Labor- digests

3. PHILIPPINE AIRLINES vs. NLRC et al

G.R. No. 132805
Feb. 2, 1999

FACTS: Private respondent Dr. Fabros was employed as flight surgeon at

petitioner company. He was assigned at the PAL Medical Clinic and was on duty
from 4:00 in the afternoon until 12:00 midnight.
On Feb.17, 1994, at around 7:00 in the evening, Dr. FAbros left the clinic to have
his dinner at his residence, which was abou t5-minute drive away. A few minutes
later, the clinic received an emergency call from the PAL Cargo Services. One of
its employeeshad suffered a heart attack. The nurse on duty, Mr. Eusebio, called
private respondent at home to inform him of the emergency. The patient arrived at
the clinic at 7:50 in the evening and Mr. Eusebio immediately rushed him to the
hospital. When Dr. Fabros reached the clinic at around 7:51 in the evening, Mr.
Eusebio had already left with the patient to the hospital. The patient died the
following day.
Upon learning about the incident, PAL Medical Director ordered the Chief Flight
Surgeon to conduct an investigation. In his explanation, Dr. Fabros asserted that
he was entitled to a thirty-minute meal break; that he immediately left his
residence upon being informed by Mr. Eusebio about the emergency and he
arrived at the clinic a few minutes later; that Mr. Eusebio panicked and brought the
patient to the hospital without waiting for him.
Finding private respondent's explanation unacceptable, the management charged
private respondent with abandonment of post while on duty. He denied that he
abandoned his post on February 17, 1994. He said that he only left the clinic to
have his dinner at home. In fact, he returned to the clinic at 7:51 in the evening
upon being informed of the emergency.
After evaluating the charge as well as the answer of private respondent, he was
given a suspension for three months effective December 16, 1994.
Private respondent filed a complaint for illegal suspension against petitioner.
On July 16, 1996, the Labor Arbiter rendered a decision declaring the suspension
of private respondent illegal. It also ordered petitioner to pay private respondent
the amount equivalent to all the benefits he should have received during his period
of suspension plus P500,000.00 moral damages.
Petitioner appealed to the NLRC.
The NLRC, however, dismissed the appeal after finding that the decision of the
Labor Arbiter is supported by the facts on record and the law on the matter. The
NLRC likewise denied petitioner's motion for reconsideration.
Hence, this petition.

being informed of Mr. Acosta's condition, private respondent immediately left his
home and returned to the clinic. These facts belie petitioner's claim of abandonment.
Petitioner argues that being a full-time employee, private respondent is obliged to
stay in the company premises for not less than eight (8) hours. Hence, he may not
leave the company premises during such time, even to take his meals.
We are not impressed.
Art. 83 and 85 of the Labor Code read:
Art. 83. Normal hours of work. The normal hours of work of any employee
shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a population of at least one
million (1,000,000) or in hospitals and clinics with a bed capacity of at least one
hundred (100) shall hold regular office hours for eight (8) hours a day, for five
(5) days a week, exclusive of time for meals, except where the exigencies of
the service require that such personnel work for six (6) days or forty-eight (48)
hours, in which case they shall be entitled to an additional compensation of at
least thirty per cent (30%) of their regular wage for work on the sixth day. For
purposes of this Article, "health personnel" shall include: resident physicians,
nurses, nutritionists, dieticians, pharmacists, social workers, laboratory
technicians, paramedical technicians, psychologists, midwives, attendants and
all other hospital or clinic personnel. (emphasis supplied)
Art. 85. Meal periods. Subject to such regulations as the Secretary of Labor
may prescribe, it shall be the duty of every employer to give his employees not
less than sixty (60) minutes time-off for their regular meals.
Sec. 7, Rule I, Book III of the Omnibus Rules Implementing the Labor Code
further states:
Sec. 7. Meal and Rest Periods. Every employer shall give his employees,
regardless of sex, not less than one (1) hour time-off for regular meals, except
in the following cases when a meal period of not less than twenty (20) minutes
may be given by the employer provided that such shorter meal period is
credited as compensable hours worked of the employee;
(a) Where the work is non-manual work in nature or does not involve strenuous
physical exertion;
(b) Where the establishment regularly operates not less than sixteen hours a
day;
(c) In cases of actual or impending emergencies or there is urgent work to be
performed on machineries, equipment or installations to avoid serious loss
which the employer would otherwise suffer; and
(d) Where the work is necessary to prevent serious loss of perishable goods.

