be
admitted back to work under the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall not stay the execution for
reinstatement provided therein.
xxxx
When [Ampeloquio] was reinstated on August 6, 2004, he is entitled to receive a
salary under the same terms and conditions prevailing prior to his dismissal,
provided this complies with the minimum wage law prevailing at the time of
reinstatement, in consonance to Article 99, 100 of P.D. No. 442, as amended.
Thus, this Court finds and agrees with the computation by the NLRC of
[Ampeloquio's] wage rate. While he [ Ampeloquio] may have been ordered
reinstated to his former position without loss of seniority rights and benefits, this
Court cannot agree [with] the strained interpretation given by [Ampeloquio] that
since he is the most senior among his co-employees, he should be entitled to the
same amount of wages and benefits as that being received by them. x x x Thus,
when he was reinstated on August 6, 2004, the salary scale that governs shall be
the minimum wage rate then prevailing or his actual daily wage rate, which ever
is higher.19
WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in
CA-G.R. SP No. 104445 and the National Labor Relations Commission in NLRC
LAC No. 08-002252-07 are AFFIRMED. No costs.
23. SEPARATION PAY TO LEGALLY
TERMINATED EMPLOYEE
Supra Multi-Services, Inc., Jesus Tambunting, Jr., And
Rita Claire T. Dabu vs. Lanie M. Labatigan, G.R. No.
192297, August 3, 2016).
When the employee commits an act of dishonesty,
depravity, or iniquity, the grant of financial assistance is
misplaced compassion. It is tantamount not only to
condoning a patently illegal or dishonest act, but an
endorsement thereof. It will be an insult to all the laborers
who, despite their economic difficulties, strive to maintain
good values and moral conduct.
In fact, in the recent case of Toyota Motors Philippines, Corp.
Workers Association (TMPCWA) v. National Labor Relations
Commission, we ruled that separation pay shall not be granted to
all employees who are dismissed on any of the four grounds
provided in Article 282 of the Labor Code. Such ruling was
reiterated and further explained in Central Philippines Bandag
Retreaders, Inc. v. Diasnes: ChanRoblesVirtualawlibrary
To reiterate our ruling in Toyota, labor adjudicatory officials and
the CA must demur the award of separation pay based on social
justice when an employee's dismissal is based on serious
misconduct or willful disobedience; gross and habitual neglect of
duty; fraud or willful breach of trust; or commission of a crime
against the person of the employer or his immediate family -
grounds under Art. 282 of the Labor Code that sanction dismissals
of employees. They must be most judicious and circumspect in
awarding separation pay or financial assistance as the
constitutional policy to provide full protection to labor is not meant
to be an instrument to oppress the employers. The commitment of
the Court to the cause of labor should not embarrass us from
sustaining the employers when they are right, as here. In fine, we
should be more cautious in awarding financial assistance to the
undeserving and those who are unworthy of the liberality of the
law.
The fact that [the employer] did not suffer pecuniary damage will
not obliterate respondent's betrayal of trust and confidence
reposed by petitioner. Neither would his length of service justify
his dishonesty or mitigate his liability. His length of service
even aggravates his offense. He should have been more
loyal to petitioner company from which he derived his
family bread and butter for seventeen years.
While we sympathize with Capor's plight, being of
retirement age and having served petitioners for 39 years,
we cannot award any financial assistance in her favor
because it is not only against the law but also a
retrogressive public policy.We have already explained the folly
of granting financial assistance in the guise of compassion in the
following pronouncements: Certainly, a dishonest employee
ChanRoblesVirtualawlibrary
cannot be rewarded with separation pay or any financial benefit
after his culpability is established in two decisions by competent
labor tribunals, which decisions appear to be well- supported by
evidence. To hold otherwise, even in the name of compassion,
would be to send a wrong signal not only that "crime pays" but
also that one can enrich himself at the expense of another in the
name of social justice. And courts as well as quasi-judicial entities
will be overrun by "* petitioners mouthing dubious pleas for
misplaced social justice. Indeed, before there can be an occasion
for compassion and mercy, there must first be justice for all.
Otherwise, employees will be encouraged to steal and
misappropriate in the expectation that eventually, in the name of
social justice and compassion, they will not be penalized but
instead financially rewarded. Verily, a contrary holding will merely
encourage lawlessness, dishonesty, and duplicity. These are not
the values that society cherishes; these are the habits that it
abhors. (Emphases supplied, citations omitted.)
