A.

Women

Labor Code: Articles 130, 132-136

Omnibus Rules: Book III, Rule XII, Sections 1, 4-14

R.A. 9710, Magna Carta of Women, Section 1-3, 4 (b) & k, 22, 35, 41 R.A. 7877, Anti-sexual Harassment Act
of 1995

SECOND DIVISION

[G.R. No. 118978. May 23, 1997.]

PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner,vs.NATIONAL LABOR RELATIONS

COMMISSION and GRACE DE GUZMAN, respondents.

D. P. Mercado & Associates for petitioner.

AC Estrada & Partner for private respondent.

SYLLABUS

1. LABOR AND SOCIAL LEGISLATION; LABOR CODE; EMPLOYMENT; EMPLOYER'S POLICY OF NOT ACCEPTING FOR
WORK ANY WOMAN WORKER WHO CONTRACTS MARRIAGE, CONTRARY TO LAW, GOOD MORALS AND PUBLIC POLICY.
— In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker
who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by
our labor laws and by no less than the Constitution. Petitioner's policy is not only in derogation of the provisions of
Article 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in
connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a
woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and
inalienable right. Hence, while it is true that the parties to a contract may establish any agreements, terms, and
conditions that they may deem convenient the same should not be contrary to law, morals, good customs, public order,
or public policy. Carried to its logical consequences, it may even be said that petitioner's policy against legitimate marital
bonds would encourage illicit or common-law relations and subvert the sacrament of marriage.

2. ID.;ID.;ID.;DISMISSAL; LOSS OF CONFIDENCE, VALID GROUND. — While loss of confidence is a just cause of
termination of employment, it should not be simulated. It must rest on an actual breach of duty committed by the
employee and not on the employer's caprices. Furthermore, it should never be used as a subterfuge for causes which
are improper, illegal, or unjustified.

3. ID.;ID.;ID.;ID.;ID.;CONCEALMENT OF FEMALE EMPLOYEE OF TRUE NATURE OF STATUS FOR FEAR OF BEING

DISQUALIFIED FROM WORK, NOT SUFFICIENT BASIS. — Contrary to petitioner's assertion that it dismissed private
respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company
were dissolved principally because of the company's policy that married women are not qualified for employment in PT
& T, and not merely because of her supposed acts of dishonesty. Private respondent's act of concealing the true nature
of her status from PT & T could not be properly characterized as willful or in bad faith as she was moved to act the way
she did mainly because she wanted to retain a permanent job in a stable company. In other words, she was practically
forced by that very same illegal company policy into misrepresenting her civil status for fear of being disqualified from
work.

4. ID.;ID.;ID.;ID.;FAILURE TO REMIT COMPANY FUNDS, NOT AN ADDITIONAL GROUND; CASE AT BAR. — Finally,
petitioner's collateral insistence on the admission of private respondent that she supposedly misappropriated company
funds, as an additional ground to dismiss her from employment, is somewhat insincere and self-serving. Concededly,
private respondent admitted in the course of the proceedings that she failed to remit some of her collections, but that is
an altogether different story. The fact is that she was dismissed solely because of her concealment of her marital status,
and not on the basis of that supposed defalcation of company funds. That the labor arbiter would thus consider
petitioner's submissions on this a mere afterthought, just too bolster its supposed dishonesty as case for dismissal, is a
perceptive conclusion born of experience in labor cases. For, there was no showing that private respondent deliberately
misappropriated the amount or whether her failure to remit the same was through negligence and, if so, whether the
negligence was in nature simple or grave. In fact, it was merely agreed that private respondent execute a promissory
note to refund the same, which she did, and the matter was deemed settled as a peripheral issue in the labor case.

5. ID.;ID.;ID.,EMPLOYEE ILLEGALLY DISMISSED A FEW DAYS BEFORE COMPLETION OF HER PROBATIONARY

EMPLOYMENT AND WHO WAS PREVIOUSLY HIRED RELIEVER FOR SEVERAL TIMES GAINED REGULAR STATUS. — Private
respondent, it must be observed, had gained regular status at the time of her dismissal. When she was served her
walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as she was
contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just when her
probationary period was winding down clearly raises the plausible conclusion that it was done in order to prevent her
from earning security of tenure. On the other hand, her earlier stints with the company as reliever were undoubtedly
those of a regular employee, even if the same were for fixed periods, as she performed activities which were essential or
necessary in the usual trade and business of PT & T. The primary standard of determining regular employment is the
reasonable connection between the activity performed by the employee in relation to the business or trade of the
employer.

6. ID.;ID.;ID.;ID.;ENTITLED TO REINSTATEMENT WITHOUT LOSS OF SENIORITY RIGHTS AND OTHER PRIVILEGES. —

As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she is
entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of
allowances and other benefits or their monetary equivalent.

7. ID.;ID.;ID.;ID.;ID; PERIOD OF SUSPENSION FOR DISHONESTY DEDUCTED FROM AMOUNT RECOVERABLE FOR
ILLEGAL DISMISSAL. — However, as she had undeniably committed an act of dishonesty, in concealing her status, albeit
under the compulsion of an unlawful imposition of petitioner, the three-month suspension imposed by respondent
NLRC must be upheld to obviate the impression or inference that such act should be condoned. It would be unfair to the
employer if she were to return to its fold without any sanction whatsoever for her act which was not totally, justified.
Thus, her entitlement to back wages, which shall be computed from the time her compensation was withheld up to the
time of her actual reinstatement, shall be reduced by, deducting therefrom the amount corresponding to her three
months suspension.

8. CIVIL LAW; OBLIGATIONS AND CONTRACTS; CONTRACT OF LABOR; IMPRESSED WITH PUBLIC POLICY SHOULD
NOT CONTAIN OPPRESSIVE PROVISIONS NOR IMPAIR THE INTEREST OR CONVENIENCE OF THE PUBLIC; POLICY AGAINST
MARRIAGE, A PROHIBITED PROVISION. — Parenthetically, the Civil Code provisions on the contract of labor state that
the relations between the parties, that is, of capital and labor, are not merely, contractual, impressed as they are with so
much public interest that the same should yield to the common good. It goes on to intone dust neither capital nor labor
should visit acts of oppression against the other, nor impair the interest or convenience of the public. In the final
reckoning, the danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at the very
essence, ideals and purpose of marriage as an inviolable social institution and. ultimately, of the family as the foundation
of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required.

DECISION

REGALADO, J p:

Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph and Telephone
Company (hereafter, PT&T) invokes the alleged concealment of civil status and defalcation of company funds as grounds
to terminate the services of an employee. That employee, herein private respondent Grace de Guzman, contrarily
argues that what really motivated PT&T to terminate her services was her having contracted marriage during her
employment, which is prohibited by petitioner in its company policies. She thus claims that she was discriminated
against in gross violation of law, such a proscription by an employer being outlawed by Article 136 of the Labor Code.

Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project
Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on maternity
leave. 1 Under the Reliever Agreement which she signed with petitioner company, her employment was to be
immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1, 1991, and from
July 19, 1991 to August 8, 1991, private respondent' s services as reliever were again engaged by petitioner, this time in
replacement of one Erlinda F. Dizon who went on leave during both periods. 2 After August 8, 1991, and pursuant to
their Reliever Agreement, her services were terminated. LibLex

On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary
employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up
for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted
marriage a few months earlier, that is, on May 26, 1991. 3

It now appears that private respondent had made the same representation in the two successive reliever
agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the same
later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January 15,
1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the company's policy of
not accepting married women for employment. 4

In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's policy
regarding married women at the time, and that all along she had not deliberately hidden her true civil status. 5
Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from the company
effective January 29, 1992, 6 which she readily contested by initiating a complaint for illegal dismissal, coupled with a
claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration Branch of the National Labor
Relations Commission in Baguio City.

At the preliminary conference conducted in connection therewith, private respondent volunteered the
information, and this was incorporated in the stipulation of facts between the parties, that she had failed to remit the
amount of P2,380.75 of her collections. She then executed a promissory note for that amount in favor of petitioner. 7 All
of these took place in a formal proceeding and with the agreement of the parties and/or their counsel.

On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision declaring that private
respondent, who had already gained the status of a regular employee, was illegally dismissed by petitioner. Her
reinstatement, plus payment of the corresponding back wages and COLA, was correspondingly ordered, the labor arbiter
being of the firmly expressed view that the ground relied upon by petitioner in dismissing private respondent was clearly
insufficient, and that it was apparent that she had been discriminated against on account of her having contracted
marriage in violation of company rules.

On appeal to the National Labor Relations Commission (NLRC),said public respondent upheld the labor arbiter
and, in its decision dated April 29, 1994, it ruled that private respondent had indeed been the subject of an unjust and
unlawful discrimination by her employer, PT&T. However, the decision of the labor arbiter was modified with the
qualification that Grace de Guzman deserved to be suspended for three months in view of the dishonest nature of her
acts which should not be condoned. In all other respects, the NLRC affirmed the decision of the labor arbiter, including
the order for the reinstatement of private respondent in her employment with PT&T.

The subsequent motion for reconsideration filed by petitioner was rebuffed by respondent NLRC in its resolution
of November 9, 1994, hence this special civil action assailing the aforestated decisions. of the labor arbiter and
respondent NLRC, as well as the denial resolution of the latter.

1. Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but,
through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women
constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor,
especially on the matter of equal employment opportunities and standards. In the Philippine setting, women have
traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded with
preventive and remedial social legislation against discriminatory and exploitative practices in hiring, training, benefits,
promotion and retention.

The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and
political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II 8 on
the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and
commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary
thereto, Section 3 of Article XIII 9 (the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly
requires the State to afford full protection to labor and to promote full employment and equality of employment
opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of
Article XIII 10 mandates that the State shall protect working women through provisions for opportunities that would
enable them to reach their full potential.

2. Corrective labor and social laws on gender inequality have emerged with more frequency in the years since
the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country's commitment as
a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW). 11
 Principal among these laws are Republic Act No. 6727 12 which explicitly prohibits discrimination against women
with respect to terms and conditions of employment, promotion, and training opportunities, Republic Act No. 6955 13
which bans the "mail-order-bride" practice for a fee and the export of female labor to countries that cannot guarantee
protection to the rights of women workers; Republic Act No. 7192, 14 also known as the "Women in Development and
Nation Building Act," which affords women equal opportunities with men to act and to enter into contracts, and for
appointment, admission, training, graduation, and commissioning in all military or similar schools of the Armed Forces of
the Philippines and the Philippine National Police; Republic Act No. 7322 15 increasing the maternity benefits granted to
women in the private sector; Republic Act No. 7877 16 which outlaws and punishes sexual harassment in the workplace
and in the education and training environment; and Republic Act No. 8042, 17 or the "Migrant Workers and Overseas
Filipinos Act of 1995," which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with
emphasis on women, only in countries where their rights are secure. Likewise, it would not be amiss to point out that in
the Family Code, 18 women's rights in the field of civil law have been greatly enhanced and expanded.

In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof.
Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women to be
provided with facilities and standards which the Secretary of Labor may establish to ensure their health and safety. For
purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar or other
similar establishments shall be considered as an employee under Article 138. Article 135, on the other hand, recognizes
a woman' s right against discrimination with respect to terms and conditions of employment on account simply of sex.
Finally, and this brings us to the issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the
marriage of a female employee.

3. Acknowledged as paramount in the due process scheme is the constitutional guarantee of protection to labor
and security of tenure. Thus, an employer is required, as a condition sine qua non prior to severance of the employment
ties of an individual under his employ, to convincingly establish, through substantial evidence, the existence of a valid
and just cause in dispensing with the services of such employee, one' s labor being regarded as constitutionally
protected property.