ISSUE:
WON the nullifying of the 3-month suspension by the NLRC erroneous.
WON the awarding of moral damages is proper.

Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall
be considered as compensable working time.

HELD: The petition is PARTIALLY GRANTED. The portion of the assailed decision
awarding moral damages to private respondent is DELETED. All other aspects of
the decision are AFFIRMED

Thus, the eight-hour work period does not include the meal break. Nowhere in
the law may it be inferred that employees must take their meals within the company
premises. Employees are not prohibited from going out of the premises as long as
they return to their posts on time. Private respondent's act, therefore, of going home
to take his dinner does not constitute abandonment.

1.
2.

1.

The legality of private respondent's suspension:

Dr. Fabros left the clinic that night only to have his dinner at his house, which was
only a few minutes' drive away from the clinic. His whereabouts were known to the
nurse on duty so that he could be easily reached in case of emergency. Upon

2. The award of moral damages:

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Not every employee who is illegally dismissed or suspended is entitled to
damages. As a rule, moral damages are recoverable only where the dismissal or
suspension of the employee was attended by bad faith or fraud, or constituted an
act oppressive to labor, or was done in a manner contrary to morals, good
customs or public policy
In the case at bar, there is no showing that the management of petitioner company
was moved by some evil motive in suspending private respondent. It suspended
private respondent on an honest, albeit erroneous, belief that private respondent's
act of leaving the company premises to take his meal at home constituted
abandonment of post which warrants the penalty of suspension. Under the
circumstances, we hold that private respondent is not entitled to moral damages.

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4. PNB V PNB EMPLOYEES ASSOCIATION
115 SCRA 507
July 30, 1982
NATURE
Appeal from decision of the Court of Industrial Relations (CIR)
FACTS
- PNB and PNB Employees Association (PEMA) had a dispute regarding the
proper computation of overtime pay. PEMA wanted the cost of living allowance
(granted in 1958) and longevity pay (granted in 1961) to be included in the
computation. PNB disagreed and the 2 parties later went before the CIR to resolve
the dispute.
- CIR decided in favor of PEMA and held that PNB should compute the overtime
pay of its employees on the basis of the sum total of the employees basic salary
or wage plus cost of living allowance and longevity pay. The CIR relied on the
ruling in NAWASA v NAWASA Consolidated Unions, which held that for purposes
of computing overtime compensation, regular wage includes all payments which
the parties have agreed shall be received during the work week, including
differentiated payments for working at undesirable times, such as at night and the
board and lodging customarily furnished the employee. This prompted PNB to
appeal, hence this case.
ISSUE
WON the cost of living allowance and longevity pay should be
included in the computation of overtime pay as held by the CIR
HELD
NO
Ratio Overtime pay is for extra effort beyond that
contemplated in the employment contract; additional pay given for any other
purpose cannot be included in the basis for the computation of overtime pay.
- Absent a specific provision in the CBA, the bases for the
computation of overtime pay are 2 computations, namely:
1. WON the additional pay is for extra work done or service
rendered
2. WON the same is intended to be permanent and regular, not contingent nor
temporary as a given only to remedy a situation which can change any time.
Reasoning
- Longevity pay cannot be included in the computation of
overtime pay for the very simple reason that the contrary is expressly stipulated in
the CBA, which constitutes the law between the parties.
- As regards cost of living allowance, there is nothing in Commonwealth Act 444
[or the 8-hour Labor Law, now Art. 87 Labor Code] that could justify PEMAs
posture that it should be added to the regular wage in computing overtime pay.
C.A. 444 prescribes that overtime work shall be paid at the same rate as their
regular wages or salary, plus at least 25% additional. The law did not define what
is a regular wage or salary. What the law emphasized is that in addition to regular
wage, there must be paid an additional 25% of that regular wage to constitute
overtime rate of pay. Parties were thus allowed to agree on what shall be mutually
considered regular pay from or upon which a 25% premium shall be based and
added to makeup overtime compensation.
- No rule of universal application to other cases may be justifiably extracted from
the NAWASA case. CIR relies on the part of the NAWASA decision where the SC
cited American decisions whose legislation on overtime is at variance with the law