24. STRAINED RELATIONSHIP
G.R. No. 186002 : September 19,
APO CHEMICAL MANUFACTURING CORPORATION and MICHAEL CHENG,
Petitioners, v. RONALDO A. BIDES, , J.:
FACTS:
Ronaldo Bides (Bides) was an employee of Apo Chemical Manufacturing
Corporation (ACMC) for eleven (11) years. Matthew Cheng (Matthew), the
plant manager of ACMC, sent a written memorandum requiring Bides to
explain his refusal to sign the disciplinary form in connection with his
alleged infractions of loitering in the comfort room for about five (5) to
eight (8) minutes, two (2) to three (3) times a day, on March 5, 6, 7, 8, 9 and
10, 2003 under pain of revocation of his housing privileges. Bides
explained that urinating, as he was “nababalisawsaw” at the time, was not
an infraction.
Allegedly, Matthew confronted Bides and prohibited him from working the
following day as he would be terminated from the ACMC. Thus, Bides filed
a complaint for illegal dismissal against ACMC.
The LA ruled that Bides was illegally dismissed. The NLRC reversed the
LA’s decision. The CA affirmed with modification the NLRC’s decision. The
CA ruled that there was no illegal dismissal but ordered ACMC to pay Bides
separation pay in lieu of reinstatement, taking into account the strained
relations between the parties.
ISSUE: Whether strained relations exist between ACMC and Bides to bar
the latter’s reinstatement and justify the award of separation pay?
HELD: The Court finds no merit in the petition.
LABOR LAW: doctrine of strained relations
The Court is well aware that reinstatement is the rule and, for the
exception of “strained relations” to apply, it should be proved that it is
likely that, if reinstated, an atmosphere of antipathy and antagonism would
be generated as to adversely affect the efficiency and productivity of the
employee concerned.
Under the doctrine of strained relations, the payment of separation pay is
considered an acceptable alternative to reinstatement when the latter
option is no longer desirable or viable. On one hand, such payment
liberates the employee from what could be a highly oppressive work
environment. On the other hand, it releases the employer from the grossly
unpalatable obligation of maintaining in its employ a worker it could no
longer trust. Moreover, the doctrine of strained relations has been made
applicable to cases where the employee decides not to be reinstated and
demands for separation pay.
In the present case, Bides has consistently maintained, from the
proceedings in the LA up to the CA, his refusal to be reinstated due to his
fear of reprisal which he could experience as a consequence of his return.
By doing so, Bides unequivocally foreclosed reinstatement as a relief.
2012 DENIED.
25. SUBSTANTIAL CAPITAL
EMMANUEL D. QUINTANAR, et. al.,petitionervs COCA-
COLA BOTTLERS, PHILIPPINES, INC.,respondent
Petitioners were directly-hired employees of respondent as Route Helpers.
After working for quite some time, they were allegedly transferred as
agency workers to several manpower agencies. When DOLE conducted an
inspection to determine if labor standards were being complied with,
petitioners were declared to be regular employees and that respondent is
liable to pay. Petitioners were thereafter dismissed on various dates, and
their claims settled later. However, the settlement did not include the
issues on reinstatement and payment of CBA benefits. Hence, petitioners
filed a complaint for illegal dismissal. Respondent alleged that there was no
ER-EE relationship between them.LA declared that petitioners
were illegally dismissed, and ordered respondent to reinstate them and
to pay fullback wages. NLRC affirmed the LA decision.CA reversed &
set aside NLRC decision. The appellate court held that the manpower
agency is an independent contractor that exercises control over the
petitioners.
ISSUE:
(1) Whether or not an ER-EE relationship exists between the petitioners
and respondent.(2) Whether the manpower agencies are labor-only
contractors.
HELD:
YES.YES.CA decision set aside.
RATIO:
The Court held that petitioners still enjoyed an ER-EE relationship with
respondent since becoming employees of manpower agencies. To
determine whether an employment should be considered regular or
casual, the applicable test is the reasonable connection between
the particular activity performed by the employee in relation to the usual
business or trade of the employer. It has been established in jurisprudence
that Route Helpers are regular employees of respondent. The repeated
rehiring of respondent workers and the continuing need for their services
clearly attest to the necessity or desirability of their services in the regular
conduct of the business or trade of petitioner company. Furthermore, it has
already been established in jurisprudence that the manpower services
were a labor-only contractor since the work performed by the “supplied”
employees were indispensable to the principal business of respondent. In
fact, the manpower agencies were found to not have substantial capital or
investment or tool to engage in job contracting. Finally, the Court
determined the existence of an ER-EE relationship between the
parties since the contract of service between the respondent and the
manpower services showed that the former indeed exercised the power of
control over the complainants therein.