On the other hand, it is recognized that regulation of manpower by the company falls within the so-called
management prerogatives, which prescriptions encompass the matter of hiring, supervision of workers, work
assignments, working methods and assignments, as well as regulations on the transfer of employees, lay-off of workers,
and the discipline, dismissal, and recall of employees. 19 As put in a case, an employer is free to regulate, according to
his discretion and best business judgment, all aspects of employment, "from hiring to firing," except in cases of unlawful
discrimination or those which may be provided by law. 20

In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman
worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women
workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed
private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the
company were dissolved principally because of the company's policy that married women are not qualified for
employment in PT&T, and not merely because of her supposed acts of dishonesty.

That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the
branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that the
company is not accepting married women employee (sic), as it was verbally instructed to you." 21 Again, in the
termination notice sent to her by the same branch supervisor, private respondent was made to understand that her
severance from the service was not only by reason of her concealment of her married status but, over and on top of
that, was her violation of the company' s policy against marriage ("and even told you that married women employees
are not applicable [sic] or accepted in our company.") 22 Parenthetically, this seems to be the curious reason why it was
made to appear in the initiatory pleadings that petitioner was represented in this case only by its said supervisor and not
by its highest ranking officers who would otherwise be solidarily liable with the corporation. 23

Verily, private respondent's act of concealing the true nature of her status from PT&T could not be properly
characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to retain a
permanent job in a stable company. In other words, she was practically forced by that very same illegal company policy
into misrepresenting her civil status for fear of being disqualified from work. While loss of confidence is a just cause for
termination of employment, it should not be simulated. 24 It must rest on an actual breach of duty committed by the
employee and not on the employer's caprices. 25 Furthermore, it should never be used as a subterfuge for causes which
are improper, illegal, or unjustified. 26 LLphil

In the present controversy, petitioner's expostulations that it dismissed private respondent, not because the
latter got married but because she concealed that fact, does have a hollow ring. Her concealment, so it is claimed,
bespeaks dishonesty hence the consequent loss of confidence in her which justified her dismissal. Petitioner would
asseverate, therefore, that while it has nothing against marriage, it nonetheless takes umbrage over the concealment of
that fact. This improbable reasoning, with interstitial distinctions, perturbs the Court since private respondent may well
be minded to claim that the imputation of dishonesty should be the other way around.

Petitioner would have the Court believe that although private respondent defied its policy against its female
employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits as
unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial matter to
which it supposedly has no objection. In other words, PT&T says it gives its blessings to its female employees contracting
marriage, despite the maternity leaves and other benefits it would consequently respond for and which obviously it
would have wanted to avoid. If that employee confesses such fact of marriage, there will be no sanction; but if such
employee conceals the same instead of proceeding to the confessional, she will be dismissed. This line of reasoning does
not impress us as reflecting its true management policy or that we are being regaled with responsible advocacy.

This Court should be spared the ennui of strained reasoning and the tedium of propositions which confuse
through less than candid arguments. Indeed, petitioner glosses over the fact that it was its unlawful policy against
married women, both on the aspects of qualification and retention, which compelled private respondent to conceal her
supervenient marriage. It was, however, that very policy alone which was the cause of private respondent's secretive
conduct now complained of. It is then apropos to recall the familiar saying that he who is the cause of the cause is the
cause of the evil caused.

Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly
misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat insincere and
self-serving. Concededly, private respondent admitted in the course of the proceedings that she failed to remit some of
her collections, but that is an altogether different story. The fact is that she was dismissed solely because of her
concealment of her marital status, and not on the basis of that supposed defalcation of company funds. That the labor
arbiter would thus consider petitioner's submissions on this supposed dishonesty as a mere afterthought, just to bolster
its case for dismissal, is a perceptive conclusion born of experience in labor cases. For, there was no showing that private
respondent deliberately misappropriated the amount or whether her failure to remit the same was through negligence
and, if so, whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent
execute a promissory note to refund the same, which she did, and the matter was deemed settled as a peripheral issue
in the labor case.

Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was
served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as she
was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just when her
probationary period was winding down clearly raises the plausible conclusion that it was done in order to prevent her
from earning security of tenure. 27 On the other hand, her earlier stints with the company as reliever were undoubtedly
those of a regular employee, even if the same were for fixed periods, as she performed activities which were essential or
necessary in the usual trade and business of PT&T. 28 The primary standard of determining regular employment is the
reasonable connection between the activity performed by the employee in relation to the business or trade of the
employer. 29

As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she
is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of
allowances and other benefits or their monetary equivalent. 30 However, as she had undeniably committed an act of
dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the three-
month suspension imposed by respondent NLRC must be upheld to obviate the impression or inference that such act
should be condoned. It would be unfair to the employer if she were to return to its fold without any sanction
whatsoever for her act which was not totally justified. Thus, her entitlement to back wages, which shall be computed
from the time her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting
therefrom the amount corresponding to her three months suspension.

4. The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT&T.
The Labor Code states, in no uncertain terms, as follows:

"ART. 136. Stipulation against marriage.— It shall be unlawful for an employer to require as a
condition of employment or continuation of employment that a woman shall not get married, or to
stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned
or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee
merely by reason of marriage."

This provision had a studied history for its origin can be traced to Section 8 of Presidential Decree No. 148, 31
better known as the "Women and Child Labor Law," which amended paragraph (c), Section 12 of Republic Act No. 679,
32 entitled "An Act to Regulate the Employment of Women and Children, to Provide Penalties for Violations Thereof,
and for Other Purposes." The forerunner to Republic Act No. 679, on the other hand, was Act No. 3071 which became
law on March 16, 1923 and which regulated the employment of women and children in shops, factories, industrial,
agricultural, and mercantile establishments and other places of labor in the then Philippine Islands.

It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et al. vs. Philippine Air
Lines, 33 a decision that emanated from the Office of the President. There, a policy of Philippine Air Lines requiring that
prospective flight attendants must be single and that they will be automatically separated from the service once they
marry was declared void, it being violative of the clear mandate in Article 136 of the Labor Code with regard to
discrimination against married women. Thus:

"Of first impression is the incompatibility of the respondent's policy or regulation with the
codal provision of law. Respondent is resolute in its contention that Article 136 of the Labor Code
applies only to women employed in ordinary occupations and that the prohibition against marriage of
women engaged in extraordinary occupations, like flight attendants, is fair and reasonable,
considering the peculiarities of their chosen profession.

We cannot subscribe to the line of reasoning pursued by respondent. All along, it knew that
the controverted policy has already met its doom as early as March 13, 1973 when Presidential Decree
No. 148, otherwise known as the Women and Child Labor Law, was promulgated. But for the timidity
of those affected or their labor unions in challenging the validity of the policy, the same was able to
obtain a momentary reprieve. A close look at Section 8 of said decree, which amended paragraph (c)
of Section 12 of Republic Act No. 679, reveals that it is exactly the same provision reproduced
verbatim in Article 136 of the Labor Code,which was promulgated on May 1, 1974 to take effect six (6)
months later, or on November 1, 1974.

It cannot be gainsaid that, with the reiteration of the same provision in the new Labor Code,
all policies and acts against it are deemed illegal and therefore abrogated. True, Article 132 enjoins the
Secretary of Labor to establish standards that will ensure the safety and health of women employees
and in appropriate cases shall by regulation require employers to determine appropriate minimum
standards for termination in special occupations, such as those of flight attendants, but that is
precisely the factor that militates against the policy of respondent. The standards have not yet been
established as set forth in the first paragraph, nor has the Secretary of Labor issued any regulation
affecting flight attendants.

It is logical to presume that, in the absence of said standards or regulations which are as yet to
be established, the policy of respondent against marriage is patently illegal. This finds support in
Section 9 of the New Constitution, which provides:

"Sec. 9. The State shall afford protection to labor, promote full employment and
equality in employment, ensure equal work opportunities regardless of sex, race, or creed,
and regulate the relations between workers and employees. The State shall assure the rights
of workers to self-organization, collective bargaining, security of tenure, and just and humane
conditions of work ..."

Moreover, we cannot agree to the respondent's proposition that termination from

employment of flight attendants on account of marriage is a fair and reasonable standard designed for
their own health, safety, protection and welfare, as no basis has been laid therefor. Actually,
respondent claims that its concern is not so much against the continued employment of the flight
attendant merely by reason of marriage as observed by the Secretary of Labor, but rather on the
consequence of marriage-pregnancy. Respondent discussed at length in the instant appeal the
supposed ill effects of pregnancy on flight attendants in the course of their employment. We feel that
this needs no further discussion as it had been adequately explained by the Secretary of Labor in his
decision of May 2, 1976. cdll

In a vain attempt to give meaning to its position, respondent went as far as invoking the
provisions of Articles 52 and 216 of the New Civil Code on the preservation of marriage as an
inviolable social institution and the family as a basic social institution, respectively, as bases for its
policy of non-marriage. In both instances, respondent predicates absence of a flight attendant from
her home for long periods of time as contributory to an unhappy married life. This is pure conjecture
not based on actual conditions, considering that, in this modern world, sophisticated technology has
narrowed the distance from one place to another. Moreover, respondent overlooked the fact that
married flight attendants can program their lives to adapt to prevailing circumstances and events.
 Article 136 is not intended to apply only to women employed in ordinary occupations, or it
should have categorically expressed so. The sweeping intendment of the law, be it on special or
ordinary occupations, is reflected in the whole text and supported by Article 135 that speaks of non-
discrimination on the employment of women.

The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining & Industrial Corporation 34
considered as void a policy of the same nature. In said case, respondent, in dismissing from the service the complainant,
invoked a policy of the firm to consider female employees in the project it was undertaking as separated the moment
they get married due to lack of facilities for married women. Respondent further claimed that complainant was
employed in the project with an oral understanding that her services would be terminated when she gets married.
Branding the policy of the employer as an example of "discriminatory chauvinism tantamount to denying equal
employment opportunities to women simply on account of their sex, the appellate court struck down said employer
policy as unlawful in view of its repugnance to the Civil Code, Presidential Decree No. 148 and the Constitution.

Under American jurisprudence, job requirements which establish employer preference or conditions relating to
the marital status of an employee are categorized as a "sex-plus" discrimination where it is imposed on one sex and not
on the other. Further, the same should be evenly applied and must not inflict adverse effects on a racial or sexual group
which is protected by federal job discrimination laws. Employment rules that forbid or restrict the employment of
married women, but do not apply to married men, have been held to violate Title VII of the United States Civil Rights Act
of 1964, the main federal statute prohibiting job discrimination against employees and applicants on the basis of, among
other things, sex. 35

Further, it is not relevant that the rule is not directed against all women but just against married women. And,
where the employer discriminates against married women, but not against married men, the variable is sex and the
discrimination is unlawful. 36 Upon the other hand, a requirement that a woman employee must remain unmarried
could be justified as a "bona fide occupational qualification," or BFOQ, where the particular requirements of the job
would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the
workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for
satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight attendants,
was regarded as unlawful since the restriction was not related to the job performance of the flight attendants. 37

5. Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a
woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise
assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a
privilege that by all accounts inheres in the individual as an intangible and inalienable right. 38 Hence, while it is true
that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient, the
same should not be contrary to law, morals, good customs, public order, or public policy. 39 Carried to its logical
consequences, it may even be said that petitioner's policy against legitimate marital bonds would encourage illicit or
common-law relations and subvert the sacrament of marriage.

