A.M. Oreta vs. NLRC G.R. No.

74004 August 10, 1989 FACTS: Private respondent Grulla was engaged by Engineering Construction and Industrial Development Company (ENDECO) through A.M. Oreta and Co., Inc., as a carpenter in its projects in Jeddah, Saudi Arabia. The contract of employment, which was entered into June 11, 1980 was for a period of twelve (12) months. On October 9, 1980, he received a notice of termination of his employment. He filed a complaint for illegal dismissal. Petitioner contends that the respondent Grulla was validly dismissed because the latter was still a probationary employee; and that his dismissal was justified on the basis of his unsatisfactory performance of his job during the probationary period. ISSUES: Whether respondent Grulla was illegaly terminated by the petitioner? HELD: Yes. A perusal of the employment contract reveals that although the period of employment of respondent Grulla is twelve (12) months, the contract is renewable subject to future agreements of the parties. It is clear from the employment contract that the respondent Grulla was hired by the company as a regular employee and not just mere probationary employee. Also, nowhere in the employment contract executed between petitioner company and respondent Grulla is there a stipulation that the latter shall undergo a probationary period for three months before he can qualify as a regular employee. Respondent Grulla was not, in any manner, notified of the charges against him before he was outrightly dismissed. Neither was any hearing or investigation conducted by the company to give the respondent a chance to be heard concerning the alleged unsatisfactory performance of his work.

CHUA V CA 440 SCRA 121 October 6, 2004 FACTS - On 20 August 1985, private respondents Andres Paguio, Pablo Canale, Ruel Pangan, Aurelio Paguio, Rolando Trinidad, Romeo Tapang and Carlos Maliwat (hereinafter referred to as respondents) filed a Petition with the SSC for SSS coverage and contributions against petitioner Reynaldo Chua, owner of Prime Mover Construction Development, claiming that they were all regular employees of the petitioner in his construction business. Private respondents alleged that petitioner dismissed all of them without justifiable grounds and without notice to them and to the then Ministry of Labor and Employment. They further alleged that petitioner did not report them to the SSS for compulsory coverage in flagrant violation of the Social Security Act. - On the other hand, the petitioner claimed that private respondents were project employees, whose periods of employment were terminated upon completion of the project. Thus, he claimed, no employer-employee relation existed between the parties. There being no employer-employee relationship, private respondents are not entitled to coverage under the Social Security Act. Moreover, petitioner invokes the defense of good faith, or his honest belief that project employees are not regular employees under Article 280 of the Labor Code. The SSC and CA ruled in favor of the respondents. ISSUE WON private respondents were regular employees of the petitioner HELD YES. Elements of the control test: (a) selection and engagement of the employee; (b) payment of wages; (c) the power of dismissal; and (d) the power of control with regard to the means and methods by which the work is to be accomplished, with the power of control being the most determinative factor. Even though the employer does not admit, the existence of an employer-employee relationship between the parties can easily be determined by the application of the "control test, the elements of which are: (a) selection and engagement of the employee; (b) payment of wages; (c) the power of dismissal; and (d) the power of control with regard to the means and methods by which the work is to be accomplished, with the power of control being the most determinative factor. - There is no dispute that private respondents were employees of petitioner. Petitioner himself admitted that they worked in his construction projects, although the period of their employment was allegedly co-terminus with their phase of work. It is clear that private respondents are employees of petitioner, the latter having

control over the results of the work done, as well as the means and methods by which the same were accomplished. Suffice it to say that regardless of the nature of their employment, whether it is regular or project, private respondents are subject of the compulsory coverage under the SSS Law, their employment not falling under the exceptions provided by the law. This rule is in accord with the Court s ruling in Luzon Stevedoring Corp. v. SSS to the effect that all employees, regardless of tenure, would qualify for compulsory membership in the SSS, except those classes of employees contemplated in Section 8(j) of the Social Security Act. - In Violeta v. NLRC, this Court ruled that to be exempted from the presumption of regularity of employment, the agreement between a project employee and his employer must strictly conform to the requirements and conditions under Article 280 of the Labor Code. It is not enough that an employee is hired for a specific project or phase of work. There must also be a determination of, or a clear agreement on, the completion or termination of the project at the time the employee was engaged if the objectives of Article 280 are to be achieved. This second requirement was not met in this case. - This Court has held that an employment ceases to be co-terminus with specific projects when the employee is continuously rehired due to the demands of the employer s business and re-engaged for many more projects without interruption. The Court likewise takes note of the fact that, as cited by the SSC, even the National Labor Relations Commission in a labor case involving the same parties, found that private respondents were regular employees of the petitioner. - Another cogent factor militates against the allegations of the petitioner. In the proceedings before the SSC and the Court of Appeals, petitioner was unable to show that private respondents were appraised of the project nature of their employment, the specific projects themselves or any phase thereof undertaken by petitioner and for which private respondents were hired. He failed to show any document such as private respondents employment contracts and employment records that would indicate the dates of hiring and termination in relation to the particular construction project or phases in which they were employed. Moreover, it is peculiar that petitioner did not show proof that he submitted reports of termination after the completion of his construction projects, considering that he alleges that private respondents were hired and rehired for various projects or phases of work therein. - To be exempted from the presumption of regularity of employment, the agreement between a project employee and his employer must strictly conform to the requirements and conditions under Article 280 of the Labor Code. It is not enough that an employee is hired for a specific project or phase of work. There must also be a determination of, or a clear agreement on, the completion or termination of the project at the time the employee was engaged if the objectives of Article 280 are to be achieved.