26. TECHNICAL RULES LIBERAL APPLICATION
, Edilberto P. Etom, Jr. vs. Aroma Lodging House
Through Eduardo G. Lem, Proprietor and General
Manager, G.R. No. 192955, November 09, 2015).
As a rule, the perfection of appeal within the period required by law is
mandatory and jurisdictional. Failure to appeal within such period results in the
assailed decision becoming final and executory. As regards a motion for
reconsideration of a decision of the NLRC, the same must be filed within 10 days
from the receipt of the assailed decision. It must, nevertheless, be emphasized that
the NLRC is not bound by the technical rules of procedure. Thus, in deciding labor
cases, the NLRC is allowed to liberally apply its rules. 41
In this case, petitioner alleges that the subject motion for reconsideration was filed
beyond the 10-day reglementary period. However, we note the explanation made by
respondent for the seeming late filing of its motion
wit:chanRoblesvirtualLawlibrary
x x x [I]t is public knowledge that May 23, 2009 happens to be a Saturday, hence,
under established rules and relevant jurisprudence, the filing of petitioners' (herein
respondent) Motion for Reconsideration should be on May 25, 2009, the next
working day after May 23, 2009. On May 25, 2009, Petitioners filed their Motion for
Reconsideration before the public respondent, however, through a glitch in the
docket machine date and time puncher of the NLRC at that date and hour, the
petitioners' Motion for Reconsideration date of filing was erroneously marked and
stamped as May 26, 2009 1:47 A.M. Petitioners only managed to take notice of the
mistake in the date and time of the docket of their Motion for Reconsideration on the
following day, May 26, 2009, the real May 26, 2009. Petitioners thence quickly went
to the NLRC Docket Section to report the mistake and x x x was [sic] told by the
Docket Section Personnel that they have already corrected the erroneous date and
time of petitioners' docketed Motion for Reconsideration to the x x x correct May 25,
2009, 1:47 P.M. and have forwarded the Motion for Reconsideration of the
[petitioners to the NLRC x x x Indeed, it would be plainly absurd for a government
office docket section like that of the public respondent NLRC to be open for business
at such unholy hour of 1:47 A.M. x x x42ChanRoblesVirtualawlibrary
Based on the foregoing explanation, we are convinced that respondent timely filed
its motion for reconsideration of the NLRC Decision. In fact, the NLRC took
cognizance of it and decided the motion on the merit.
In any event, we held in Opinaldo v. Ravina43 that the NLRC may liberally apply its
rules and decide a motion for reconsideration on the merits. We upheld the liberal
application by the NLRC of its technical rules to resolve the issues on the merits
because "a full resolution of the case on the merits is the more palpable explanation
for the liberal application of its rules."44
PETITIONER Edilberto P. Etom, Jr., was employed as a roomboy by respondent
Aroma Lodging House. He claimed that in Feb. 4, 2008, respondent refused to allow
him to report for work without informing him of any violation that would warrant
his dismissal. In April 15, 2008, he filed a complaint for illegal dismissal and asked
for salary differential, holiday pay, 13th month pay, and overtime pay. The Labor
Arbiter (LA) found petitioner to have been legally dismissed but awarded him
punitive damages amounting to P10,000 for non-compliance with the termination
notice requirement, salary differential computed at P199,482.80, holiday pay
amounting to P3,107.50 and 13th month pay of P7,150. The National Labor
Relations Commission (NLRC) affirmed the ruling of the LA but deleted the award of
punitive damages. The Court of Appeals (CA) reversed and set aside the decision of
the NLRC. The CA relied upon a notarized affidavit executed by petitioner stating
that he received wages above the required minimum salary. It also declared that
there is no factual basis to support the grant of 13th month pay and holiday pay in
favor of petitioner. Did the CA err?
Ruling: Yes. In addition, as a rule, once the employee has asserted with particularity
in his position paper that his employer failed to pay his benefits, it becomes
incumbent upon the employer to prove payment of the employee’s money claims. In
fine, the burden is on the employer to prove payment, rather than on the employee
to establish non-payment. Both the LA and the NLRC held that respondent did not
pay petitioner the required minimum wage, holiday pay and 13th month pay. The
CA, however, overturned the factual findings of these labor tribunals. Thus, we deem
it necessary to review the facts on record. While a notarized document is presumed
to be regular, such presumption is not absolute and may be overcome by clear and
convincing evidence to the contrary. The fact that a document is notarized is not a
guarantee of the validity of its contents. Here, petitioner is an unlettered employee
who may not have understood the full import of his statements in the affidavit.