Parenthetically, the Civil Code provisions on the contract of labor state that the relations between the parties,
that is, of capital and labor, are not merely contractual, impressed as they are with so much public interest that the
same should yield to the common good. 40 It goes on to intone that neither capital nor labor should visit acts of
oppression against the other, nor impair the interest or convenience of the public. 41 In the final reckoning, the danger
of just such a policy against marriage followed by petitioner PT&T is that it strikes at the very essence, ideals and
purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. 42
That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct
derogatory of the laws of the land is not only in order but imperatively required.

ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone Company is hereby
DISMISSED for lack of merit, with double costs against petitioner. llcd

SO ORDERED

||| (Philippine Telegraph and Telephone Co. v. National Labor Relations Commission, G.R. No. 118978, [May 23, 1997],
338 PHIL 1093-1112)

SECOND DIVISION

[G.R. No. 123737. May 28, 1999.]

 CARLOS G. LIBRES, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, NATIONAL STEEL
CORPORATION, OSMUNDO G. WAGA, JR., ANTOINE D. SEVA, PETER J. LOQUILLANO, SATURNINO P.
MEJORADA and ISIDRO F. HYNSON, JR., respondents.

Armi Jane Roa-Borje for petitioner.

Padilla & Padilla for private respondents.

SYNOPSIS

Petitioner, assistant Manager of National Steel Corporation (NSC), was required by Assistant Vice President
Isidro F. Hynson, Jr. his immediate superior, to submit a written explanation on a complaint filed by Hynson's secretary,
Susan Capiral, who claimed that petitioner on the night of May 1992 touched her hand and shoulder, caressed her nape
and told others that she was the one who hugged and kissed or that she responded to his sexual advances. Petitioner
did not deny Capiral's allegation, but claimed that the one year delay in filing the complaint showed that it was merely
an afterthought. The Management Evaluation Committee of the company, after an internal investigation, found
petitioner guilty of violation of Item 2, Table V of the Plant's Rules and Regulations and opined that the sexual advances
of petitioner were unauthorized acts which damaged Capiral's honor. Petitioner was suspended for 30 days without pay.
Hence, his complaint for illegal suspension and unjust discrimination, claiming denial of due process for failure of the
company to grant his request for personal confrontation. The Labor Arbiter, finding that sexual harassment had indeed
transpired, observed that petitioner should welcome the suspension of 30 days as opposed to termination imposed in
Villarama vs. NLRC and Golden Donuts. This was affirmed on appeal by the NLRC. Undaunted, petitioner resorted to this
recourse questioning the findings of the NLRC and further claiming that his acts of fondling the hand and massaging the
shoulders of Capiral did not fall within the definition and criteria of sexual harassment laid down in Section 3 of RA No.
7877. cdasia

This Court ruled that resort to judicial review of the decisions of the NLRC under Rule 65 of the Rules of Court is
confined only to issues of want or excess of jurisdiction and grave abuse of discretion and does not include an inquiry on
the correctness of the evaluation of evidence, as its findings of fact are generally given finality on appeal.

RA No. 7877 has no retroactive application, hence, it cannot be applied to this case. The Labor Arbiter have to
rely on the MEC report and the common connotation of sexual harassment as it is generally understood by the public in
resolving the case brought before it.

As a managerial employee, petitioner is bound by a more exacting ethics and it is the duty of every employer to
protect its employees from oversexed superiors. The Labor Arbiter was in fact lenient in his application of the law and
jurisprudence for which petitioner, found guilty of sexual harassment, must be grateful and not gripe against. TaCDAH

Fear of retaliation and backlash and social humiliation and embarrassment are sufficient justification for delay in
instituting the complaint for sexual harassment.

Due process does not always require a trial type proceeding and is satisfied where a person is notified of the
charge against him and given an opportunity to explain or defend himself. Petitioner, who was given more than
adequate opportunity to explain his side and air his grievances, cannot now claim denial thereof. Further, personal
confrontation was not necessary as litigants may be heard through pleadings, written explanation, position papers,
memoranda or oral arguments.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; ISSUES LIMITED TO WANT OR EXCESS OF JURISDICTION
OR GRAVE ABUSE OF DISCRETION. — In a litany of cases we have ruled that resort to judicial review of the decisions of
the NLRC under Rule 65 of the Rules of Court is confined only to issues of want or excess of jurisdiction and grave abuse
of discretion on the part of the tribunal rendering them. It does not include an inquiry on the correctness of the
evaluation to evidence, which served as basis for the labor official in determining his conclusion. Findings of fact of
administrative officers are generally given finality. ICDSca

2. ID.; ACTIONS; APPEAL; ISSUES CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL. — Petitioner assails the
failure of the NLRC to strictly apply RA No. 7877 to the instant case. We note however that petitioner never raised the
applicability of the law in his appeal to the NLRC nor in his motion for reconsideration. Issues or arguments must chiefly
be raised before the court or agency concerned so as to allow it to pass upon and correct its mistakes without the
intervention of a higher court. Having failed to indicate his effort along this line, petitioner cannot now belatedly raise its
application in this petition.

3. CIVIL LAW; EFFECT AND APPLICATION OF LAWS; PROSPECTIVITY OF LAWS; RA NO. 7877 WITHOUT
RETROACTIVE APPLICATION; CASE AT BAR. — Republic Act No. 7877 was not yet in effect at the time of the occurrence
of the act complained of. It was still being deliberated upon in Congress when petitioner's case was decided by the Labor
Arbiter. As a rule, laws shall have no retroactive effect unless otherwise provided, or except in a criminal case when their
application will favor the accused. Hence, the Labor Arbiter has to rely on the MEC report and the common connotation
of sexual harassment as it is generally understood by the public. Faced with the same predicament, the NLRC did not
commit any abuse of discretion in affirming the decision of the Labor Arbiter.

4. LABOR AND SOCIAL LEGISLATION; LABOR LAWS; SEXUAL HARASSMENT; VILLARAMA CASE APPLICABLE TO
CASE AT BAR; LENIENT APPLICATION MANIFEST BY MERE SUSPENSION OF MANAGERIAL EMPLOYEE. — Petitioner next
trains his gun on the reliance by the NLRC on Villarama and claims it was erroneous. We rule otherwise and hold that it
was both fitting and appropriate since it singularly addressed the issue of a managerial employee committing sexual
harassment on a subordinate. The disparity in the period of filing the complaints in the two (2) cases did not in any way
reduce this case into insignificance. On the contrary, it even invited the attention of the Court to focus on sexual
harassment as a just and valid cause for termination. Whereas petitioner Libres was only meted a 30-day suspension by
the NLRC, Villarama in the other case was penalized with termination. Public respondent therefore is correct in its
observation that the Labor Arbiter was in fact lenient in his application of the law and jurisprudence for which petitioner
must be grateful and not gripe against.

5. ID.; ID.; EMPLOYMENT; MANAGERIAL EMPLOYMENT; SEXUAL HARASSMENT OR MORAL PERVERSITY,

JUSTIFIABLE GROUND FOR DISMISSAL. — As Mr. Justice Puno elucidated, "As a managerial employee, petitioner is
bound by more exacting work ethics. He failed to live up to his higher standard of responsibility when he succumbed to
his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable
ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its
employees from oversexed superiors."

6. ID.; ID.; ID.; ID.; ID.; DELAY FOR ONE YEAR IN INSTITUTING COMPLAINT, REASONABLE. — Petitioner further
claims that the delay in instituting the complaint shows that it was only an afterthought. We disagree. As pointed out by
the Solicitor General, it could be expected since Libres was Capiral's immediate superior. Fear of retaliation and
backlash, not to forget the social humiliation and embarrassment that victims of this human frailty usually suffer, are all
realities that Capiral had to contend with. Moreover, the delay did not detract from the truth derived from the facts.
Petitioner Libres never questioned the veracity of Capiral's allegations. In fact his narration even corroborated the
latter's assertion in several material points. He only raised issue on the complaint's protracted filing.

7. ID.; ID.; ID.; ID.; ID.; DUE PROCESS REQUIREMENTS SUFFICIENTLY COMPLIED WITH; CASE AT BAR. — On the
question of due process, we find that the requirements thereof were sufficiently complied with. Due process as a
constitutional precept does not always and in all situations require a trial type proceeding. Due process is satisfied when
a person is notified of the charge against him and given an opportunity to explain or defend himself. The essence of due
process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain one's side, or an
opportunity to seek a reconsideration of the action or ruling complained of. It is undeniable that petitioner was given a
Notice of Investigation informing him to submit a written explanation regarding the matter; that he submitted his
written explanation to his superior, Isidro F. Hynson Jr.; that Hynson Jr. further allowed him to air his grievance in a
private session; and that upon release of the suspension order made by the MEC petitioner requested its
reconsideration but was denied. From the foregoing it can be gleaned that petitioner was given more than adequate
opportunity to explain his side and air his grievances.

8. ID.; ID.; ID.; ID.; ID.; PERSONAL CONFRONTATION NOT NECESSARY. — The personal confrontation with the
MEC officers, which he requested, was not necessary. The parties had already exhaustively presented their claims and
defenses in different fora. As stated in Homeowners Savings and Loan Association v. NLRC, litigations may be heard
through pleadings, written explanations, position papers, memoranda or oral arguments. Petitioner has been afforded
all of the above means to air his side. Due process was therefore properly observed. HEDSIc

DECISION

BELLOSILLO, J p:
 This petition for certiorari seeks to annul the decision of public respondent National Labor Relations
Commission (NLRC) sustaining the Labor Arbiter's finding that petitioner was validly suspended by private
respondents, as well as the NLRC resolution denying petitioner's motion to reconsider its decision. LLphil

