164. Maxicare vs Contreras (G.R. No. 194352; Mendoza; Jan.

30, 2013)
Parties: Maxicare Healthcare, Eric Nubla, Jr., and Ruth Asis, petitioners
Marian Brigitte Contreras, respondent

Facts:
Sometime in March 2003, Maxicare hired Dr. Marian Brigitte Contreras as a retainer doctor at the PNB Head Office, Macapagal
Avenue, Manila. Under their verbal agreement, Dr. Contreras would render medical services for one year at P250 per hour. Her
retainer fee would be paid every 15th and 30th of each month based on her work schedule which was every Tuesday, Thursday and
Friday from 6am to 5pm.
On July 3, 2003, Dr. Ruth Asis, Maxicare’s medical specialist on Corporate Accounts, informed Dr. Contreras that she was going to be
transferred to another account after a month. On Aug. 4, 2003, the Service Agreement between Dr. Contreras and Dr. Eric Nubla,
Maxicare’s Vice-President for Medical Services, was executed, effecting the transfer of the former to Maybank for 4 months, from
Aug. 5, 2003 to Nov. 29, 2003, with a retainer fee of P168 per hour.
Dr. Contreras reported to Maybank for 1 day only. On Aug. 8, 2003, she filed a complaint before the Labor Arbiter claiming that she
was constructively dismissed. Maxicare, on the other hand, insisted that there was no constructive dismissal.
LA dismissed the complaint for lack of merit. Upon appeal, the NLRC reversed and set aside the LA’s decision. It declared that Dr.
Contreras was illegally dismissed and ordered her reinstatement with payment of backwages. Upon the denial of its motion for
reconsideration, Maxicare elevated its case to the CA raising the issue of jurisdiction for the first time. CA affirmed the NLRC.

Issue/Held: W/N the lack/ absence of jurisdiction can be raised for the first time on appeal. | NO.

Ratio:
Maxicare is already estopped from belatedly raising the issue of lack of jurisdiction considering that it has actively participated in the
proceedings before the LA and the NLRC. While jurisdiction may be assailed at any stage, a party’s active participation in the
proceedings before a court without jurisdiction will estop such party from assailing the lack of it. It is an undesirable practice of a
party to participate in the proceedings, submit his case for decision and then accept the judgment, if favorable, but attack it for lack of
jurisdiction, when adverse.
Maxicare never questioned the LA’s jurisdiction from the very beginning and never raised the issue of employer-employee relationship
throughout the LA proceedings.
Maxicare had 2 chances of raising the issue of jurisdiction: first, in the LA level and second, in the NLRC level. Unfortunately, it
remained silent on the issue of jurisdiction while actively participating in both tribunals. It was definitely too late for Maxicare to open
up the issue of jurisdiction in the CA.
Maxicare: there is no employer-employee relationship.
SC: A party who deliberately adopts a certain theory upon which the case is tried and decided by the lower court, will not be permitted
to change theory on appeal. Points of law, theories, issues and arguments not brought to the attention of the lower court need not be,
and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. It would be
unfair to the adverse party who would have no opportunity to present further evidence material to the new theory. To permit Maxicare
in this case to change its theory on appeal would thus be unfair to Dr. Contreras, and would offend the basic rules of fair play, justice
and due process.
The review of labor cases is confined to questions of jurisdiction or grave abuse of discretion. The alleged absence of employer-
employee relationship cannot be raised for the first time on appeal. The resolution of this issue requires the admission and calibration
of evidence and the LA and the NLRC did not pass upon it in their decisions.
Petitioner had insisted that respondent was dismissed from employment for cause and after the observance of the proper procedure for
termination. Consequently, petitioner cannot now deny that respondent is its employee. While jurisdiction cannot be conferred by acts
or omission of the parties, petitioner's belated denial that it is the employer of respondent is obviously an afterthought, a devise to
defeat the law and evade its obligations.
Higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below, but
ventilated for the first time only in a motion for reconsideration or on appeal. Petitioner is bound by its submissions that respondent is
its employee and it should not be permitted to change its theory. Such change of theory cannot be tolerated on appeal, not due to the
strict application of procedural rules, but as a matter of fairness.

Dispositive: Petition denied.

168. G.R. No. 178021 : January 25, 2012

REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE COMMISSION, Petitioner,v.MINERVA M.P. PACHEO,
Respondent.

MENDOZA, J.:

FACTS:

Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of Internal Revenue(BIR) in Revenue Region
No. 7 (RR7), Quezon City. The BIR issued Revenue Travel Assignment Order (RTAO)No. 25-2002, ordering the reassignment of
Pacheo as Assistant Chief, Legal Division from RR7 in Quezon City to RR4 in San Fernando, Pampanga.

Pacheo questioned the reassignment through her Letter addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR).
She considered her transfer from Quezon City to Pampanga as amounting to a constructive dismissal.

Due to the then inaction of the BIR, Pacheo filed a complaint before the CSC- National Capital Region (CSC-NCR), praying for the
nullification of RTAO No. 25-2002. The BIR, through its Deputy Commissioner for Legal and Inspection Group, Edmundo P. Guevara
(Guevara), denied Pacheos protest for lack of merit. It contended that her reassignment could not be considered constructive dismissal
as she maintained her position as Revenue Attorney IV and was designated as Assistant Chief of Legal Division.

Pacheo appealed to the CSC where the latter granted the same. However, the CSC held that rules and so holds that the withholding by
the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the
government on the principle of no work no pay. Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in
not finding that she was constructively dismissed and, therefore, entitled to back salary. However, the motion was dismissed.

Undaunted, Pacheo sought recourse before the CA via a petition for review. The CA reversed the CSC decision, stating that Pacheo
was constructively dismissed. Hence, this petition.

ISSUE: Whether or not the CA erred in ruling that Pacheo was constructively dismissed and entitled to backwages

HELD: No. Political Law- transfer or assignment of personnel cannot be done when the same is a preliminary step toward his removal
or a scheme to lure him away from his permanent position.

While a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it cannot be done
when the transfer is a preliminary step toward his removal, or a scheme to lure him away from his permanent position, or when it is
designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which
safeguards the tenure of office of those who are in the Civil Service.

Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines constructive dismissal as a situation
when an employee quits his work because of the agency heads unreasonable, humiliating, or demeaning actuations which render
continued work impossible. Hence, the employee is deemed to have been illegally dismissed. This may occur although there is no
diminution or reduction of salary of the employee. It may be a transfer from one position of dignity to a more servile or menial job.

The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work either in her original station in Quezon
City or her new place of assignment in San Fernando, Pampanga negates her claim of constructive dismissal.

It is clear, however, from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report to the
new place of assignment prior to questioning an alleged invalid reassignment imposed upon an employee. Pacheo was well within her
right not to report immediately to RR4, San Fernando, Pampanga, and to question her reassignment.

Reassignments involving a reduction in rank, status or salary violate an employees security of tenure, which is assured by the
Constitution, the Administrative Code of 1987, and the Omnibus Civil Service Rules and Regulations. Security of tenure covers not
only employees removed without cause, but also cases of unconsented transfers and reassignments, which are tantamount to
illegal/constructive removal.

Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and back wages? The Court agrees with the CA
that she is entitled to reinstatement, but finds Itself unable to sustain the ruling that she is entitled to full back wages and benefits. It is
a settled jurisprudence that an illegally dismissed civil service employee is entitled to back salaries but limited only to a maximum
period of five (5) years, and not full back salaries from his illegal dismissal up to his reinstatement.

Petition Denied