A Prime Security Services Inc. v. NLRC, 322 SCRA 283 (2000) FACTS: Private respondent Othello Moreno worked as a security guard for a year with Sugarland Security Services Inc, a sister company of petitioner. He was rehired as a security guard on January 30, 1988 by the petitioner and assigned to the same post at the U.S. Embassy Building; that he was among those absorbed by the petitioner when it took over the security contracts of its sister company with the U.S. Embassy 1. Private respondent Othello Moreno filed a complaint a g a i n s t p e t i t i o n e r A P r i m e Security for illegal dismissal, illegal deduction and underpayment of wages. Mo r e n o alleged that he was forced by p e t i t i o n e r t o s i g n n e w p r o b a t i o n a r y contracts of employment for 6 months and further alleged that on August 1, 1988, his employment was terminated. Moreno also claimed that during his employment, t h e a m o u n t o f P 2 0 . 0 0 p e r month was deducted from his salary allegedly for withholding tax, and the salary h e w a s r e c e i v i n g w a s only P2,187.00 a month, which was way below t h e P2,410.17 stipulated in the PADPAO memorandum of agreement. On the other hand, petitioner, A Prime S e c u r i t y , a l l e g e d t h a t t h e p r i v a t e respondent was hired on January 30, 1988, on a probationary basis, and h e signed an authority to deduct from his salary any reimbursement for any loss or damage caused to properties of the client; a ) t h a t h e w a s g i v e n a c o p y o f p e t i t i o n e r s r u l e s a n d r e g u l a t i o n s w h i c h p r o v i d e that sleeping on post is punishable by warning, suspension and dismissal and he was caught sleeping on post on March 17, 1988, for which he was sent a memorandum giving him a last warning; b ) t h a t o n M a r c h 2 5 , 1 9 8 8 , h e f i g u r e d i n a q u a r r e l w i t h a n o t h e r s e c u r i t y g u a r d , which resulted in a near shootout; c) that at the end of his probationary employment, he was given a psychological test and on the basis of the foregoing, petitioner told him that his probationary employment had come to an end as he did not pass the company standard and therefore, he could not be hired as a regular employee. LA handed down a decision in favor of complainant. The respondent was ordered to reinstate the complainant to his former position and accord to him the status of a regular employee, and to refund to the complainant the deduction it had made from his salary in the amount of P20.00 per month.

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3.

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5.

6.

NLRC affirmed the decision with a slight m o d i f i c a t i o n : t h e r e f u n d o f t h e deductions made by respondent from complainant s salaries in the amount of P20.00 per month was vacated and set aside.

started working on January 30, 1988 and completed the said period of probation on July 27, 1988. Thus, at t h e t i m e p r i v a t e respondent was dismissed on August 1, 1988, he was already a regular employee with a security of tenure. He could only be dismissed for a just and authorized cause. Tabas vs. California Manufacturing Co., Inc.

ISSUES: 1. WON private respondent s employment with A Prime Security Services, I n c . w a s j u s t a c o n t i n u a t i o n o f h i s e m p l o y m e n t w i t h S u g a r l a n d S e c u r i t y Services, Inc WON private respondent is a regular employee of petitioner 169 SCRA 497