Petitioner Carlos G. Libres, an electrical engineer, was holding a managerial position with National Steel
Corporation (NSC) as Assistant Manager. On 3 August 1993 he received a Notice of Investigation from Assistant Vice
President Isidro F. Hynson Jr., his immediate superior, requesting him to submit a written explanation relative to the
charge of sexual harassment made by Susan D. Capiral, Hynson's secretary, allegedly committed by Libres sometime
in May 1992, and subsequently to answer clarificatory questions on the matter. The notice also warned him that
failure to file his written explanation would be construed as a waiver of his right to be heard. On 14 August 1993
petitioner submitted his written explanation denying the accusation against him and offering to submit himself for
clarificatory interrogation.
Subsequently, Hynson Jr. conducted an internal investigation to which Libres and Capiral were invited to
ventilate their respective sides of the issue. They readily responded. Thereafter, Hynson Jr. submitted his report to
the Management Evaluation Committee (MEC).
The MEC, after deliberation, concluded that the charges against petitioner constituted a violation of Item 2,
Table V, of the Plant's Rules and Regulations. 1 It opined that "touching a female subordinate's hand and shoulder,
caressing her nape and telling other people that Capiral was the one who hugged and kissed or that she responded
to the sexual advances are unauthorized acts that damaged her honor." 2 Referring to the Manual of the Philippine
Daily Inquirer in defining sexual harassment, 3 the MEC finally concluded that petitioner's acts clearly constituted
sexual harassment as charged and recommended petitioner's suspension for thirty (30) days without pay.
On 5 January 1994 petitioner wrote Melchor Q. Villamor, Vice President for Manufacturing, requesting
reconsideration of his suspension, but the same was denied. On 12 February 1994 the suspension order was finally
implemented.
Seeking to reverse his misfortune, Libres filed a complaint for illegal suspension and unjust discrimination
against respondent NSC and its officers, private respondents herein, before the Labor Arbiter. Citing the failure of
the MEC to grant him audience despite his offer to answer clarificatory questions, petitioner claimed denial of due
process. Labor Arbiter Nicodemus G. Palangan however ruled that due process was properly observed and that
there was a positive finding of sexual harassment to justify petitioner's suspension. He pointed out that there was
no substantial inconsistency between the narration of complainant Capiral and petitioner regarding the incident in
the evening of May 1992. The Labor Arbiter found that aside from a few facts which were controverted by Capiral in
her complaint-affidavit, petitioner's admissions approximated the truth; consequently, he ruled that the MEC was
correct in concluding that sexual harassment had indeed transpired. The Labor Arbiter observed that petitioner
should welcome that his penalty was only for suspension of thirty (30) days as opposed to termination imposed in
Villarama v. NLRC and Golden Donuts. 4
In this recourse petitioner maintains that public respondent grievously erred amounting to lack or excess of
jurisdiction in finding that he committed sexual harassment justifying his suspension, and in concluding that he was
afforded due process.
Petitioner argues that the issue of sexual harassment was not adequately considered as he noted that the
finding of the NLRC was made without proper basis in fact and in law. He maintains that the NLRC merely adopted
the conclusions of the Labor Arbiter which in turn were simply derived from the report of the MEC. Petitioner
primarily disputes the failure of the NLRC to apply RA No. 7877, "An Act Declaring Sexual Harassment Unlawful in
the Employment, Education or Training Environment and for Other Purposes," in determining whether he actually
committed sexual harassment. He asserts that his acts did not fall within the definition and criteria of sexual
harassment as laid down in Sec. 3 of the law. 5 Specifically, he cites public respondent's failure to show that his acts
of fondling the hand and massaging the shoulders of Capiral "discriminated against her continued employment,"
"impaired her rights and privileges under the Labor Code," or "created a hostile, intimidating or offensive
environment." 6
Petitioner also contends that public respondent's reliance on Villarama v. NLRC and Golden Donuts 7 was
misplaced. He draws attention to victim Divina Gonzaga's immediate filing of her letter of resignation in the
Villarama case as opposed to the one-year delay of Capiral in filing her complaint against him. He now surmises that
the filing of the case against him was merely an afterthought and not borne out of a valid complaint, hence, the
Villarama case should have no bearing on the instant case.
As regards his assertion that he was not afforded due process, petitioner would point to his demand for
personal confrontation which was brushed aside by the MEC. He argues strongly that in rejecting his plea, the MEC
clearly denied him an opportunity to be heard and present his side. LLpr
The issues raised in this petition require this Court to delve into the findings of fact by the public
respondent. We have ruled in a litany of cases that resort to judicial review of the decisions of the NLRC under Rule
65 of the Rules of Court is confined only to issues of want or excess of jurisdiction and grave abuse of discretion on
the part of the tribunal rendering them. It does not include an inquiry on the correctness of the evaluation of
 evidence, which served as basis for the labor official in determining his conclusion. Findings of fact of administrative
officers are generally given finality. 8 Nonetheless, the Court shall discuss the matter if only to emphasize that the
contentions of petitioner are definitely without merit.
Petitioner assails the failure of the NLRC to strictly apply RA No. 7877 to the instant case. We note however,
that petitioner never raised the applicability of the law in his appeal to the NLRC nor in his motion for
reconsideration. Issues or arguments must chiefly be raised before the court or agency concerned so as to allow it to
pass upon and correct its mistakes without the intervention of a higher court. Having failed to indicate his effort
along this line, petitioner cannot now belatedly raise its application in this petition.
Republic Act No. 7877 was not yet in effect at the time of the occurrence of the act complained of. It was
still being deliberated upon in Congress when petitioner's case was decided by the Labor Arbiter. As a rule, laws shall
have no retroactive effect unless otherwise provided, or except in a criminal case when their application will favor
the accused. 9 Hence, the Labor Arbiter have to rely on the MEC report and the common connotation of sexual
harassment as it is generally understood by the public. Faced with the same predicament, the NLRC had to agree
with the Labor Arbiter. In so doing, the NLRC did not commit any abuse of discretion in affirming the decision of the
Labor Arbiter.
Petitioner next trains his gun on the reliance by the NLRC on Villarama and claims it was erroneous. We rule
otherwise and hold that it was both fitting and appropriate since it singularly addressed the issue of a managerial
employee committing sexual harassment on a subordinate. The disparity in the periods of filing the complaints in
the two (2) cases did not in any way reduce this case into insignificance. On the contrary, it even invited the
attention of the Court to focus on sexual harassment as a just and valid cause for termination. Whereas petitioner
Libres was only meted a 30-day suspension by the NLRC, Villarama, in the other case was penalized with
termination. As Mr. Justice Puno elucidated, "As a managerial employee, petitioner is bound by more exacting work
ethics. He failed to live up to his higher standard of responsibility when he succumbed to his moral perversity. And
when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal
for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from
oversexed superiors." 10 Public respondent therefore is correct in its observation that the Labor Arbiter was in fact
lenient in his application of the law and jurisprudence for which petitioner must be grateful and not gripe against.
Petitioner further claims that the delay in instituting the complaint shows that it was only an afterthought.
We disagree. As pointed out by the Solicitor General, it could be expected since Libres was Capiral's immediate
superior. Fear of retaliation and backlash, not to forget the social humiliation and embarrassment that victims of this
human frailty usually suffer, are all realities that Capiral had to contend with. Moreover, the delay did not detract
from the truth derived from the facts. Petitioner Libres never questioned the veracity of Capiral's allegations. In fact
his narration even corroborated the latter's assertion in several material points. He only raised issue on the
complaint's protracted filing.
On the question of due process, we find that the requirements thereof were sufficiently complied with. Due
process as a constitutional precept does not always and in all situations require a trial type proceeding. Due process
is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend
himself. The essence of due process is simply to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of.
11 It is undeniable that petitioner was given a Notice of Investigation informing him of the charge of sexual
harassment as well as advising him to submit a written explanation regarding the matter; that he submitted his
written explanation to his superior, Isidro F. Hynson Jr.; that Hynson Jr. further allowed him to air his grievance in a
private session; and, that upon release of the suspension order made by the MEC petitioner requested its
reconsideration but was denied. From the foregoing it can be gleaned that petitioner was given more than adequate
opportunity to explain his side and air his grievances.

The personal confrontation with the MEC officers, which he requested, was not necessary. The parties had
already exhaustively presented their claims and defenses in different fora. As stated in Homeowners Savings and
Loan Association v. NLRC, litigants may be heard through pleadings, written explanations, position papers,
memoranda or oral arguments. 12 Petitioner has been afforded all of the above means to air his side. Due process
was therefore properly observed.
WHEREFORE, the petition is DISMISSED, no grave abuse of discretion having been committed by public
respondent National Labor Relations Commission in upholding the suspension of petitioner Carlos G. Libres as
justified and in accordance with due process. Consequently, its decision of 28 August 1995 as well as its resolution of
31 October 1995 is AFFIRMED. LexLib
SO ORDERED
||| (Libres v. National Labor Relations Commission, G.R. No. 123737, [May 28, 1999], 367 PHIL 180-191)
 SECOND DIVISION

[G.R. No. 162994. September 17, 2004.]

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners, vs. GLAXO

WELLCOME PHILIPPINES, INC., respondent.

RESOLUTION

TINGA, J p:

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the validity of
the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor
company.

This is a Petition for Review on Certiorari assailing the Decision 1 dated May 19, 2003 and the Resolution dated
March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434. 2

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as
medical representative on October 24, 1995, after Tecson had undergone training and orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study
and abide by existing company rules; to disclose to management any existing or future relationship by consanguinity or
affinity with co-employees or employees of competing drug companies and should management find that such
relationship poses a possible conflict of interest, to resign from the company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management
of any existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug
companies. If management perceives a conflict of interest or a potential conflict between such relationship and the
employee’s employment with the company, the management and the employee will explore the possibility of a
“transfer to another department in a non-counterchecking position” or preparation for employment outside the
company after six months.

Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte sales area.
SHADcT

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra Pharmaceuticals 3
(Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She supervised the district managers and
medical representatives of her company and prepared marketing strategies for Astra in that area.

Even before they got married, Tecson received several reminders from his District Manager regarding the
conflict of interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in
September 1998.

In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict of interest.
Tecson’s superiors reminded him that he and Bettsy should decide which one of them would resign from their jobs,
although they told him that they wanted to retain him as much as possible because he was performing his job well.

Tecson requested for time to comply with the company policy against entering into a relationship with an
employee of a competitor company. He explained that Astra, Bettsy’s employer, was planning to merge with Zeneca,
another drug company; and Bettsy was planning to avail of the redundancy package to be offered by Astra. With
Bettsy’s separation from her company, the potential conflict of interest would be eliminated. At the same time, they
would be able to avail of the attractive redundancy package from Astra.

In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson applied
for a transfer in Glaxo’s milk division, thinking that since Astra did not have a milk division, the potential conflict of
interest would be eliminated. His application was denied in view of Glaxo’s “least-movement-possible” policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area. Tecson
asked Glaxo to reconsider its decision, but his request was denied.
 Tecson sought Glaxo’s reconsideration regarding his transfer and brought the matter to Glaxo’s Grievance
Committee. Glaxo, however, remained firm in its decision and gave Tecson until February 7, 2000 to comply with the
transfer order. Tecson defied the transfer order and continued acting as medical representative in the Camarines Sur-
Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued samples of
products which were competing with similar products manufactured by Astra. He was also not included in product
conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted the matter for
voluntary arbitration. Glaxo offered Tecson a separation pay of one-half (½) month pay for every year of service, or a
total of P50,000.00 but he declined the offer. On November 15, 2000, the National Conciliation and Mediation Board
(NCMB) rendered its Decision declaring as valid Glaxo’s policy on relationships between its employees and persons
employed with competitor companies, and affirming Glaxo’s right to transfer Tecson to another sales territory.

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision. EHSTcC

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the ground
that the NCMB did not err in rendering its Decision. The appellate court held that Glaxo’s policy prohibiting its
employees from having personal relationships with employees of competitor companies is a valid exercise of its
management prerogatives. 4

Tecson filed a Motion for Reconsideration of the appellate court’s Decision, but the motion was denied by the
appellate court in its Resolution dated March 26, 2004. 5

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the NCMB’s
finding that the Glaxo’s policy prohibiting its employees from marrying an employee of a competitor company is valid;
and (ii) the Court of Appeals also erred in not finding that Tecson was constructively dismissed when he was transferred
to a new sales territory, and deprived of the opportunity to attend products seminars and training sessions. 6

Petitioners contend that Glaxo’s policy against employees marrying employees of competitor companies
violates the equal protection clause of the Constitution because it creates invalid distinctions among employees on
account only of marriage. They claim that the policy restricts the employees’ right to marry. 7

They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1) he was
transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he suffered
a diminution in pay, (3) he was excluded from attending seminars and training sessions for medical representatives, and
(4) he was prohibited from promoting respondent’s products which were competing with Astra’s products. 8

In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from having a
relationship with and/or marrying an employee of a competitor company is a valid exercise of its management
prerogatives and does not violate the equal protection clause; and that Tecson’s reassignment from the Camarines
Norte-Camarines Sur sales area to the Butuan City-Surigao City and Agusan del Sur sales area does not amount to
constructive dismissal. 9

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a genuine
interest in ensuring that its employees avoid any activity, relationship or interest that may conflict with their
responsibilities to the company. Thus, it expects its employees to avoid having personal or family interests in any
competitor company which may influence their actions and decisions and consequently deprive Glaxo of legitimate
profits. The policy is also aimed at preventing a competitor company from gaining access to its secrets, procedures and
policies. 10

It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future
relationships with employees of competitor companies, and is therefore not violative of the equal protection clause. It
maintains that considering the nature of its business, the prohibition is based on valid grounds. 11

According to Glaxo, Tecson’s marriage to Bettsy, an employee of Astra, posed a real and potential conflict of
interest. Astra’s products were in direct competition with 67% of the products sold by Glaxo. Hence, Glaxo’s
enforcement of the foregoing policy in Tecson’s case was a valid exercise of its management prerogatives. 12 In any
case, Tecson was given several months to remedy the situation, and was even encouraged not to resign but to ask his
wife to resign from Astra instead. 13
 Glaxo also points out that Tecson can no longer question the assailed company policy because when he signed
his contract of employment, he was aware that such policy was stipulated therein. In said contract, he also agreed to
resign from respondent if the management finds that his relationship with an employee of a competitor company would
be detrimental to the interests of Glaxo. 14

Glaxo likewise insists that Tecson’s reassignment to another sales area and his exclusion from seminars
regarding respondent’s new products did not amount to constructive dismissal.