Notably, petitioner, along with a co-worker, did not state the specific amount of what
they referred as salary above the minimum required by law. x x x. As found by the
LA, respondent did not present substantial evidence that it paid the required
minimum wage, 13th month pay and holiday pay in favor of petitioner. Respondent’s
to
mere reliance on the foregoing affidavit is misplaced because the requirement of
established jurisprudence is for the employer to prove payment, and not merely
deny the employee’s accusation of non-payment on the basis of the latter’s own
declaration. In conclusion, we find that the CA erred in ascribing grave abuse of
discretion on the part of the NLRC in awarding salary differential, 13th month pay
and holiday pay in favor of petitioner.
27.UNION SECURITY CLAUSE
UNITED POLYRESINS, INC., ERNESTO UY SOON, JR.,
AND/OR JULITO UY SOON, Petitioners, v.MARCELINO
PINUELA, Respondent.
WHAT HAPPENED IN THIS CASE?
RESPONDENT PINUELA, FORMER UNION PRESIDENT, WAS EXPELLED FROM
PETITIONER LABOR UNION. ON GROUND OF EXPULSION HE WAS DISMISSED. THE
ISSUE WAS WHETHER HIS DISMISSAL WAS VALID. THE COURT OF APPEALS RULED
THAT HIS DISMISSAL WAS NOT VALID BECAUSE HIS EXPULSION FROM THE UNION
WAS NOT VALID. THE GROUND RELIED UPON FOR EXPULSION WAS CAUSE FOR
IMPEACHMENT OF UNION OFFICERS AND NOT FOR EXPULSION. THE SUPREME
COURT AFFIRMED CA DECISION.
RESPONDENT WAS EXPELLED BECAUSE HE FAILED TO ACCOUNT CERTAIN UNION
FUND. WAS HIS EXPULSION VALID?
NO. BECAUSE HIS FAILURE TO ACCOUNT FOR CERTAIN FUNDS WAS NOT ONE OF
THE GROUNDS FOR EXPELLING A MEMBER. THESE GROUNDS PER THE
CONSTITUTION OF THE UNION ARE:
1. SUBVERSIVE OR PERSONS WHO PROFESS SUBVERSIVE IDEAS.
2. PERSONS WHO HAVE BEEN CONVICTED OF CRIME INVOLVING MORAL
TURPITUDE.
3. PERSONS WHO ARE NOT EMPLOYEES OF THE COMPANY.39
“A review of the PORF A Constitution itself reveals that the only provision
authorizing removal from the union is found in Article X, Section 6, that is, on the
ground of failure to pay union dues, special assessments, fines, and other mandatory
charges. 38 On the other hand, grounds for disqualification from membership may
be found in Article IV, which states that:
Section 3. The following are not eligible neither [sic] for membership nor to election
or appointment to any position in the union:
1. Subversive or persons who profess subversive ideas.
2. Persons who have been convicted of crime involving moral turpitude.
3. Persons who are not employees of the company.39”
BUT A CASE OF ESTAFA WAS ALREADY FILED AGAINST RESPONDENT. IS THIS NOT
A GROUND FOR EXPULSION?
NO. BECAUSE RESPONDENT IS NOT YET CONVICTED.
SPECIFICALLY, THE RESPONDENT FAILED TO RETURN THE P300,000.00 GIVEN BY
THE COMPANY TO THE UNION. CAN THIS NOT BE A JUST GROUND FOR THE
DISMISSAL?
NO. IN FACT THE CONTRIBUTION OF THE COMPANY TO THE UNION IS ILLEGAL.
“The matter of respondent’s alleged failure to return petitioners’ 1!300,000.00
which was lent to PORFA is immaterial as well. It may not be used as a ground to
terminate respondent’s employment; under the Labor Code, such a contribution by
petitioners to PORF A is illegal and constitutes unfair labor practice.

ART. 248. Unfair labor practices of employers. -It shall be unlawful for an employer
to commit any of the following unfair labor practice:
xx xx
(d) To initiate, dominate, assist or otherwise interfere with the formation or
administration of any labor organization, including the giving of financial or other
support to it or its organizers or supporters;42 (Emphasis supplied)”
The Court denies the Petition.