2. HELD: 1.

YES. On the issue as to whether the private respondent is a probationary or regular employee, the Court holds that the latter became a regular employee upon completion of his sixmonth period of probation. Private respondent started working on January 30, 1988 and completed the said period of probation on July 27, 1988. Thus, at the time p r i v a t e r e s p o n d e n t w a s dismissed on August 1, 1988, he was already a r e g u l a r employee with a security of tenure. He could only be dismissed for a just and authorized cause. There is no basis for subjecting private respondent to a new probationary or temporary employment on January 30, 1988, considering that he was already a regular employee when he was absorbed by A' Prime from Sugarland, its sister company. The Court cannot sanction the practice of some companies which, shortly after a worker has become a regular employee, effects the transfer of the same employee to another entity whose owners are the same, or identical, in order to deprive subject employee of the benefits and protection he is entitled to under the law. The allegations of the private respondent that Sugarland is a sister company of A Primeand that the latter absorbed the security contracts and security guards of Sugarland with t h e U . S . E m b a s s y w e r e n e i t h e r d e n i e d n o r c o n t r o v e r t e d b y t h e p e t i t i o n e r b e f o r e t h e Labor Arbiter. Petitioner s failure to deny that Sugarland is its si ster company and that petitioner absorbed Sugarland s security contract and security personnel assumes o v e r r i d i n g significance over the resignation theorized upon, evincing petitioner s design to ignore or violate labor laws through the use of the veil of corporate personality.

Facts: Petitioners filed a petition in the NLRC for reinstatement and payment of various benefits against California Manufacturing Company. The respondent company then denied the existence of an employer-employee relationship between the company and the petitioners. Pursuant to a manpower supply agreement, it appears that the petitioners prior their involvement with California Manufacturing Company were employees of Livi Manpower service, an independent contractor, which assigned them to work as promotional merchandisers. The agreement provides that: California has no control or supervisions whatsoever over Livi's workers with respect to how they accomplish their work or perform California s obligation It was further expressly stipulated that the assignment of workers to California shall be on a seasonal and contractual basis ; that cost of living allowance and the 10 legal holidays will be charged directly to [California] at cost ; and that payroll for the preceding week shall be delivered by Livi at California's premises. Issue: Whether principal employer is liable. Held: Yes. The existence of an employer-employee relation cannot be made the subject of an agreement. Based on Article 106, labor-only contractor is considered merely as an agent of the employer, and the liability must be shouldered by either one or shared by both. There is no doubt that in the case at bar, Livi performs manpower services , meaning to say, it contracts out labor in favor of clients. We hold that it is one notwithstanding its vehement claims to the contrary, and notwithstanding the provision of the contract that it is an independent contractor. The nature of one s business is not determined by self-serving appellations one attaches thereto but by the tests provided by statute and prevailing case law. The bare fact that Livi maintains a separate line of business does not extinguish the equal fact that it has provided California with workers to pursue the latter s own business. In this connection, we do not agree that the petitioners had been made to perform activities which are not directly related to the general business of manufacturing, California s purported principal operation activity. Livi, as a placement agency, had simply supplied California with the manpower necessary to

2.

YES. The complainant became a regular employee upon completion of his six-month p e r i o d o f p r o b a t i o n . P r i v a t e r e s p o n d e n t

carry out its (California s) merchandising activities, using its (California s) premises and equipment. BRENT SCHOOL vs. ZAMORA 181 SCRA 702 Facts: Private respondent Doroteo R. Alegre was engaged as athletic director by petitioner Brent School, Inc. at a yearly compensation of P20,000.00. The contract fixed a specific term for its existence, five (5) years, i.e., from July 18, 1971, the date of execution of the agreement, to July 17, 1976. Subsequent subsidiary agreements dated March 15, 1973, August 28, 1973, and September 14, 1974 reiterated the same terms and conditions, including the expiry date, as those contained in the original contract of July 18, 1971. On April 20,1976, Alegre was given a copy of the report filed by Brent School with the Department of Labor advising of the termination of his services effective on July 16, 1976. The stated ground for the termination was "completion of contract, expiration of the definite period of employment." Although protesting the announced termination stating that his services were necessary and desirable in the usual business of his employer, and his employment lasted for 5 years - therefore he had acquired the status of regular employee - Alegre accepted the amount of P3,177.71, and signed a receipt therefor containing the phrase, "in full payment of services for the period May 16, to July 17, 1976 as full payment of contract." The Regional Director considered Brent School's report as an application for clearance to terminate employment (not a report of termination), and accepting the recommendation of the Labor Conciliator, refused to give such clearance and instead required the reinstatement of Alegre, as a "permanent employee," to his former position without loss of seniority rights and with full back wages. Issue: Whether or not the provisions of the Labor Code, as amended, have anathematized "fixed period employment" or employment for a term.

thereto, it was the Code of Commerce (Article 302) which governed employment without a fixed period, and also implicitly acknowledged the propriety of employment with a fixed period. The Civil Code of the Philippines, which was approved on June 18, 1949 and became effective on August 30,1950, itself deals with obligations with a period. No prohibition against term-or fixed-period employment is contained in any of its articles or is otherwise deducible therefrom.