It claims that in view of Tecson’s refusal to resign, he was relocated from the Camarines Sur-Camarines Norte
sales area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in effecting the reassignment,
it also considered the welfare of Tecson’s family. Since Tecson’s hometown was in Agusan del Sur and his wife traces her
roots to Butuan City, Glaxo assumed that his transfer from the Bicol region to the Butuan City sales area would be
favorable to him and his family as he would be relocating to a familiar territory and minimizing his travel expenses. 15

In addition, Glaxo avers that Tecson’s exclusion from the seminar concerning the new anti-asthma drug was due
to the fact that said product was in direct competition with a drug which was soon to be sold by Astra, and hence, would
pose a potential conflict of interest for him. Lastly, the delay in Tecson’s receipt of his sales paraphernalia was due to the
mix-up created by his refusal to transfer to the Butuan City sales area (his paraphernalia was delivered to his new sales
area instead of Naga City because the supplier thought he already transferred to Butuan). 16

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that Glaxo’s
policy against its employees marrying employees from competitor companies is valid, and in not holding that said policy
violates the equal protection clause of the Constitution; (2) Whether Tecson was constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners provides: ScaEIT

xxx xxx xxx

10. You agree to disclose to management any existing or future relationship you may have,
either by consanguinity or affinity with co-employees or employees of competing drug companies.
Should it pose a possible conflict of interest in management discretion, you agree to resign voluntarily
from the Company as a matter of Company policy.

xxx xxx xxx 17

The same contract also stipulates that Tecson agrees to abide by the existing company rules of Glaxo, and to
study and become acquainted with such policies. 18 In this regard, the Employee Handbook of Glaxo expressly informs
its employees of its rules regarding conflict of interest:

1. Conflict of Interest

Employees should avoid any activity, investment relationship, or interest that may run counter
to the responsibilities which they owe Glaxo Wellcome.

Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor

supplier or other businesses which may consciously or unconsciously influence their
actions or decisions and thus deprive Glaxo Wellcome of legitimate profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to
advance their outside personal interests, that of their relatives, friends and other
businesses.

c. To avoid outside employment or other interests for income which would impair their
effective job performance.

d. To consult with Management on such activities or relationships that may lead to conflict of
interest.
 1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-
employees of competing drug companies are expected to disclose such relationship to the
Management. If management perceives a conflict or potential conflict of interest, every effort shall be
made, together by management and the employee, to arrive at a solution within six (6) months, either
by transfer to another department in a non-counter checking position, or by career preparation
toward outside employment after Glaxo Wellcome. Employees must be prepared for possible
resignation within six (6) months, if no other solution is feasible. 19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy prohibiting an
employee from having a relationship with an employee of a competitor company is a valid exercise of management
prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential
programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive
pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s
employees is reasonable under the circumstances because relationships of that nature might compromise the interests
of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the
possibility that a competitor company will gain access to its secrets and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on
investments and to expansion and growth. 20 Indeed, while our laws endeavor to give life to the constitutional policy on
social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the
workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in the
interest of fair play. 21

As held in a Georgia, U.S.A case, 22 it is a legitimate business practice to guard business confidentiality and
protect a competitive position by even-handedly disqualifying from jobs male and female applicants or employees who
are married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was
married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964. 23 The Court
pointed out that the policy was applied to men and women equally, and noted that the employer’s business was highly
competitive and that gaining inside information would constitute a competitive advantage.

The challenged company policy does not violate the equal protection clause of the Constitution as petitioners
erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only to the
state or those acting under color of its authority. 24 Corollarily, it has been held in a long array of U.S. Supreme Court
decisions that the equal protection clause erects no shield against merely private conduct, however, discriminatory or
wrongful. 25 The only exception occurs when the state 26 in any of its manifestations or actions has been found to have
become entwined or involved in the wrongful private conduct. 27 Obviously, however, the exception is not present in
this case. Significantly, the company actually enforced the policy after repeated requests to the employee to comply
with the policy. Indeed, the application of the policy was made in an impartial and even-handed manner, with due
regard for the lot of the employee. ITDHSE

In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear
that Glaxo does not impose an absolute prohibition against relationships between its employees and those of
competitor companies. Its employees are free to cultivate relationships with and marry persons of their own choosing.
What the company merely seeks to avoid is a conflict of interest between the employee and the company that may arise
out of such relationships. As succinctly explained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company
remains free to marry anyone of his or her choosing. The policy is not aimed at restricting a personal
prerogative that belongs only to the individual. However, an employee’s personal decision does not
detract the employer from exercising management prerogatives to ensure maximum profit and
business success . . . 28

The Court of Appeals also correctly noted that the assailed company policy which forms part of respondent’s
Employee Code of Conduct and of its contracts with its employees, such as that signed by Tecson, was made known to
him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his employment contract
and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily entered into a contract of
employment with Glaxo, the stipulations therein have the force of law between them and, thus, should be complied
with in good faith.” 29 He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners’ contention that Tecson was constructively dismissed when he was
transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur sales
area, and when he was excluded from attending the company’s seminar on new products which were directly
competing with similar products manufactured by Astra. Constructive dismissal is defined as a quitting, an involuntary
resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a
demotion in rank or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes
unbearable to the employee. 30 None of these conditions are present in the instant case. The record does not show that
Tecson was demoted or unduly discriminated upon by reason of such transfer. As found by the appellate court, Glaxo
properly exercised its management prerogative in reassigning Tecson to the Butuan City sales area:

. . . In this case, petitioner’s transfer to another place of assignment was merely in keeping
with the policy of the company in avoidance of conflict of interest, and thus valid . . . Note that
[Tecson’s] wife holds a sensitive supervisory position as Branch Coordinator in her employer-company
which requires her to work in close coordination with District Managers and Medical Representatives.
Her duties include monitoring sales of Astra products, conducting sales drives, establishing and
furthering relationship with customers, collection, monitoring and managing Astra’s inventory . . . she
therefore takes an active participation in the market war characterized as it is by stiff competition
among pharmaceutical companies. Moreover, and this is significant, petitioner’s sales territory covers
Camarines Sur and Camarines Norte while his wife is supervising a branch of her employer in Albay.
The proximity of their areas of responsibility, all in the same Bicol Region, renders the conflict of
interest not only possible, but actual, as learning by one spouse of the other’s market strategies in the
region would be inevitable. [Management’s] appreciation of a conflict of interest is therefore not
merely illusory and wanting in factual basis . . . 31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission, 32 which involved a complaint filed
by a medical representative against his employer drug company for illegal dismissal for allegedly terminating his
employment when he refused to accept his reassignment to a new area, the Court upheld the right of the drug company
to transfer or reassign its employee in accordance with its operational demands and requirements. The ruling of the
Court therein, quoted hereunder, also finds application in the instant case: STaCcA

By the very nature of his employment, a drug salesman or medical representative is expected
to travel. He should anticipate reassignment according to the demands of their business. It would be a
poor drug corporation which cannot even assign its representatives or detail men to new markets
calling for opening or expansion or to areas where the need for pushing its products is great. More so
if such reassignments are part of the employment contract. 33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a long
period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate the conflict of
interest brought about by his relationship with Bettsy. When their relationship was still in its initial stage, Tecson’s
supervisors at Glaxo constantly reminded him about its effects on his employment with the company and on the
company’s interests. After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either resigning from
the company or asking his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its employ
because of his satisfactory performance and suggested that he ask Bettsy to resign from her company instead. Glaxo
likewise acceded to his repeated requests for more time to resolve the conflict of interest. When the problem could not
be resolved after several years of waiting, Glaxo was constrained to reassign Tecson to a sales area different from that
handled by his wife for Astra. Notably, the Court did not terminate Tecson from employment but only reassigned him to
another area where his home province, Agusan del Sur, was included. In effecting Tecson’s transfer, Glaxo even
considered the welfare of Tecson’s family. Clearly, the foregoing dispels any suspicion of unfairness and bad faith on the
part of Glaxo. 34

WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.

SO ORDERED

||| (Duncan Association of Detailman-PTGWO v. Glaxo Wellcome Philippines, Inc., G.R. No. 162994 (Resolution),
[September 17, 2004], 481 PHIL 687-705)
 SECOND DIVISION

[G.R. No. 164774. April 12, 2006.]

STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, petitioners,vs.RONALDO D.

SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA, respondents.

DECISION

PUNO, J p:

We are called to decide an issue of first impression: whether the policy of the employer banning spouses from
working in the same company violates the rights of the employee under the Constitution and the Labor Code or is a valid
exercise of management prerogative.

At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3, 2004 in CA-
G.R. SP No. 73477 reversing the decision of the National Labor Relations Commission (NLRC) which affirmed the ruling of
the Labor Arbiter.

Petitioner Star Paper Corporation (the company) is a corporation engaged in trading — principally of paper
products. Josephine Ongsitco is its Manager of the Personnel and Administration Department while Sebastian Chua is its
Managing Director.

The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol), Wilfreda N. Comia (Comia)
and Lorna E. Estrella (Estrella) were all regular employees of the company. 1

Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee of the
company, whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the couple that should they
decide to get married, one of them should resign pursuant to a company policy promulgated in 1995, 2 viz.:

1. New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the]
3rd degree of relationship, already employed by the company.