Respondent's expulsion from PORFA is grounded on Article XV, Section 1,
paragraphs (e) and (f) of the union's Constitution, which provides:
ARTICLE-XV
IMPEACHMENT AND RECALL
Section 1. Any of the following shall be ground for the impeachment or recall of the
union officers.
a. Committing or causing the commission directly or indirectly of acts against
the interest and welfare of the union;
b. Malicious attack against the union, its officers or against a fellow union
officer or member;
c. Failure to comply with the obligation to turn over and return to union
treasurer within three (3) days unexpanded [sic] sum of money received
from the money funds to answer for an authorized union purpose;
d. Gross misconduct unbecoming of a union officer;
e Misappropriation of union funds and property. This is without
prejudice to the filing of an appropriate criminal or civil action against
the responsible officer/(s) by any interested party;
f. Willful violation of any provision of the constitution or rules,
regulations, measures, resolution(s) and decision of the
union.37 (Emphasis supplied)
However, these provisions refer to impeachment and recall of union officers, and not
expulsion from union membership. This is made clear by Section 2(e) of the same
Article XV, which provides that "(t)he union officers impeached shall 'IPSO FACTO' to
[sic] be considered resigned or ousted from office and shall no longer be elected nor
appointed to any position in the union." In short, any officer found guilty of violating
these provisions shall simply be removed, impeached or recalled, from office, but not
expelled or stripped of union membership.
It was therefore error on the part of PORFA and petitioners to terminate
respondent's employment based on Article XV, Section 1, paragraphs (e) and (f) of
the union's Constitution. Such a ground does not constitute just cause for
termination.
A review of the PORFA Constitution itself reveals that the only provision authorizing
removal from the union is found in Article X, Section 6, that is, on the ground of
failure to pay union dues, special assessments, fines, and other mandatory
charges.38 On the other hand, grounds for disqualification from membership may be
found in Article IV, which states that-
Section 3. The following are not eligible neither [sic] for membership nor to election
or appointment to any position in the union:
a. Subversive or persons who profess subversive ideas.
b. Persons who have been convicted of crime involving moral
turpitude.
c. Persons who are not employees of the company. 39
These provisions do not apply in respondent's case. Although he was eventually
charged with estafa,40 a crime involving moral turpitude, 41 still, he has not been
convicted of the crime. For this reason, he may not be disqualified as union member.
Thus, for what he is charged with, respondent may not be penalized with expulsion
from the union, since this is not authorized and provided for under PORFA's
Constitution.
Contrary to petitioners' claim, Cariño v. National Labor Relations Commission is not
applicable here. In that case, the employee was terminated on the basis
of existing suspension and expulsion provisions contained in the CBA and rules on
discipline found in the union's Constitution. There are no such provisions in PORFA's
Constitution; neither has it been shown that there are similar stipulations in the
parties' CBA.
The matter of respondent's alleged failure to return petitioners' P300,000.00 which
was lent to PORFA is immaterial as well. It may not be used as a ground to terminate
respondent's employment; under the Labor Code, such a contribution by petitioners
to PORFA is illegal and constitutes unfair labor practice.
ART. 248. Unfair labor practices of employers. - It shall be unlawful for an
employer to commit any of the following unfair labor practice:
(d) To initiate, dominate, assist or otherwise interfere with the formation or
administration of any labor organization, including the giving of financial or
other support to it or its organizers or supporters; 42 (Emphasis supplied)
This could be an opportune time for the union to consider amending its Constitution
in order to provide for specific rules on the discipline of its members, not just its
officers. After all, it is given the right under the Labor Code, "to prescribe its own
rules with respect to the acquisition or retention of membership." 43But it may not
insist on expelling respondent from PORFA and assist in his dismissal from UPI
without just cause, since it is an unfair labor practice for a labor organization to
"cause or attempt to cause an employer to discriminate against an employee,
including discrimination against an employee with respect to whom membership in
such organization has been denied or to terminate an employee on any ground other
than the usual terms and conditions under which membership or continuation of
membership is made available to other members."44
On account of the foregoing disquisition, the other issues raised by the parties need
not be discussed.
WHEREFORE, for the foregoing reasons, the Petition is hereby DENIED. The
December 11, 2012 Decision and October 10, 2013 Resolution of the Court of
Appeals in CA-G.R. SP No. 115402 areAFFIRMED.
SO ORDERED.