It is plain then that when the employment contract was signed between Brent School and Alegre, it was perfectly legitimate for them to include in it a stipulation fixing the duration thereof Stipulations for a term were explicitly recognized as valid by this Court. The status of legitimacy continued to be enjoyed by fixed-period employment contracts under the Labor Code (PD 442), which went into effect on November 1, 1974. The Code contained explicit references to fixed period employment, or employment with a fixed or definite period. Nevertheless, obscuration of the principle of licitness of term employment began to take place at about this time.

Article 320 originally stated that the "termination of employment of probationary employees and those employed WITH A FIXED PERIOD shall be subject to such regulations as the Secretary of Labor may prescribe." Article 321 prescribed the just causes for which an employer could terminate "an employment without a definite period." And Article 319 undertook to define "employment without a fixed period" in the following manner: where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. Subsequently, the foregoing articles regarding employment with "a definite period" and "regular" employment were amended by Presidential Decree No. 850, effective December 16, 1975.

Held:Respondent Alegre's contract of employment with Brent School having lawfully terminated with and by reason of the expiration of the agreed term of period thereof, he is declared not entitled to reinstatement. The employment contract between Brent School and Alegre was executed on July 18, 1971, at a time when the Labor Code of the Philippines (P.D. 442) had not yet been promulgated. At that time, the validity of term employment was impliedly recognized by the Termination Pay Law, R.A. 1052, as amended by R.A. 1787. Prior,

PEOPLE V SAGAYAGA 423 SCRA 468 Facts: The appellant was charged with large scale illegal recruitment. Sometime in October 1997, Elmer Janer went to the office of Alvis Placement Service Corporation to apply for overseas employment as factory worker in Taiwan. Appellant Leticia Sagayaga, after personally receiving Elmer s application, required him to submit the necessary documents. Appellant further asked Elmer to pay seventy-five thousand pesos (P75,000.00) as placement fee. Elmer paid the said fee to appellant in three (3) installments. All the payments were made inside Alvis Placement Agency.Elmer also had his medical examination at the Angeles Medical Clinic, the result of which confirmed that he was fit to work. Thereafter, he was told to wait for the arrival of the employer. After seven (7) months, no employer arrived. Tired of waiting, Elmer demanded that he be refunded of his money (Id.). Despite appellant s promises to pay, Elmer was not refunded of his money. Elmer asked appellant for a promissory note, which appellant executed, promising to pay Elmer seventy-five thousand (P75,000.00) on May 6, 1998 (pp. 10 and 11, TSN, September 7, 1999). In said promissory note, appellant designated herself as the assistant general manager of the placement agency. When appellant failed to refund the amount to Elmer on the date stated in the promissory note, the latter went to the Philippine Overseas Employment Administration (POEA) and filed a sworn complaint against appellant. Elmer Ramos and Eric Farol filed their complaint based on basically similar facts. The appellant avers that she is not criminally liable for the crime charged because the prosecution failed to prove that she had a direct or actual control, management or direction of the business and recruitment activities of the Alvis Placement Services Corporation (APSC). She asserts that she had no knowledge of the recruitment activities of APSC and had no participation whatsoever in its operation. In dealing with the private complainants, she was merely performing routinary office work as a mere employee. Her participation as an employee of APSC with respect to the employment application of Elmer Ramos for Taiwan was to receive his placement fee of P20,000.00. ISSUE: Whether the accused-appellant was a top ranking officer of said corporation, with authority to participate directly in the control, management or direction of its business affairs. HELD: YES.Appellant, as shown by the records of the POEA, was both the APSC VicePresident-Treasurer and the Assistant General Manager. She was a high corporate officer who had direct participation in the management, administration, direction and control of the business of the corporation.

Under Section 6 (m) of Rep. Act No. 8042, illegal recruitment may be committed by any person, whether a non-licensee, non-holder of authority, licensee or holder of authority, thus: (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker s fault. Under the last paragraph of the said section, those criminally liable are the principals, accomplices and accessories. In case of a juridical person, the officers having control, management or direction of the business shall be criminally liable. Accused has expressly admitted in the course of her testimony that she was at the time the Treasurer of their recruitment agency. As such she was in charge of the management and control of the financial affairs and resources of the corporation. She was in charge of collecting all its receivables, safely keeping them, and disbursing them. The appellant is guilty of illegal recruitment as a principal by direct participation, having dealt directly with the private complainants. The appellant s bare denial of her involvement in the management, administration, control and operation of APSC cannot prevail over her judicial admissions, the positive testimonies of the private complainants and the documentary evidence adduced by the prosecution. Section 6 of Rep. Act No. 8042 provides that illegal recruitment shall be considered an offense involving economic sabotage if committed in large scale, viz, committed against three (3) or more persons individually or as a group, the imposable penalty for which is life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00. In this case, there are three private complainants, namely, Elmer Janer, Eric Farol and Elmer Ramos. The trial court, thus, correctly convicted the appellant of large scale illegal recruitment and sentenced her to suffer life imprisonment.