2. In case of two of our employees (both singles [sic],one male and another female) developed
a friendly relationship during the course of their employment and then decided to get married, one of
them should resign to preserve the policy stated above. 3

Simbol resigned on June 20, 1998 pursuant to the company policy. 4

Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-employee, whom she
married on June 1, 2000. Ongsitco likewise reminded them that pursuant to company policy, one must resign should
they decide to get married. Comia resigned on June 30, 2000. 5

Estrella was hired on July 29, 1994. She met Luisito Zuñiga (Zuñiga), also a co-worker. Petitioners stated that
Zuñiga, a married man, got Estrella pregnant. The company allegedly could have terminated her services due to
immorality but she opted to resign on December 21, 1999. 6

The respondents each signed a Release and Confirmation Agreement. They stated therein that they have no
money and property accountabilities in the company and that they release the latter of any claim or demand of
whatever nature. 7

Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not resign
voluntarily; they were compelled to resign in view of an illegal company policy. As to respondent Estrella, she alleges
that she had a relationship with co-worker Zuñiga who misrepresented himself as a married but separated man. After he
got her pregnant, she discovered that he was not separated. Thus, she severed her relationship with him to avoid
dismissal due to the company policy. On November 30, 1999, she met an accident and was advised by the doctor at the
Orthopedic Hospital to recuperate for twenty-one (21) days. She returned to work on December 21, 1999 but she found
out that her name was on-hold at the gate. She was denied entry. She was directed to proceed to the personnel office
where one of the staff handed her a memorandum. The memorandum stated that she was being dismissed for immoral
conduct. She refused to sign the memorandum because she was on leave for twenty-one (21) days and has not been
given a chance to explain. The management asked her to write an explanation. However, after submission of the
explanation, she was nonetheless dismissed by the company. Due to her urgent need for money, she later submitted a
letter of resignation in exchange for her thirteenth month pay. 8

Respondents later filed a complaint for unfair labor practice, constructive dismissal, separation pay and
attorney's fees. They averred that the aforementioned company policy is illegal and contravenes Article 136 of the Labor
Code. They also contended that they were dismissed due to their union membership. aESIDH

On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for lack of merit, viz.:

[T]his company policy was decreed pursuant to what the respondent corporation perceived as
management prerogative. This management prerogative is quite broad and encompassing for it covers
hiring, work assignment, working method, time, place and manner of work, tools to be used,
processes to be followed, supervision of workers, working regulations, transfer of employees, work
supervision, lay-off of workers and the discipline, dismissal and recall of workers. Except as provided
for or limited by special law, an employer is free to regulate, according to his own discretion and
judgment all the aspects of employment. 9 (Citations omitted.)

On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on January 11, 2002. 10

Respondents filed a Motion for Reconsideration but was denied by the NLRC in a Resolution 11 dated August 8,
2002. They appealed to respondent court via Petition for Certiorari.

In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC decision, viz.:

WHEREFORE, premises considered, the May 31, 2002 (sic) 12 Decision of the National Labor
Relations Commission is hereby REVERSED and SET ASIDE and a new one is entered as follows:

(1) Declaring illegal, the petitioners' dismissal from employment and ordering private
respondents to reinstate petitioners to their former positions without loss of seniority rights
with full backwages from the time of their dismissal until actual reinstatement; and

(2) Ordering private respondents to pay petitioners attorney's fees amounting to 10%
of the award and the cost of this suit. 13

On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:

1. ...THE SUBJECT 1995 POLICY/REGULATION IS VIOLATIVE OF THE CONSTITUTIONAL RIGHTS

TOWARDS MARRIAGE AND THE FAMILY OF EMPLOYEES AND OF ARTICLE 136 OF THE LABOR CODE;
AND

2. ...RESPONDENTS' RESIGNATIONS WERE FAR FROM VOLUNTARY. 14

We affirm.

The 1987 Constitution 15 states our policy towards the protection of labor under the following provisions, viz.:

Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect
the rights of workers and promote their welfare.

xxx xxx xxx

Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with law.
They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall
also participate in policy and decision-making processes affecting their rights and benefits as may be
provided by law. aIHCSA
 The State shall promote the principle of shared responsibility between workers and
employers, recognizing the right of labor to its just share in the fruits of production and the right of
enterprises to reasonable returns on investments, and to expansion and growth.

The Civil Code likewise protects labor with the following provisions:

Art. 1700. The relation between capital and labor are not merely contractual. They are so
impressed with public interest that labor contracts must yield to the common good. Therefore, such
contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labor and similar subjects.

Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in
favor of the safety and decent living for the laborer.

The Labor Code is the most comprehensive piece of legislation protecting labor. The case at bar involves Article
136 of the Labor Code which provides:

Art. 136. It shall be unlawful for an employer to require as a condition of employment or

continuation of employment that a woman employee shall not get married, or to stipulate expressly
or tacitly that upon getting married a woman employee shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason
of her marriage.

Respondents submit that their dismissal violates the above provision. Petitioners allege that its policy "may appear
to be contrary to Article 136 of the Labor Code" but it assumes a new meaning if read together with the first
paragraph of the rule. The rule does not require the woman employee to resign. The employee spouses have the
right to choose who between them should resign. Further, they are free to marry persons other than co-employees.
Hence, it is not the marital status of the employee, per se, that is being discriminated. It is only intended to carry out
its no-employment-for-relatives-within-the-third-degree-policy which is within the ambit of the prerogatives of
management. 16

It is true that the policy of petitioners prohibiting close relatives from working in the same company takes the
nature of an anti-nepotism employment policy. Companies adopt these policies to prevent the hiring of unqualified
persons based on their status as a relative, rather than upon their ability. 17 These policies focus upon the potential
employment problems arising from the perception of favoritism exhibited towards relatives.

With more women entering the workforce, employers are also enacting employment policies specifically
prohibiting spouses from working for the same company. We note that two types of employment policies involve
spouses: policies banning only spouses from working in the same company (no-spouse employment policies),and those
banning all immediate family members, including spouses, from working in the same company (anti-nepotism
employment policies). 18

Unlike in our jurisdiction where there is no express prohibition on marital discrimination, 19 there are twenty
state statutes 20 in the United States prohibiting marital discrimination. Some state courts 21 have been confronted
with the issue of whether no-spouse policies violate their laws prohibiting both marital status and sex discrimination.

In challenging the anti-nepotism employment policies in the United States, complainants utilize two theories of
employment discrimination: the disparate treatment and the disparate impact.Under the disparate treatment
analysis,the plaintiff must prove that an employment policy is discriminatory on its face. No-spouse employment
policies requiring an employee of a particular sex to either quit, transfer, or be fired are facially discriminatory. For
example, an employment policy prohibiting the employer from hiring wives of male employees, but not husbands of
female employees, is discriminatory on its face. 22

On the other hand, to establish disparate impact, the complainants must prove that a facially neutral policy has
a disproportionate effect on a particular class. For example, although most employment policies do not expressly
indicate which spouse will be required to transfer or leave the company, the policy often disproportionately affects one
sex. 23

The state courts' rulings on the issue depend on their interpretation of the scope of marital status discrimination
within the meaning of their respective civil rights acts. Though they agree that the term "marital status" encompasses
discrimination based on a person's status as either married, single, divorced, or widowed, they are divided on whether
the term has a broader meaning. Thus, their decisions vary. 24

The courts narrowly 25 interpreting marital status to refer only to a person's status as married, single, divorced,
or widowed reason that if the legislature intended a broader definition it would have either chosen different language or
specified its intent. They hold that the relevant inquiry is if one is married rather than to whom one is married. They
construe marital status discrimination to include only whether a person is single, married, divorced, or widowed and not
the "identity, occupation, and place of employment of one's spouse." These courts have upheld the questioned policies
and ruled that they did not violate the marital status discrimination provision of their respective state statutes. ADScCE

The courts that have broadly 26 construed the term "marital status" rule that it encompassed the identity,
occupation and employment of one's spouse. They strike down the no-spouse employment policies based on the broad
legislative intent of the state statute. They reason that the no-spouse employment policy violate the marital status
provision because it arbitrarily discriminates against all spouses of present employees without regard to the actual effect
on the individual's qualifications or work performance. 27 These courts also find the no-spouse employment policy
invalid for failure of the employer to present any evidence of business necessity other than the general perception that
spouses in the same workplace might adversely affect the business. 28 They hold that the absence of such a bona fide
occupational qualification 29 invalidates a rule denying employment to one spouse due to the current employment of
the other spouse in the same office. 30 Thus, they rule that unless the employer can prove that the reasonable demands
of the business require a distinction based on marital status and there is no better available or acceptable policy which
would better accomplish the business purpose, an employer may not discriminate against an employee based on the
identity of the employee's spouse. 31 This is known as the bona fide occupational qualification exception.

We note that since the finding of a bona fide occupational qualification justifies an employer's no-spouse rule,
the exception is interpreted strictly and narrowly by these state courts. There must be a compelling business necessity
for which no alternative exists other than the discriminatory practice. 32 To justify a bona fide occupational qualification,
the employer must prove two factors: (1) that the employment qualification is reasonably related to the essential
operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons
meeting the qualification would be unable to properly perform the duties of the job. 33

The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the standard
of reasonableness of the company policy which is parallel to the bona fide occupational qualification requirement. In the
recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc., 34 we
passed on the validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of
any competitor company. We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing
strategies and other confidential programs and information from competitors. We considered the prohibition against
personal or marital relationships with employees of competitor companies upon Glaxo's employees reasonable under
the circumstances because relationships of that nature might compromise the interests of Glaxo. In laying down the
assailed company policy, we recognized that Glaxo only aims to protect its interests against the possibility that a
competitor company will gain access to its secrets and procedures. 35

The requirement that a company policy must be reasonable under the circumstances to qualify as a valid
exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph and Telephone
Company v. NLRC. 36 In said case, the employee was dismissed in violation of petitioner's policy of disqualifying from
work any woman worker who contracts marriage. We held that the company policy violates the right against
discrimination afforded all women workers under Article 136 of the Labor Code, but established a permissible exception,
viz.:

[A] requirement that a woman employee must remain unmarried could be justified as a "bona
fide occupational qualification," or BFOQ, where the particular requirements of the job would justify
the same, but not on the ground of a general principle, such as the desirability of spreading work in
the workplace. A requirement of that nature would be valid provided it reflects an inherent quality
reasonably necessary for satisfactory job performance. 37 (Emphases supplied.)

The cases of Duncan and PT&T instruct us that the requirement of reasonableness must be clearly established
to uphold the questioned employment policy. The employer has the burden to prove the existence of a reasonable
business necessity. The burden was successfully discharged in Duncan but not in PT&T.

We do not find a reasonable business necessity in the case at bar.

Petitioners' sole contention that "the company did not just want to have two (2) or more of its employees
related between the third degree by affinity and/or consanguinity" 38 is lame. That the second paragraph was meant to
give teeth to the first paragraph of the questioned rule 39 is evidently not the valid reasonable business necessity
required by the law.

It is significant to note that in the case at bar, respondents were hired after they were found fit for the job, but
were asked to resign when they married a co-employee. Petitioners failed to show how the marriage of Simbol, then a
Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section, could be detrimental to its
business operations. Neither did petitioners explain how this detriment will happen in the case of Wilfreda Comia, then
a Production Helper in the Selecting Department, who married Howard Comia, then a helper in the cutter-machine. The
policy is premised on the mere fear that employees married to each other will be less efficient. If we uphold the
questioned rule without valid justification, the employer can create policies based on an unproven presumption of a
perceived danger at the expense of an employee's right to security of tenure.

Petitioners contend that their policy will apply only when one employee marries a co-employee, but they are
free to marry persons other than co-employees. The questioned policy may not facially violate Article 136 of the Labor
Code but it creates a disproportionate effect and under the disparate impact theory, the only way it could pass judicial
scrutiny is a showing that it is reasonable despite the discriminatory, albeit disproportionate, effect. The failure of
petitioners to prove a legitimate business concern in imposing the questioned policy cannot prejudice the employee's
right to be free from arbitrary discrimination based upon stereotypes of married persons working together in one
company. 40

Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit the
petitioners. The protection given to labor in our jurisdiction is vast and extensive that we cannot prudently draw
inferences from the legislature's silence 41 that married persons are not protected under our Constitution and declare
valid a policy based on a prejudice or stereotype. Thus, for failure of petitioners to present undisputed proof of a
reasonable business necessity, we rule that the questioned policy is an invalid exercise of management prerogative.
Corollarily, the issue as to whether respondents Simbol and Comia resigned voluntarily has become moot and academic.
cAaDHT

As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on the singular fact that her
resignation letter was written in her own handwriting. Both ruled that her resignation was voluntary and thus valid. The
respondent court failed to categorically rule whether Estrella voluntarily resigned but ordered that she be reinstated
along with Simbol and Comia.