in this jurisdiction. The US legislation considers work in excess of forty hours a week
as overtime; whereas, what is
generally considered overtime in the Philippines is work in
excess of the regular 8 hours a day. It is understandably
material to refer to precedents in the US for purposes of computing weekly wages
under a 40-hour week rule, since the particular issue involved in NAWASA is the
conversion of prior weekly regular earnings into daily rates without allowing
diminution or addition.
- To apply the NAWASA computation would require a different formula for each and
every employee. It would require reference to and continued use of individual
earnings in the past, thus multiplying the administrative difficulties of the Company. It
would be cumbersome and tedious a process to compute overtime pay and this may
again cause delays in payments, which in turn could lead to serious disputes. To
apply this mode of computation would retard and stifle the growth of unions
themselves as Companies would be irresistibly drawn into denying, new and
additional fringe benefits, if not those already existing, for fear of bloating their
overhead expenses through overtime which, by reason of being unfixed, becomes
instead a veritable source of irritant in labor relations.
**Overtime Pay Rationale Why is a laborer or employee who works beyond the
regular hours of work entitled to extra compensation called, in this enlightened time,
overtime pay?
Verily, there can be no other reason than that he is made to work longer than what is
commensurate with his agreed compensation for the statutorily fixed or voluntarily
agreed hours of labor he is supposed to do. When he thus spends additional time to
his work, the effect upon him is multi- faceted; he puts in more effort, physical and/or
mental; he is delayed in going home to his family to enjoy the comforts thereof; he
might have no time for relaxation, amusement or sports; he might miss important prearranged engagements; etc. It is thus the additional work, labor or service employed
and the adverse effects just mentioned of his longer stay in his place of work that
justify and are the real reasons for the extra compensation that is called overtime
pay.
**Overtime Pay Definition The additional pay for service or
work rendered or performed in excess of 8 hours a day by employees or laborers in
employment covered by the 8 hour Labor Law [C.A. 444, now Art. 87 Labor Code]
and not exempt from its requirements. It is computed by multiplying the overtime
hourly rate by the number of hours worked in excess of eight.
Disposition decision appealed from is REVERSED

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6. SALAZAR VS. NLRC
G.R. No 109210
APRIL 17, 1996

FACTS: On 17 April 1990, private respondent Carlos Construction, at a monthly

salary of P4,500.00, employed Salazar as construction/project engineer for the
construction of a building in Cubao. Allegedly, by virtue of an oral contract,
petitioner would also receive a share in the profits after completion of the project
and that petitioner's services in excess of 8 ours on regular days and services
rendered on weekends and legal holidays shall be compensable overtime.
On 16 April 1991, petitioner received a memorandum issued by private
respondent's project manager informing him of the termination of his services
effective on 30 April 1991.
On 13 September 1991, Salazar filed a complaint against private respondent for
illegal dismissal, unfair labor practice, illegal deduction, non-payment of wages,
overtime rendered, service incentive leave pay, commission, allowances, profitsharing and separation pay with the NLRC-NCR Arbitration Branch, Manila.
The Labor Arbiter rendered a decision dismissing the instant case for lack of merit.
Petitioner appealed to the NLRC, where it affirmed in toto the decision of the Labor
Arbiter. His MR was likewise dismissed. Hence the instant petition.
ISSUE:
1) WON petitioner is entitled to overtime pay, premium pay for services rendered
on rest days and holidays and service incentive leave pay
2) WON petitioner is entitled to a share in the profits of the construction project;.
3) WON petitioner rendered services from 1 May to 15 May 1991 and is, therefore,
entitled to unpaid wages;
4) WON private respondent is liable to reimburse petitioner's legal expenses and;