28. UNSATISFACTORY PERFORMANCE
GR No. 199931, Sep 07, 2015 ]INC SHIPMANAGEMENT v. RANULFO
CAMPOREDONDO +
WHETHER xxx PETITIONERS' ADDUCED EVIDENCE WOULD NOT CONSTITUTE
AS SUBSTANTIAL EVIDENCE TO PROVE THE RESPONDENT'S
INCOMPETENCE AND POOR PERFORMANCE AND xxx JUSTIFIED HIS
DISMISSAL FROM EMPLOYMENT.
It is settled that the employer has the burden to prove that the dismissal of an
employee is based on a valid cause. To discharge this burden, the employer must
present substantial evidence - or such amount of relevant evidence that a reasonable
mind might accept as adequate to support a conclusion - that the cause of the
employee's dismissal was valid. [28] Specifically, the employer must comply with the
following requisites: (1) the dismissal must be for a just or authorized cause, and (2)
the employee to be dismissed must have been afforded due process of law. [29]
In this case, petitioners failed to discharge this burden.
Petitioners failed to prove just or authorized cause.
First off, we hold that the due execution of the Report of incompetent
action/insubordination/indiscipline was established considering that both parties
adduced it to support their respective positions. On one hand, petitioners relied on
this Report to prove that respondent was validly dismissed. On the other hand,
respondent admitted that he was furnished a copy of this Report but he declined to
receive it. Thus, as regards the existence of the subject Report, We find that the same
was duly proved here.
However, the contents of this Report were insufficient bases to dismiss respondent.
As stated therein, respondent was dismissed for the following reasons:
DISMISSAL (Brief Details):
HE HAS AN OBVIOUS HANDICAP WHICH IS A STIFF RIGHT ARM. THIS HANDICAP
ALLOWS HIM TO COOK, BUT [REGRETABLY] IT MAKES MR. CAMPOREDONO [sic]
UNABLE TO ALSO SERVE THE MEALS AND CLEAN THE KITCHEN, MESSROOMS,
STORES RESPECTABLE [sic]. WITH ASSISTENCE [sic] OF A MESSMAN HE CAN DO
HIS JOB RESPECTIVE [sic].[30]
As found by the CA, the Report provided no detailed explanation as regards
respondent's supposed incompetence and poor performance. The CA observed that
the Report "did not particularly describe such inability that would lead to the
conclusion that he was incompetent." [31] With this observation of the CA, we fully
agree.
As a general concept, poor performance is tantamount to inefficiency and
incompetence in the performance of official duties. An unsatisfactory rating can be a
just cause for dismissal only if it amounts to gross and habitual neglect of duties.
Poor or unsatisfactory performance of an employee does not necessarily mean that
he is guilty of gross and habitual neglect of duties. [32]
To ascribe gross neglect, there must be lack of or failure to exercise slight care or
diligence, or the total absence of care in the performance of duties. In other words,
there is gross neglect when the employee exhibits thoughtless disregard of
consequences without exerting effort to avoid them. [33] On the other hand, habitual
neglect involves repeated failure to perform duties for a certain period of time,
depending upon the circumstances, and not mere failure to perform duties in a
single or isolated instance.[34]
As above-discussed, the Report of incompetent action/insubordination/indiscipline
against respondent did not describe the specific acts that would establish his alleged
poor performance, or his want of even slight care in the performance of his official
tasks as chief cook for a certain period of time; hence, even assuming that
respondent's performance was unsatisfactory, petitioners failed to show that his
poor performance amounted to gross and habitual neglect of duties.
Moreover, as correctly pointed out by the CA, no credence can be given to the e-mails
presented by petitioners to support respondent's purported incompetence because
these e-mails were unauthenticated. In addition, they pertained to the previous
contract of respondent, which is unrelated to this present case.
Petitioners did not comply with the two-notice rule required in dismissing an
employee.
To amount to a valid dismissal, an erring seafarer must be handed a written notice of
the charge against him and must be given the opportunity to explain himself unless
of course there is a clear and existing danger against the safety of, the crew or the
vessel in which case notice may be dispensed with.[35] Needless to say, this is not the
situation here.