Estrella claims that she was pressured to submit a resignation letter because she was in dire need of money. We
examined the records of the case and find Estrella's contention to be more in accord with the evidence. While findings
of fact by administrative tribunals like the NLRC are generally given not only respect but, at times, finality, this rule
admits of exceptions, 42 as in the case at bar.

Estrella avers that she went back to work on December 21, 1999 but was dismissed due to her alleged immoral
conduct. At first, she did not want to sign the termination papers but she was forced to tender her resignation letter in
exchange for her thirteenth month pay.

The contention of petitioners that Estrella was pressured to resign because she got impregnated by a married
man and she could not stand being looked upon or talked about as immoral 43 is incredulous. If she really wanted to
avoid embarrassment and humiliation, she would not have gone back to work at all. Nor would she have filed a suit for
illegal dismissal and pleaded for reinstatement. We have held that in voluntary resignation, the employee is compelled
by personal reason(s) to dissociate himself from employment. It is done with the intention of relinquishing an office,
accompanied by the act of abandonment. 44 Thus, it is illogical for Estrella to resign and then file a complaint for illegal
dismissal. Given the lack of sufficient evidence on the part of petitioners that the resignation was voluntary, Estrella's
dismissal is declared illegal.

IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated August 3, 2004 is
AFFIRMED.

SO ORDERED

||| (Star Paper Corp. v. Simbol, G.R. No. 164774, [April 12, 2006], 521 PHIL 364-379)

D. Househelpers
 R.A. 10361, Batas Kasambahay

FIRST DIVISION

[G.R. No. 94951. April 22, 1991.]

APEX MINING COMPANY, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and
SINCLITICA CANDIDO, respondents.

Bernabe B. Alabastro for petitioner.

Angel Fernandez for private respondent.

SYLLABUS

1. LABOR AND SOCIAL LEGISLATION; LABOR CODE; HOUSEHELPER; DEFINED. — The term 'househelper' as used herein is
synonymous to the term `domestic servant' and shall refer to any person, whether male or female, who renders services
in and about the employer's home and which services are usually necessary or desirable for the maintenance and
enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family.

2. ID.; ID.; ID.; PERSONS COVERED. — The foregoing definition clearly contemplates such househelper or domestic
servant who is employed in the employer's home to minister exclusively to the personal comfort and enjoyment of the
employer's family. Such definition covers family drivers, domestic servants, laundry women, yayas, gardeners,
houseboys and other similar househelps.

3. ID.; ID.; ID.; PERSONS WORKING IN STAFFHOUSES OF A COMPANY, BEYOND THE SCOPE. — The definition cannot be
interpreted to include househelp or laundrywoman working in staffhouses of a company, like petitioner who attends to
the needs of the company's guests and other persons availing of said facilities. By the same token, it cannot be
considered to extend to the driver, houseboy, or gardener exclusively working in the company, the staffhouses and its
premises. They may not be considered as within the meaning of a "househelper" or "domestic servant" as above-defined
by law.

4. ID.; ID.; ID.; CRITERIA. — The criteria is the personal comfort and enjoyment of the family of the employer in the home
of said employer. While it may be true that the nature of the work of a househelper, domestic servant or laundrywoman
in a home or in a company staffhouse may be similar in nature, the difference in their circumstances is that in the former
instance they are actually serving the family while in the latter case, whether it is a corporation or a single proprietorship
engaged in business or industry or any other agricultural or similar pursuit, service is being rendered in the staffhouses
or within the premises of the business of the employer. In such instance, they are employees of the company or
employer in the business concerned entitled to the privileges of a regular employee.

5. ID.; ID.; ID.; CONSIDERED A REGULAR EMPLOYEE WHEN WORKING WITHIN THE PREMISES OF THE BUSINESS OF THE
EMPLOYER AND IN RELATION TO OR IN CONNECTION WITH ITS BUSINESS. — The mere fact that the househelper or
domestic servant is working within the premises of the business of the employer and in relation to or in connection with
its business, as in its staffhouses for its guests or even for its officers and employees, warrants the conclusion that such
househelper or domestic servant is and should be considered as a regular employee of the employer and not as a mere
family househelper or domestic servant as contemplated in Rule XIII, Section 1(b), Book 3 of the Labor Code, as
amended.

6. ID.; ID.; ID.; ID.; ENTITLED TO SEPARATION PAY WHEN ILLEGALLY DISMISSED; CASE AT BAR. — Because of an accident
which took place while private respondent was performing her laundry services, she was not able to work and was
ultimately separated from the service. She is, therefore entitled to appropriate relief as a regular employee of petitioner.
Inasmuch as private respondent appears not to be interested in returning to her work for valid reasons, the payment of
separation pay to her is in order.

DECISION
GANCAYCO, J p:

Is the househelper in the staff houses of an industrial company a domestic helper or a regular employee of the said firm?
This is the novel issue raised in this petition.

Private respondent Sinclitica Candido was employed by petitioner Apex Mining Company, Inc. on May 18, 1973 to
perform laundry services at its staff house located at Masara, Maco, Davao del Norte. In the beginning, she was paid on
a piece rate basis. However, on January 17, 1982, she was paid on a monthly basis at P250.00 a month which was
ultimately increased to P575.00 a month.

On December 18, 1987, while she was attending to her assigned task and she was hanging her laundry, she accidentally
slipped and hit her back on a stone. She reported the accident to her immediate supervisor Mila de la Rosa and to the
personnel officer, Florendo D. Asirit. As a result of the accident she was not able to continue with her work. She was
permitted to go on leave for medication. De la Rosa offered her the amount of P2,000.00 which was eventually
increased to P5,000.00 to persuade her to quit her job, but she refused the offer and preferred to return to work.
Petitioner did not allow her to return to work and dismissed her on February 4, 1988.

On March 11, 1988, private respondent filed a request for assistance with the Department of Labor and Employment.
After the parties submitted their position papers as required by the labor arbiter assigned to the case on August 24,
1988 the latter rendered a decision, the dispositive part of which reads as follows:

"WHEREFORE, Conformably With The Foregoing, judgment is hereby rendered ordering the
respondent, Apex Mining Company, Inc., Masara, Davao del Norte, to pay the complainant, to wit:

1. Salary Differential — P16,289.20

2. Emergency Living Allowance — 12,430.00

3. 13th Month Pay Differential — 1,322.32.

4. Separation Pay

(One-month for every year of service [1973-1988]) — 25,119.30or in the total of FIFTY FIVE
THOUSAND ONE HUNDRED SIXTY ONE PESOS AND 42/100 (P55,161.42).

SO ORDERED." 1

Not satisfied therewith, petitioner appealed to the public respondent National Labor Relations Commission (NLRC),
wherein in due course a decision was rendered by the Fifth Division thereof on July 20, 1989 dismissing the appeal for
lack of merit and affirming the appealed decision. A motion for reconsideration thereof was denied in a resolution of the
NLRC dated June 29, 1990.

Hence, the herein petition for review by certiorari, which appropriately should be a special civil action for certiorari, and
which in the interest of justice, is hereby treated as such. 2 The main thrust of the petition is that private respondent
should be treated as a mere househelper or domestic servant and not as a regular employee of petitioner. LLphil

The petition is devoid of merit.

Under Rule XIII, Section 1(b), Book 3 of the Labor Code, as amended, the terms "househelper" or "domestic servant" are
defined as follows:

"The term 'househelper' as used herein is synonymous to the term 'domestic servant' and shall refer
to any person, whether male or female, who renders services in and about the employer's home and
which services are usually necessary or desirable for the maintenance and enjoyment thereof, and
ministers exclusively to the personal comfort and enjoyment of the employer's family." 3

The foregoing definition clearly contemplates such househelper or domestic servant who is employed in the employer's
home to minister exclusively to the personal comfort and enjoyment of the employer's family. Such definition covers
family drivers, domestic servants, laundry women, yayas, gardeners, houseboys and other similar househelps.

The definition cannot be interpreted to include househelp or laundry women working in staffhouses of a company, like
petitioner who attends to the needs of the company's guest and other persons availing of said facilities. By the same
token, it cannot be considered to extend to the driver, houseboy, or gardener exclusively working in the company, the
staffhouses and its premises. They may not be considered as within the meaning of a "househelper" or "domestic
servant" as above-defined by law.

The criteria is the personal comfort and enjoyment of the family of the employer in the home of said employer. While it
may be true that the nature of the work of a househelper, domestic servant or laundrywoman in a home or in a
company staffhouse may be similar in nature, the difference in their circumstances is that in the former instance they
are actually serving the family while in the latter case, whether it is a corporation or a single proprietorship engaged in
business or industry or any other agricultural or similar pursuit, service is being rendered in the staffhouses or within the
premises of the business of the employer. In such instance, they are employees of the company or employer in the
business concerned entitled to the privileges of a regular employee.

Petitioner contends that it is only when the househelper or domestic servant is assigned to certain aspects of the
business of the employer that such househelper or domestic servant may be considered as such an employee. The Court
finds no merit in making any such distinction. The mere fact that the househelper or domestic servant is working within
the premises of the business of the employer and in relation to or in connection with its business, as in its staffhouses
for its guest or even for its officers and employees, warrants the conclusion that such househelper or domestic servant is
and should be considered as a regular employee of the employer and not as a mere family househelper or domestic
servant as contemplated in Rule XIII, Section 1(b), Book 3 of the Labor Code, as amended. cdphil

Petitioner denies having illegally dismissed private respondent and maintains that respondent abandoned her work. This
argument notwithstanding, there is enough evidence to show that because of an accident which took place while private
respondent was performing her laundry services, she was not able to work and was ultimately separated from the
service. She is, therefore, entitled to appropriate relief as a regular employee of petitioner. Inasmuch as private
respondent appears not to be interested in returning to her work for valid reasons, the payment of separation pay to
her is in order.

WHEREFORE, the petition is DISMISSED and the appealed decision and resolution of public respondent NLRC are hereby
AFFIRMED. No pronouncement as to costs. SO ORDERED

||| (Apex Mining Co., Inc. v. National Labor Relations Commission, G.R. No. 94951, [April 22, 1991], 273 PHIL 477-482)

SECOND DIVISION

[G.R. Nos. 169295-96. November 20, 2006.]

REMINGTON INDUSTRIAL SALES CORPORATION, petitioner, vs. ERLINDA CASTANEDA, respondent.

DECISION

PUNO, J p:

Before this Court is the Petition for Review on Certiorari 1 filed by Remington Industrial Sales Corporation to
reverse and set aside the Decision 2 of the Fourth Division of the Court of Appeals in CA-G.R. SP Nos. 64577 and 68477,
dated January 31, 2005, which dismissed petitioner's consolidated petitions for certiorari, and its subsequent Resolution,
3 dated August 11, 2005, which denied petitioner's motion for reconsideration.

The antecedent facts of the case, as narrated by the Court of Appeals, are as follows:

The present controversy began when private respondent, Erlinda Castaneda ("Erlinda")
instituted on March 2, 1998 a complaint for illegal dismissal, underpayment of wages, non-payment of
overtime services, non-payment of service incentive leave pay and non-payment of 13th month pay
against Remington before the NLRC, National Capital Region, Quezon City. The complaint impleaded
Mr. Antonio Tan in his capacity as the Managing Director of Remington.