Integrated Contractor v. NLRC 464 SCRA 265 FACTS This case is an appeal from a decision of the CA affirming the NLRC s findings which declared respondent Solon a regular employee of the petitioner and th awarded him with 13 month pay, service incentive leave pay, and reinstatement to his former position with full back wages from the time his salary was withheld until his reinstatement. Petitioner is a plumbing contractor. Its business depends on the number and frequency of the projects it is able to contract with its clients. Respondent Solon worked for petitioner several months at a time from 1994 to 1998.

On Feb. 1998, while Solon was about to log out from work, he was informed that it was his last day of work as he had been terminated. He went back to petitioner s office to sign a clearance so he could claim his 13th month pay and tax refunds. However, he refused to sign when he read the clearance indicating that he had resigned. He then filed a complaint for illegal dismissal without due cause and due process. The Labor Arbiter ruled that Solon was a regular employee and could only be removed for cause. NLRC affirmed with only a modification as to the computation of 13th month pay. CA also affirmed. ISSUE Whether the respondent is a regular employee or not. HELD YES. The test to determine whether employment is regular or not is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not indispensability of that activity to the business. (De Leon v NLRC) While length of time may not be the controlling test for project employment, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, private respondent had been a project employee several times over. His employment ceased to be coterminous with specific projects when he was repeatedly re-hired due to the demands of petitioner s business. Disposition assailed Decision dated October 30, 2001 and the Resolution dated February 28, 2002 of CA are AFFIRMED with MODIFICATION. The petitioner id hereby ORDERED to (1)reinstate the respondent with no loss of seniority rights and other privileges; and (2) pay respondent his back wages, 13th month pay for the year 1998 and Service Incentive Leave Pay computed from the date of his illegal dismissal up to the date of his actual reinstatement.

Hacienda Fatima v. National Federation of Sugarcane Workers-Food and General Trade 396 SCRA 518 CALLEJO, SR., J.:

Facts: Hacienda Bino is a 236-hectare sugar plantation located at Barangay Orong, Kabankalan City, Negros Occidental, and represented in this case by Hortencia L. Starke, owner and operator of the said hacienda. The 76 individual respondents were part of the workforce of Hacienda Bino consisting of 220 workers, performing various works, such as cultivation, planting of cane points, fertilization, watering, weeding, harvesting, and loading of harvested sugarcanes to cargo trucks. During the off-milling season, petitioner Starke issued an Order or Notice which stated, that all those who signed in favor of CARP are expressing their desire to get out of employment on their own volition. And only those who did not sign for CARP will be given employment by the hacienda. The respondents regarded such notice as a termination of their employment. As a consequence, they filed a complaint for illegal dismissal, wage differentials, 13th month pay, holiday pay and premium pay for holiday, service incentive leave pay, and moral and exemplary damages with the NLRC. The respondents as complainants alleged inter alia that they are regular and permanent workers of thehacienda and that they were dismissed without just and lawful cause. Petitioner Starke alleged that she issued the order giving preference to those who supported the re-classification. She asserts that the respondents, who are also sugar workers, are seasonal employees; hence, their employment can be terminated at the end of the season and such termination cannot be considered an illegal dismissal. Petitioner Starke maintains that the determination of whether the workers are regular or seasonal employees is not dependent on the number of hectares operated upon by them, or the number of workers, or the capitalization involved, but rather, in the nature of the work. She asserts that the respondents also made their services available to the neighboring haciendas.

Issue:

Whether the hacienda workers are regular or seasonal workers worthy of the benefits granted by law to regular employees?