Section 17 of the Philippine Overseas Employment Administration-Standard Terms
and Conditions Governing the Employment of Filipino Seafarers On Board Ocean-
Going Vessels (Disciplinary Measures) specifically provides that before an erring
seafarer can be validly dismissed, he must be given by the master of the vessel a
written notice stating the charge or charges against him; and, the date, time and
place for a formal investigation of such charge. Thereafter, an investigation or
hearing, duly documented and entered in the ship's logbook, must be conducted to
give the seaman the opportunity to explain or defend himself. If found guilty, the
seaman shall be given a written notice of the penalty meted out against him. with
the specific reasons for the penalty so imposed. "Dismissal for just cause may be
affected by the Master without furnishing the seafarer with a notice of dismissal if
there is a clear and existing danger to the safety of the crew or the vessel." [36]
In this case, no hearing was conducted respecting respondent's alleged
incompetence and poor performance, and granting him opportunity to present
countervailing evidence to disprove the charge against him. There was also no
showing of imminent danger to the crew or the vessel, so that the required notice
may be dispensed with. True, as stated elsewhere, the above-mentioned Report
could somehow pass as a notice of respondent's dismissal. Nevertheless, as earlier
discussed, the allegations in this Report do not permit the conclusion that
respondent was guilty of poor performance and incompetence that would amount to
gross and habitual neglect of duties.
Lastly, the quitclaim that respondent executed did not bar him from filing a
complaint for illegal dismissal against petitioners. Said quitclaim was invalid
because it did not fully or completely give or grant respondent what was due him as
a matter of law and justice. It only covered respondent's accrued leave credits and
his 3-day travel pay. Such payment involved only a part or portion of the amount of
money actually and justly due him under the law; it was not a full and complete
satisfaction of what is due him under the law. [37]
In view thereof, we find that the CA did not err in setting aside the Decision of the
NLRC and in reinstating that of the LA, which found respondent to have been
illegally dismissed and entitled to his salaries for the unexpired portion of his
employment contract and to attorney's fees of 10% of the total award. [38]
WHEREFORE, the Petition is DENIED. Accordingly, the Decision dated July 29, 2011
and Resolution dated January 2, 2012 of the Court of Appeals in CA-G.R. SP No.
112079 are AFFIRMED
29. UNSUBSTANTIATED SUSPICION[ GR No. 214186, Aug
03, 2016 ]RODFHEL BACLAAN v. BEAUTY LANE PHILS. +
All told, the respondents failed to prove by substantial evidence that
petitioners were the authors of or at least participated in the alleged
pilferage of the "Brazilian Blowout" products. Unlike respondents' two (2)
former employees, namely, Romar Geroleo and Cipriano Layco, who were
caught red-handed in an entrapment operation, no direct evidence
showing petitioners' guilt was presented and respondents relied on
inconclusive circumstantial evidence in determining who the perpetrators
of the pilferage are. While proof beyond reasonable doubt is not required
in dismissing an employee, the employer must prove by substantial
evidence the facts and incidents upon which the accusations are made.
[86]
Unsubstantiated suspicions, accusations, and conclusions of the
employer, as in this case, are not enough to justify an employee's dismissal.
[87]
30. VALID TRANSFER
CHATEAU ROYALE SPORTS AND COUNTRY
CLUB, INC., v. RACHELLE G. BALBA and MARINEL N. CONSTANTE,
RespondentsG.R. No. 197492, January 18, 2017
FACTS: Petitioner Chateau Royale hired respondents as Account Executives.
They were then promoted to Account Managers after almost a year. As part of
their duties, respondents were instructed by the Director of Sales and Marketing
to forward all proposals, event orders and contracts for an orderly and
systematic bookings in the operation of the petitioner’ s business. However, they
failed to comply with the directive. Accordingly, a notice to explain was served on
them, to which they promptly responded.
After investigation, respondents were found to have committed acts of
insubordination, and that they were suspended for seven (7) days. However, said
suspension order was lifted before its implementation.
Respondents then filed a complaint for illegal suspension and non-payment
of allowances and commissions. Respondents amended their complaint to
include constructive dismissal based on their information from the Chief
Financial Officer of the petitioner on the latter’s plan to transfer them to the
Manila Office. The proposed transfer was prompted by the shortage of personnel
at the Manila Office as a result of the resignation of three account managers and
the director of sales and marketing. Despite attempts to convince them to accept
the transfer to Manila, they declined because their families were living in
Nasugbu, Batangas.
LA found that respondents had been constructively dismissed. NLRC
reversed the same and dismissed the complaint for lack of merit. CA granted the
petition for certiorari and set aside NLRC’s decision.
ISSUE:Whether or not the transfer of respondents constitutes constructive
dismissal.
HELD: NO.The Supreme Court held that the petitioner was able to discharge its
burden, and thus established that, contrary to the claim of the respondents that
they had been constructively dismissed, their transfer had been an exercise of the
petitioner’s legitimate management prerogative.