petitioner and private respondent. Petitioner's rationalization stretches the

imagination way too far.
Also, as said by the Labor Arbiter:
As to the issue of profit sharing, we simply cannot grant the same on the mere basis
of complainant's allegation that respondent verbally promised him that he is entitled
to a share in the profits derive(d) from the projects. Benefits or privileges of this
nature (are) usually in writing, besides complainant failed to (establish) that said
benefits or privileges (have) been given to any of respondent('s) employees as a
matter of practice or policy.
3. YES. On April 30, he was advised by the Manager to continue supervising the
finishing touches to the building until May 15, the date appearing in the Certificate of
Service as the date of the termination of the contract between Salazar and the
Company. But the Manager insists that Salazars services terminated at April 30
according to the Memorandum given the petitioner.
The purpose for which the said certificate was issued becomes irrelevant. The fact
remains that private respondent knowingly and voluntarily issued the certificate. Mere
denials and self-serving statements to the effect that petitioner allegedly promised
not to use the certificate against private respondent are not sufficient to overturn the
same. Hence, private respondent is estopped from assailing the contents of its own
certificate of service.
4. YES. During the construction of the building, a criminal complaint for unjust
vexation was filed against the officers of the owner of the building. Petitioner avers
that he was implicated in the complaint for the sole reason that he was the
construction engineer of the project.
Although not directly implicated in the criminal complaint, Carlos Construction is
nonetheless obligated to defray petitioner's legal expenses. Petitioner was included
in the complaint not in his personal capacity but in his capacity as project engineer of
private respondent and the case arose in connection with his work as such. At the
construction site, petitioner is the representative of private respondent being its
employee and he acts for and in behalf of private respondent. Hence, the inclusion of
petitioner in the complaint for unjust vexation, which was work-related, is equivalent
to inclusion of private respondent itself.

5. NO. On the last issue, we rule that petitioner is a project employee and, therefore,
not entitled to separation pay.

5) WON petitioner is entitled to separation pay.

HELD: The assailed decision is modified.
1. NO. Although petitioner cannot strictly be classified as a managerial employee,
nonetheless he is still not entitled to payment of the aforestated benefits because
he falls squarely under another exempt category "officers or members of a
managerial staff" as defined under sec. 2(c) of the abovementioned implementing
rules:
Sec. 2. Exemption. The provisions of this Rule shall not apply to the
following persons if they qualify for exemption under the condition set forth
herein:xxx
(c) Officers or members of a managerial staff xxx
That petitioner was paid overtime benefits does not automatically and necessarily
denote that petitioner is entitled to such benefits

The applicable provision is Article 280 of the Labor Code which defines the term
"project employee," thus:
Art. 280. Regular and Casual Employment. The provisions of written
agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific period
or undertaking the completion or termination of which has been determined
at the time of the engagement of the employee or where the work or services
to be performed is seasonal in nature and the employment is for the duration
of the season. (Emphasis ours.)
In the case at bench, it was duly established that private respondent hired petitioner
as project or construction engineer specifically for its Monte de Piedad building
project. Accordingly, as project employee, petitioner's services are deemed
coterminous with the project, that is, petitioner's services may be terminated as soon
as the project for which he was hired is completed. There can be no dispute that
petitioner's dismissal was due to the completion of the construction of the building.