Philippine Tobacco v. NLRC, 300 SCRA 37 G.R. No. 118475. DE LEON, JR., J.:

Facts: Ruling: The petition is denied. The hacienda workers are regular employees regardless of the off-milling period. The Mercado doctrine does not apply in this case. Contrary to the Mercado case that provides that farm workers in haciendas are work in a definite period of time therefore the relationship with the owner is terminated, the herein case presents a different factual condition as the enormity of the size of the sugar hacienda of petitioner, with an area of two hundred thirtysix (236) hectares, simply do not allow for private respondents to render work only for a definite period. The petitioners did not present any evidence that the respondents were required to perform certain phases of agricultural work for a definite period of time. Although the petitioners assert that the respondents made their services available to the neighboring haciendas, the records do not, however, support such assertion. The primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. There is no doubt that the respondents were performing work necessary and desirable in the usual trade or business of an employer. Hence, they can properly be classified as regular employees. Private respondent La Union Tobacco Redrying Corporation (LUTORCO), which is owned by private respondent See Lin Chan, is engaged in the business of buying, selling, redrying and processing of tobacco leaves and its by-products. Tobacco season starts sometime in October of every year. Farmers germinate their seeds in plots until they are ready for replanting in November. The harvest season starts in mid-February. Then, the farmers sell the harvested tobacco leaves to redrying plants or do the redrying themselves. The redrying plant of LUTORCO receives tobacco for redrying at the end of February and starts redrying in March until August or September. Petitioners have been under the employ of LUTORCO for several years until their employment with LUTORCO was abruptly interrupted sometime in March 1993 when Compania General de Tabaccos de Filipinas (also known as TABACALERA) took over LUTORCO s tobacco operations. New signboards were posted indicating a change of ownership and petitioners were then asked by LUTORCO to file their respective applications for employment with TABACALERA. Petitioners were caught unaware of the sudden change of ownership and its effect on the status of their employment, though it was alleged that TABACALERA would assume and respect the seniority rights of the petitioners. Because of this, the disgruntled employees instituted before the NLRC Regional Arbitration a complaint for separation pay against private respondent LUTORCO on the ground that there was a termination of their employment due to the closure of LUTORCO as a result of the sale and turnover to TABACALERA. Other equally affected employees filed two additional complaints, also for separation pay, which were consolidated with the first complaint. Private respondent corporation raised as its defense that it is exempt from paying separation pay and denied that it terminated the services of the petitioners; and that it stopped its operations due to the absence of capital and operating funds caused by losses incurred from 1990 to 1992 and absence of operating funds for 1993, coupled with adverse financial conditions and downfall of prices The labor arbiter dismissed the complaint for lack of merit. In upholding private respondent LUTORCO s position, the Labor Arbiter declared that the petitioners are not entitled to the benefits under Article 283 of the Labor Code since LUTORCO

ceased to operate due to serious business losses and, furthermore, TABACALERA, the new employer of the petitioner has assumed the seniority rights of the petitioners and other employment liabilities of the LUTORCO. Petitioners appealed then the decision. Respondents alleged that LUTORCO never ceased to operate but continues to operate even after TABACALERA took over the operations of its redrying plaint in Aringay, La Union. Petitioners were not terminated from employment but petitioners instead refused to work with TABACALERA, despite the notice to petitioners to return to work in view of LUTORCO s need for workers at its Agoo plant which had approximately 300,000 kilos of Virginia tobacco for processing and redrying. Furthermore, petitioners are not entitled to separation pay because petitioners are seasonal workers.

People v. Baytic 398 SCRA 18 BELLOSILLO, J.:

Facts: On 24 September 1998 Kennedy Hapones accompanied by accused Alex Baytic went to the house of his aunt Ofelia in Quezon City. There they found Ofelia et al. together with Millie Passi, Yolanda Barrios and Elvira Nacario. Accused Alex Baytic told the girls that he was looking for workers willing to work in Italy as utility personnel. He explained that interested applicants should give him money for processing of their medical certificate, certificate of employment and other travel documents. Since the offer appeared to be a good opportunity to work abroad, Ofelia Bongbonga on the same day gave the accused P3,500.00, followed by Millie Passi with P4,000.00 the next day, and Nolie Bongbonga with P4,000.00 on 5 October as their placement fees. All these transactions were evidenced by receipts issued by accused Alex Baytic. According to private complainant, accused Baytic promised her and her two (2) coapplicants an interview by his cousin, a doctor from Italy, on 7 October 1998 at the Corinthian Gardens. However, on the appointed date of their interview, the accused failed to appear. Ofelia, Millie and Nolie frantically searched for him but he was nowhere to be found. Ofelia further testified that sometime in January 1999 they heard over the radio that accused Baytic was arrested in Pasig City for illegal recruitment activities. Upon inquiry from the radio station, she learned that the accused was already detained at the Pasig Provincial Jail, so she followed him there. Accused Alex Baytic, testifying in his defense, not only denied the accusations against him but also insisted that it was actually Kennedy Hapones, a new acquaintance, who was the illegal recruiter. He recounted that sometime in November 1999, he went to the house of Hapones who was trying to recruit him for deployment abroad. According to the accused, Hapones told him to prepare P250,000.00 although the former eventually accepted an initial advance payment of P4,500.00. He again met Hapones the following month when the latter told him and a group of other applicants, including Ofelia Bongbonga, that their requirements were ready. That was the last time he saw Hapones who, he later learned, had already left for abroad. He was suspected of being in cahoots with Hapones because whenever the latter and the applicants talked, Hapones would always point at him, although he never had the opportunity to know what Hapones had actually said to them. The trial court opined that all the essential requisites of the crime of illegal recruitment in large scale as defined in Art. 13, par. (b), of the Labor Code2 were