First, the resignations of the account managers and the director of sales and
marketing in the Manila office brought about the immediate need for their
replacements with personnel having commensurate experiences and skills. With
the positions held by the resigned sales personnel being undoubtedly crucial to
the operations and business of the petitioner, the resignations gave rise to
an urgent and genuine business necessity that fully warranted the
transfer from the Nasugbu, Batangasoffice to the main office in
Manila of the respondents, undoubtedly the best suited to perform the tasks
assigned to the resigned employees because of their being themselves account
managers who had recently attended seminars and trainings as such.
Secondly, although the respondents’ transfer to Manila might be potentially
inconvenient for them because it would entail additional expenses on their part
aside from their being forced to be away from their families, it was neither
unreasonable nor oppressive. The petitioner rightly points out that
the transfer would be without demotion in rank, or without
diminution of benefits and salaries.Instead, the transfer would open
the way for their eventual career growth, with the corresponding
increases in pay.
Thirdly, the respondents did not show by substantial evidence
that the petitioner was acting in bad faith or had ill-motive in
ordering their transfer. In contrast, the urgency and genuine business
necessity justifying the transfer negated bad faith on the part of the petitioner.
Lastly, the respondents, by having voluntarily affixed their
signatures on their respective letters of appointment, acceded to the
terms and conditions of employment incorporated therein. One of the
terms and conditions thus incorporated was the prerogative of management to
transfer and re-assign its employees from one job to another “as it may deem
necessary or advisable.”
31. VISITORIAL POWER G.R. No. 178909 :
October 10, 2012SUPERIOR PACKAGING
CORPORATION VS ARNEL BALAGSAY
At any rate, such argument lacks merit. The DOLE clearly acted within its
authority when it determined the existence of an employer-employee
relationship between the petitioner and respondents as it falls within the
purview of its visitorial and enforcement power under Article 128(b) of the
Labor Code, which provides:
Notwithstanding the provisions of Articles 129 and 217 of this Code to the
contrary, and in cases where the relationship of employer-employee still exists,
the Secretary of Labor and Employment or his duly authorized representatives
shall have the power to issue compliance orders to give effect to the labor
standards provisions of this Code and other labor legislation based on the
findings of labor employment and enforcement officers or industrial safety
engineers made in the course of inspection. The Secretary or his duly
authorized representative shall issue writs of execution to the appropriate
authority for the enforcement of their orders, except in cases where the
employer contests the findings of the labor employment and enforcement
officer and raises issues supported by documentary proofs which were not
considered in the course of inspection.
In Peoples Broadcasting (Bombo Radyo Phils., Inc.) v. Secretary of the
Department of Labor and Employment, 20IÏ ‚rIνll the Court stated that it can be
assumed that the DOLE in the exercise of its visitorial and enforcement power
somehow has to make a determination of the existence of an employer-
employee relationship. Such determination, however, is merely preliminary,
incidental and collateral to the DOLEs primary function of enforcing labor
standards provisions. Such power was further explained recently by the Court
in its Resolution21IÏ ‚rIνll dated March 6, 2012 issued in Peoples Broadcasting,
viz:
The determination of the existence of an employer-employee relationship by
the DOLE must be respected. The expanded visitorial and enforcement power
of the DOLE granted by RA 7730 would be rendered nugatory if the alleged
employer could, by the simple expedient of disputing the employer-employee
relationship, force the referral of the matter to the NLRC. The Court issued the
declaration that at least a prima facie showing of the absence of an employer-
employee relationship be made to oust the DOLE of jurisdiction. But it is
precisely the DOLE that will be faced with that evidence, and it is the DOLE that
will weigh it, to see if the same does successfully refute the existence of an
employer-employee relationship.
x x x The power of the DOLE to determine the existence of an employer-
employee relationship need not necessarily result in an affirmative finding. The
DOLE may well make the determination that no employer-employee
relationship exists, thus divesting itself of jurisdiction over the case. It must not
be precluded from being able to reach its own conclusions, not by the parties,
and certainly not by this Court.
Under Art. 128(b) of the Labor Code, as amended by RA 7730, the DOLE is fully
empowered to make a determination as to the existence of an employer-
employee relationship in the exercise of its visitorial and enforcement power,
subject to judicial review, not review by the NLRC. 22IÏ ‚rIÎ ½ll
Also, the existence of an employer-employee relationship is ultimately a
question of fact.23IÏ ‚rIνll The determination made in this case by the DOLE,
albeit provisional, and as affirmed by the Secretary of DOLE and the CA is
beyond the ambit of a petition for review on certiorari. 24IÏ ‚r
WHEREFORE, the petition for review is DENIED.