2. NO. petitioner insists that private respondent promised him a share in the
profits after completion of the construction project. It is because of this oral
agreement, petitioner elucidates, that he agreed to a monthly salary of
P4,500.00, an amount which he claims is too low for a professional civil NOTES:
engineer like him with the rank of project engineer.
1. Although we agree with private respondent that appeals to the SC from decisions
We cannot accede to petitioner's demand. Nowhere in the disbursement vouchers of the NLRC should be in the form of a special civil action for certiorari under Rule 65
can we find even the remotest hint of a profit-sharing agreement between of the Revised Rules of Court, this rule is not inflexible. In a number of cases this

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Court has resolved to treat as special civil actions for certiorari petitions
erroneously captioned as petitions for review on certiorari "in the interest of
justice."

2. Policy Instruction No. 20 entitled "Stabilizing Employer-Employee Relations in

the Construction Industry" explicitly mandates that:
xxx xxx xxx
Project employees are not entitled to termination pay if they are terminated as a
result of the completion of the project or any phase thereof in which they are
employed, regardless of the number of projects in which they have been
employed by a particular construction company. Moreover, the company is not
required to obtain a clearance from the Secretary of Labor in connection with
such termination. What is required of the company is a report to the nearest
Public Employment Office for statistical purposes.

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8. GLOBAL INC. vs. ATIENZA ET AL
G.R. No.L-51612-13
JULY 22, 1986

FACTS: Rosal, herein private respondent, commenced her employment with

petitioner Global Incorporated in February, 1970, as a "Sales Clerk." In November
1976 Global Inc. filed with the Department of Labor Regional Office, an application
for clearance to terminate the services of Clarita Rosal, for having violated
company rules and regulations by incurring repeated absences and tardiness. The
subject employee was placed under preventive suspension on November 16,
1976 pending resolution of the application for clearance.c
Clarita Rosal filed her opposition to the clearance application as well as a countercomplaint against Global Inc., for illegal dismissal, overtime pay and premium pay.
The officer-in-charge of Regional Office, Ministry of labor Leogardo, Jr. lifted the
preventive suspension of Clarita Rosal, finding her suspension not warranted, and
reinstated her to her former position without loss of rights and with full backwages
from the time of preventive suspension up to the date of her actual reinstatement.
The Labor Arbiter rendered his decision dismissing the complaint for illegal
dismissal, overtime compensation and premium pay, and the clearance for the
complainants termination is granted.
Rosal appealed the aforesaid decision to the NLRC.Respondents Commissioners
Atienza and Quadra modified the appealed decision, whereby:
(a) respondent is ordered to pay complainant overtime pay for the period
Nov. 1, 1974 to Nov. 16, 1976 when she was suspended;
(b) respondent is likewise ordered to pay complainant backwages from Dec.
2, 1976 to May 31, 1978;
(c) the decision of the Labor Arbiter granting clearance to terminate the
services of the complainant is affirmed.
Respondent Commissioner Villatuya voted to affirm the Labor Arbiter's decision.
Hence, the instant petition.
ISSUE: WON
1.
2.

Rosal is entitled to overtime pay

Rosal is entitled to backwages

HELD: The assailed decision of the NLRC is modified, where the order to pay
overtime pay to Rosal is set aside, the order to pay Rosal backwages affirmed,
and the decision granting clearance to terminate the services of Rosal likewise
affirmed
1. NO. We agree with the conclusion of the Labor Arbiter that the same should be
denied for want of sufficient factual and legal basis. No employee is authorized to
work after office hours, during Sundays and Holidays unless required by a written
memorandum from the General Manager. During the period from Nov. 1, 1974 to
Nov. 16, 1976, no employee of the company was never required to work after 5:00
in the afternoon. There is nothing in the record except her bare allegations which
would show that she truly and actually rendered said overtime work
2. YES. the NLRC ordered petitioner to pay Rosal "backwages from Dec. 2, 1976
to May 31, 1978", the date when Asst. Secretary Leogardo, Jr., rendered his
decision lifting the preventive suspension of Rosal and ordering petitioner to
reinstate her to her former position without loss of rights and with full backwages
from the time of preventive suspension up to the date of her actual reinstatement.c