Issue: Whether the workers are seasonal workers not entitled to the prayed benefits?

Ruling: They are considered as regular workers. While it may appear that the work of petitioners is seasonal, inasmuch as petitioners have served the company for many years, some for over 20 years, performing services necessary and indispensable to LUTORCO s business, serve as badges of regular employment. Moreover, the fact that petitioners do not work continuously for one whole year but only for the duration of the tobacco season does not detract from considering them in regular employment since in a litany of cases, the Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but are merely considered on leave until re-employed. Private respondent s reliance on the case of Mercardo v. NLRC is misplaced considering that since in said case of Mercado, although the respondent company therein consistently availed of the services of the petitioners therein from year to year, it was clear that petitioners therein were not in respondent company s regular employ. Petitioners therein performed different phases of agricultural work in a given year. However, during that period, they were free to contract their services to work for other farm owners, as in fact they did. Thus, the Court ruled in that case that their employment would naturally end upon the completion of each project or phase of farm work for which they have been contracted.

present. Accused-appellant now prays that the Court to take a second hard look at his conviction in view of the alleged failure of the prosecution to prove his guilt beyond reasonable doubt. He takes exception to the finding of the trial court that all the elements of the crime of illegal recruitment in large scale are present. Respondent argues that the first element, i.e., the accused engages in the recruitment and placement of workers, defined under Art. 13, or in any prohibited activities under Art. 34, of the Labor Code, is not present because he did not solicit any money from the complainants nor did he promise them employment in Italy. The truth of the matter, according to him, is that he himself was victimized by Kennedy Hapones, the real illegal recruiter. He explained that when Hapones could not be contacted, the complainants vented their anger towards him, being Hapones constant companion. Issue: Whether the elements of illegal recruitment were absent since the accused did not solicit money from the complainants nor did he promise them employment in Italy? Ruling: No, all the elements of illegal recruitment were present. Illegal recruitment is committed when two (2) elements concur. First, the offender has no valid license or authority required by law to enable one to engage lawfully in recruitment and placement of workers. Second, he or she undertakes either any activity within the meaning of "recruitment and placement" defined under Art. 13, par. (b), or any prohibited practices enumerated under Art. 34 of the Labor Code. In case of illegal recruitment in large scale, a third element is added: that the accused commits the acts against three or more persons, individually or as a group. The first element is present. POEA representative Flordeliza Cabusao presented in evidence a certification from one Hermogenes Mateo, Director III, Licensing Branch, showing that accused-appellant was neither licensed nor authorized to recruit workers for overseas employment.5 The second element is likewise present. Accused-appellant is deemed engaged in recruitment and placement under Art. 13, par. (b), of the Labor Code when he made representations to each of the complainants that he could send them to Italy for employment as utility personnel. His promises and misrepresentations gave the complainants the distinct impression that he had the authority to engage in recruitment, thus enabling him to collect from them various amounts for recruitment and placement fees without license or authority to do so.