We agree. We note that this decision of the Labor Arbiter ordering reinstatement had
not been complied with. Neither was it appealed by petitioner, therefore, the decision
had become final and executory. To exempt petitioner from the payment of
backwages would be to give premium to the blant disregard of orders of the Ministry
of Labor. Moreover, it would be in consonance with compassionate justice that Rosal
be paid backwages during the period that she was supposed to be reinstated
Note that the only ground for the imposition of preventive suspension is provided for
under Sec. 4, Rule XIV of the Implementing Regulations of the Ministry of Labor
which readsSEC. 4. Preventive suspension. The employer may place the employee
concerned under preventive suspension only if the continued employment of
the employee poses a serious and imminent threat to the life or property of
the employer or of the co-employees. Any preventive suspension before the
filing of the application shall be considered worked days, and shall be duly
paid as such if the continued presence of the employee concerned does not
pose a serious threat to the life and property of the employer or of the coemployees.
As aptly held by Asst. Secretary Leogardo Jr., the continued presence of Clarita
Rosal never posed a serious and imminent threat to the life or property of the
employer or co-employees as would warrant her preventive suspension

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9. LAGATIC VS. NLRC ET AL
G.R. No. 121004
JAN. 28, 1998
FACTS: Petitioner Lagatic was employed by Cityland, first as a probationary sales
agent, and later on as a marketing specialist. He was tasked with soliciting sales
for the company, with the corresponding duties of accepting call-ins, referrals, and
making client calls and cold calls. Cold calls refer to the practice of prospecting for
clients through the telephone directory. Cityland, believing that the same is an
effective and cost-efficient method of finding clients, requires all its marketing
specialists to make cold calls. Likewise, in order to assess cold calls made by
the sales staff, as well as to determine the results thereof, Cityland requires the
submission of daily progress reports on the same.
Cityland issued a written reprimand to petitioner for his failure to submit cold call
reports for some time. This notwithstanding, petitioner again failed to submit cold
call reports. Petitioner was required to explain his inaction, with a warning that
further non-compliance would result in his termination from the company. In a
reply, petitioner claimed that the same was an honest omission brought about by
his concentration on other aspects of his job. Cityland found said excuse
inadequate and suspended him for three days, with a similar warning.
Notwithstanding the aforesaid suspension and warning, petitioner again failed to
submit cold call reports. He was verbally reminded to submit the same and was
even given up a due date to do so. Instead of complying with said directive,
petitioner wrote a note, "TO HELL WITH COLD CALLS! WHO CARES?" and
exhibited the same to his co-employees.
Petitioner received a memorandum requiring him to explain why Cityland should
not make good its previous warning for his failure to submit cold call reports, as
well as for issuing the written statement aforementioned. He sent a letter-reply
alleging that his failure to submit cold call reports should trot be deemed as gross
insubordination. He denied any knowledge of the damaging statement allegedly
made by him.
Finding petitioner guilty of gross insubordination, Cityland served a notice of
dismissal upon him on February 26, 1993.
Aggrieved by such dismissal, petitioner filed a complaint against Cityland for illegal
dismissal, illegal deduction, underpayment, overtime and rest day pay, damages
and attorney's fees. The labor arbiter dismissed the petition for lack of merit. On
appeal, the same was affirmed by the NLRC; hence the present recourse.
ISSUE: Petitioner raises the following issues:
1. WON RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN NOT
FINDING THAT PETITIONER WAS ILLEGALLY DISMISSED;
2. WON RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN RULING
THAT PETITIONER IS NOT ENTITLED TO SALARY DIFFERENTIALS,
BACKWAGES, SEPARATION PAY, OVERTIME PAY, REST DAY PAY, UNPAID
COMMISSIONS, MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S
FEES.
HELD:
1. To constitute a valid dismissal from employment, two requisites must be met,
namely:
(1) the employee must be afforded due process, and
(2) the dismissal must be for a valid cause
Petitioner loses sight of the fact that "(e)xcept as provided for, or limited by, special
laws, an employer is free to regulate, according to his discretion and judgment, all
aspects of employment." Employers may, thus, make reasonable rules and
regulations for the government of their employees, and when employees, with

knowledge of an established rule, enter the service, the rule becomes a part of the
contract of employment. It is also generally recognized that company policies and
regulations, unless shown to be grossly oppressive or contrary to law, are generally
valid and binding on the parties and must be complied with. "Corollarily, an employee
may be validly dismissed for violation of a reasonable company rule or regulation
adopted for the conduct of the company business. An employer cannot rationally be
expected to retain the employment of a person whose . . . lack of regard for his
employer's rules . . . has so plainly and completely been bared." Petitioner's
continued infraction of company policy requiring cold call reports, as evidenced by
the 28 instances of non-submission of aforesaid reports, justifies his dismissal.
Moreover, petitioner made it worse for himself when he wrote the statement, "TO
HELL WITH COLD CALLS! WHO CARES?" When required to explain, he merely
denied ally knowledge of the same. Cityland, on the other hand, submitted the
affidavits of his co-employees attesting to his authorship of the same. Petitioner's
only defense is denial. The rule, however, is that denial, if unsubstantiated by clear
and convincing evidence, is negative and self-serving evidence which has no weight
in law.
Based on the foregoing, we find petitioner guilty of willful disobedience. Willful
disobedience requires the concurrence of at least two requisites:
a. the employee's assailed conduct must have been willful or intentional, the
willfulness being characterized by a wrongful and perverse attitude; and
b. the order violated must have been reasonable, lawful, made known to the
employee and must pertain to the duties which he had been engaged to discharge
2. With the finding that petitioner's dismissal was for a just and valid cause, his claims
for moral and exemplary damages, as well as attorney's fees, must fail.
Also, petitioner failed to show his entitlement to overtime and rest day pay due, to
the lack of sufficient evidence as to the number of days and hours when he rendered
overtime and rest day work. Entitlement to overtime pay must first be established by
proof that said overtime work was actually performed, before an employee may avail
of said benefit.
NOTES:
1. There is no law which requires employers to pay commissions, and when they do
so, as stated in the letter-opinion of the DOLE dated February 19, 1993, "there is no
law which prescribes a method for computing commissions. The determination of the
amount of commissions is the result of collective bargaining negotiations, individual
employment contracts or established employer practice." Since the formula for the
computation of commissions was presented to and accepted by petitioner, such
prescribed formula is in order. As to the allegation that said formula diminishes the
benefits being received by petitioner whenever there is a wage increase, it must be
noted that his commissions are not meant to be in a fixed amount. In fact, there was
no assurance that he would receive any commission at all. Non-diminution of
benefits, as applied here, merely means that the company may not remove the
privilege of sales personnel to earn a commission, not that they are entitled to a fixed
amount thereof.
2. In addition to the above, the labor arbiter and the NLRC sanctioned Citylands
practice of offsetting rest day or holiday work with equivalent time on regular
workdays on the ground that the same is authorized by Department Order 21, Series
of 1990. As correctly pointed out by petitioner, said D.O. was misapplied in this case.
The D.O. involves the shortening of the workweek from six days to five days but with
prolonged hours on those five days. Under this scheme, non-payment of overtime
premiums was allowed in exchange for longer weekends for employees. In the
instant case, petitioner's workweek was never compressed. Instead, he claims
payment for work over and above his normal 5 1/2 days of work in a week. Applying
by analogy the principle that overtime cannot be offset by undertime, to allow offsetting would prejudice the worker. He would be deprived of the additional pay for the
rest day work he has rendered and which is utilized to offset his equivalent time off
on regular workdays. To allow Cityland to do so would be to circumvent the law on
payment of premiums for rest day and holiday work.