DELA CRUZ V NLRC 418 SCRA 226 CORONA; December 11, 2003
NATURE Petition for review on certiorari FACTS - On May 27, 1996, petitioner Florencio de la Cruz, Jr. was hired by private respondent Shemberg Marketing Corporation as senior sales manager, a newly created position in line with the companys objective of product positioning in the consumer market. However, on Sept. 14, 1996, petitioner was informed that his services were terminated. His request for a meeting with Shembergs VP and to be furnished a 30-day written notice was denied by management. Hence, petitioner filed a complaint for illegal dismissal., non-payment of salary, backwages, 13th month pay and damages. - Private respondent answered that petitioners dismissal was premised, among others, on his unauthorized reimbursement of the plane tickets of his wife and child, resulting to loss of trust and confidence of the company. - Labor arbiter ruled that petitioner was illegally dismissed and granted his claim for separation pay, backwages and unpaid wages. Upon appeal, NLRC modified the decision, deleting the award for separation pay and backwages. Hence, this petition. ISSUE WON petitioner was legally dismissed, as he was a probationary employee HELD YES - Petitioner was hired by Shemberg on May 27, 1996 and was terminated on Sept. 14, 1996. A281 LC provides: Probationary employment shall not exceed six (6) months from the date the employee started working , unless it is covered in apprenticeship[ agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards, made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. - The evidence on record clearly shows that petitioner was well informed of the standards to be met before he could qualify as a regular employee. Attached to his appointment papers was a job description of sales manager. - A probationary employee is one who, for a given period of time, is under observation or evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee while the latter seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative rights of both the employer and the employee in dealing with each other during this period. - There is no dispute that petitioner, as a probationary employee enjoyed only a temporary employment status. This meant that he was terminable anytime, permanent employment not having been attained in the mean time. The employer could well decide he no longer needed the probationary employees service or hi performance fell short of expectation. As long as the termination was made before the expiration of the 6-month probationary period, the employer was well within his rights to sever the employer-employee relationship. A contrary interpretation would defect the clear meaning of the term probationary. In this case, Shemberg had good reason to terminate petitioners employment. Petitioner was holding a managerial position in which he was tasked to perform key functions in accordance with an exacting work ethic. His position required the full trust and confidence of his employer. While petitioner could exercise some discretion, this obviously did not cover acts for his own personal benefit. He committed a transgression which betrayed the trust and confidence of his employer reimbursing his familys personal travel expenses out of company funds. Disposition Petition is DISMISSED. The decision of the CA is affirmed.

UNIVERSAL ROBINA CORPORATION V CATAPANG 473 SCRA 189 CALLEJO, SR; October 14, 2005
FACTS - Petitioner Universal Robina Corporation is a corporation duly organized and existing under the Philippine laws, while petitioner Randy Gregorio is the manager of the petitioner companys duck farm in Calauan, Laguna. - The individual respondents were hired by the petitioner company on various dates from 1991 to 1993 to work at its duck farm in Barangay Sto. Tomas, Calauan, Laguna. The respondents were hired under an employment contract which provided for a five-month period. After the expiration of the said employment contracts, the petitioner company would renew them and re-employ the respondents. This practice continued until sometime in 1996, when the petitioners informed the respondents that they were no longer renewing their employment contracts. - In October 1996, the respondents filed separate complaints for illegal dismissal, reinstatement, backwages, damages and attorneys fees against the petitioners. The complaints were later consolidated. On March 30, 1999, after due proceedings, the Labor Arbiter rendered a decision in favor of the respondents, which NLRC and the CA affirmed. - On appeal, the petitioners submit that the respondents are not regular employees. They aver that it is of no moment that the respondents have rendered service for more than a year since they were covered by the five-month individual contracts to which they duly acquiesced. The petitioners contend that they were free to terminate the services of the respondents at the expiration of their individual contracts. The petitioners maintain that, in doing so, they merely implemented the terms of the contracts. - The petitioners assert that the respondents contracts of employment were not intended to circumvent security of tenure. They point out that the respondents knowingly and voluntarily agreed to sign the contracts without the petitioners having exercised any undue advantage over them. Moreover, there is no evidence showing that the petitioners exerted moral dominance on the respondents.[\ ISSUE WON the respondent employees of the corporation are regular employees and therefore their termination for causes outside of the Labor Code is patently illegal HELD YES Ratio An employee shall be deemed to be of regular status when he has been performing a job for at least one year even if the performance is not continuous and merely intermittent. Reasoning - In any case, we find that the CA, the NLRC and the Labor Arbiter correctly categorized the respondents as regular employees of the petitioner company. In Abasolo v. National Labor Relations Commission, the Court reiterated the test in determining whether one is a regular employee: - The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists. - It is obvious that the said five-month contract of employment was used by petitioners as a convenient subterfuge to prevent private respondents from becoming regular employees. Such contractual arrangement should be struck down or disregarded as contrary to public policy or morals. To uphold the same would, in effect, 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 in their jobs. Petitioners act of repeatedly and continuously hiring private respondents in a span of 3 to 5 years to do the same kind of work negates their contention that private respondents were hired for a specific project or undertaking only. - Further, factual findings of labor officials who are deemed to have acquired expertise in matters within their respective jurisdiction are generally accorded not only respect but even finality, and bind us when supported by substantial evidence.

Disposition petition is DENIED DUE COURSE. The Decision of the Court of Appeals is AFFIRMED.