Erlinda alleged that she started working in August 1983 as company cook with a salary of Php
4,000.00 for Remington, a corporation engaged in the trading business; that she worked for six (6)
 days a week, starting as early as 6:00 a.m. because she had to do the marketing and would end at
around 5:30 p.m., or even later, after most of the employees, if not all, had left the company
premises; that she continuously worked with Remington until she was unceremoniously prevented
from reporting for work when Remington transferred to a new site in Edsa, Caloocan City. She averred
that she reported for work at the new site in Caloocan City on January 15, 1998, only to be informed
that Remington no longer needed her services. Erlinda believed that her dismissal was illegal because
she was not given the notices required by law; hence, she filed her complaint for reinstatement
without loss of seniority rights, salary differentials, service incentive leave pay, 13th month pay and
10% attorney's fees. DISEaC

Remington denied that it dismissed Erlinda illegally. It posited that Erlinda was a domestic
helper, not a regular employee; Erlinda worked as a cook and this job had nothing to do with
Remington's business of trading in construction or hardware materials, steel plates and wire rope
products. It also contended that contrary to Erlinda's allegations that the (sic) she worked for eight (8)
hours a day, Erlinda's duty was merely to cook lunch and "merienda", after which her time was hers to
spend as she pleased. Remington also maintained that it did not exercise any degree of control and/or
supervision over Erlinda's work as her only concern was to ensure that the employees' lunch and
"merienda" were available and served at the designated time. Remington likewise belied Erlinda's
assertion that her work extended beyond 5:00 p.m. as she could only leave after all the employees
had gone. The truth, according to Remington, is that Erlinda did not have to punch any time card in
the way that other employees of Remington did; she was free to roam around the company premises,
read magazines, and to even nap when not doing her assigned chores. Remington averred that the
illegal dismissal complaint lacked factual and legal bases. Allegedly, it was Erlinda who refused to
report for work when Remington moved to a new location in Caloocan City.

In a Decision 4 dated January 19, 1999, the labor arbiter dismissed the complaint and ruled that the respondent
was a domestic helper under the personal service of Antonio Tan, finding that her work as a cook was not usually
necessary and desirable in the ordinary course of trade and business of the petitioner corporation, which operated as a
trading company, and that the latter did not exercise control over her functions. On the issue of illegal dismissal, the
labor arbiter found that it was the respondent who refused to go with the family of Antonio Tan when the corporation
transferred office and that, therefore, respondent could not have been illegally dismissed.

Upon appeal, the National Labor Relations Commission (NLRC) rendered a Decision, 5 dated November 23, 2000,
reversing the labor arbiter, ruling, viz:

We are not inclined to uphold the declaration below that complainant is a domestic helper of
the family of Antonio Tan. There was no allegation by respondent that complainant had ever worked
in the residence of Mr. Tan. What is clear from the facts narrated by the parties is that complainant
continuously did her job as a cook in the office of respondent serving the needed food for lunch and
merienda of the employees. Thus, her work as cook inured not for the benefit of the family members
of Mr. Tan but solely for the individual employees of respondent.

Complainant as an employee of respondent company is even bolstered by no less than the

certification dated May 23, 1997 issued by the corporate secretary of the company certifying that
complainant is their bonafide employee. This is a solid evidence which the Labor Arbiter simply
brushed aside. But, such error would not be committed here as it would be at the height of injustice if
we are to declare that complainant is a domestic helper.

Complainant's work schedule and being paid a monthly salary of P4,000.00 are clear indication
that she is a company employee who had been employed to cater to the food needed by the
employees which were being provided by respondent to form part of the benefit granted them.

With regard to the issue of illegal dismissal, we believe that there is more reason to believe
that complainant was not dismissed because allegedly she was the one who refused to work in the
new office of respondent. However, complainant's refusal to join the workforce due to poor eyesight
could not be considered abandonment of work or voluntary resignation from employment.

Under the Labor Code as amended, an employee who reaches the age of sixty years old (60
years) has the option to retire or to separate from the service with payment of separation
pay/retirement benefit.

In this case, we notice that complainant was already 60 years old at the time she filed the
complaint praying for separation pay or retirement benefit and some money claims. DISEaC
 Based on Article 287 of the Labor Code as amended, complainant is entitled to be paid her
separation pay/retirement benefit equivalent to one-half (1/2) month for every year of service. The
amount of separation pay would be based on the prescribed minimum wage at the time of dismissal
since she was then underpaid. In as much as complainant is underpaid of her wages, it behooves that
she should be paid her salary differential for the last three years prior to separation/retirement.

xxx xxx xxx

WHEREFORE, premises considered, the assailed decision is hereby, SET ASIDE, and a new one
is hereby entered ordering respondents to pay complainant the following:

1. Salary differential P12,021.12

2. Service Incentive Leave Pay 2,650.00
3. 13th Month Pay differential 1,001.76
4. Separation Pay/retirement benefit 36,075.00
—————
Total P51,747.88

SO ORDERED.

Petitioner moved to reconsider this decision but the NLRC denied the motion. This denial of its motion
prompted petitioner to file a Petition for Certiorari 6 with the Court of Appeals, docketed as CA-G.R. SP No. 64577, on
May 4, 2001, imputing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC in (1)
reversing in toto the decision of the labor arbiter, and (2) awarding in favor of respondent salary differential, service
incentive leave pay, 13th month pay differential and separation benefits in the total sum of P51,747.88.

While the petition was pending with the Court of Appeals, the NLRC rendered another Decision 7 in the same
case on August 29, 2001. How and why another decision was rendered is explained in that decision as follows:

On May 17, 2001, complainant filed a Manifestation praying for a resolution of her Motion for
Reconsideration and, in support thereof, alleges that, sometime December 18, 2000, she mailed her
Manifestation and Motion for Reconsideration registered as Registered Certificate No. 188844; and
that the said mail was received by the NLRC, through a certain Roland Hernandez, on December 26,
2000. Certifications to this effect was issued by the Postmaster of the Sta. Mesa Post Office bearing
the date May 11, 2001 (Annexes A and B, Complainant's Manifestation).

Evidence in support of complainant's having actually filed a Motion for Reconsideration within
the reglementary period having been sufficiently established, a determination of its merits is thus, in
order.

On the merits, the NLRC found respondent's motion for reconsideration meritorious leading to the issuance of
its second decision with the following dispositive portion:

WHEREFORE, premises considered, the decision dated November 23, 2000, is MODIFIED by
increasing the award of retirement pay due the complainant in the total amount of SIXTY TWO
THOUSAND FOUR HUNDRED THIRTY-SEVEN and 50/100 (P62,437.50). All other monetary relief so
adjudged therein are maintained and likewise made payable to the complainant.

SO ORDERED.

Petitioner challenged the second decision of the NLRC, including the resolution denying its motion for
reconsideration, through a second Petition for Certiorari 8 filed with the Court of Appeals, docketed as CA-G.R. SP No.
68477 and dated January 8, 2002, this time imputing grave abuse of discretion amounting to lack of or excess of
jurisdiction on the part of the NLRC in (1) issuing the second decision despite losing its jurisdiction due to the pendency
of the first petition for certiorari with the Court of Appeals, and (2) assuming it still had jurisdiction to issue the second
decision notwithstanding the pendency of the first petition for certiorari with the Court of Appeals, that its second
decision has no basis in law since respondent's motion for reconsideration, which was made the basis of the second
decision, was not filed under oath in violation of Section 14, Rule VII 9 of the New Rules of Procedure of the NLRC and
that it contained no certification as to why respondent's motion for reconsideration was not decided on time as also
required by Section 10, Rule VI 10 and Section 15, Rule VII 11 of the aforementioned rules. ITScHa
 Upon petitioner's motion, the Court of Appeals ordered the consolidation of the two (2) petitions, on January
24, 2002, pursuant to Section 7, par. b(3), Rule 3 of the Revised Rules of the Court of Appeals. It summarized the
principal issues raised in the consolidated petitions as follows:

1. Whether respondent is petitioner's regular employee or a domestic helper;

2. Whether respondent was illegally dismissed; and

3. Whether the second NLRC decision promulgated during the pendency of the first petition for certiorari has
basis in law.

On January 31, 2005, the Court of Appeals dismissed the consolidated petitions for lack of merit, finding no
grave abuse of discretion on the part of the NLRC in issuing the assailed decisions.

On the first issue, it upheld the ruling of the NLRC that respondent was a regular employee of the petitioner
since the former worked at the company premises and catered not only to the personal comfort and enjoyment of Mr.
Tan and his family, but also to that of the employees of the latter. It agreed that petitioner enjoys the prerogative to
control respondent's conduct in undertaking her assigned work, particularly the nature and situs of her work in relation
to the petitioner's workforce, thereby establishing the existence of an employer-employee relationship between them.

On the issue of illegal dismissal, it ruled that respondent has attained the status of a regular employee in her
service with the company. It noted that the NLRC found that no less than the company's corporate secretary certified
that respondent is a bonafide company employee and that she had a fixed schedule and routine of work and was paid a
monthly salary of P4,000.00; that she served with petitioner for 15 years starting in 1983, buying and cooking food
served to company employees at lunch and merienda; and that this work was usually necessary and desirable in the
regular business of the petitioner. It held that as a regular employee, she enjoys the constitutionally guaranteed right to
security of tenure and that petitioner failed to discharge the burden of proving that her dismissal on January 15, 1998
was for a just or authorized cause and that the manner of dismissal complied with the requirements under the law.

Finally, on petitioner's other arguments relating to the alleged irregularity of the second NLRC decision, i.e., the
fact that respondent's motion for reconsideration was not under oath and had no certification explaining why it was not
resolved within the prescribed period, it held that such violations relate to procedural and non-jurisdictional matters
that cannot assume primacy over the substantive merits of the case and that they do not constitute grave abuse of
discretion amounting to lack or excess of jurisdiction that would nullify the second NLRC decision.

The Court of Appeals denied petitioner's contention that the NLRC lost its jurisdiction to issue the second
decision when it received the order indicating the Court of Appeals' initial action on the first petition for certiorari that it
filed. It ruled that the NLRC's action of issuing a decision in installments was not prohibited by its own rules and that the
need for a second decision was justified by the fact that respondent's own motion for reconsideration remained
unresolved in the first decision. Furthermore, it held that under Section 7, Rule 65 of the Revised Rules of Court, 12 the
filing of a petition for certiorari does not interrupt the course of the principal case unless a temporary restraining order
or a writ of preliminary injunction has been issued against the public respondent from further proceeding with the case.
acHDTA

From this decision, petitioner filed a motion for reconsideration on February 22, 2005, which the Court of
Appeals denied through a resolution dated August 11, 2005.

Hence, the present petition for review.

The petitioner raises the following errors of law: (1) the Court of Appeals erred in affirming the NLRC's ruling
that the respondent was petitioner's regular employee and not a domestic helper; (2) the Court of Appeals erred in
holding that petitioner was guilty of illegal dismissal; and (3) the Court of Appeals erred when it held that the issuance of
the second NLRC decision is proper.

The petition must fail. We affirm that respondent was a regular employee of the petitioner and that the latter
was guilty of illegal dismissal.

Before going into the substantive merits of the present controversy, we shall first resolve the propriety of the
issuance of the second NLRC decision.

The petitioner contends that the respondent's motion for reconsideration, upon which the second NLRC
decision was based, was not under oath and did not contain a certification as to why it was not decided on time as
required under the New Rules of Procedure of the NLRC. 13 Furthermore, the former also raises for the first time the
contention that respondent's motion was filed beyond the ten (10)-calendar day period required under the same Rules,
14 since the latter received a copy of the first NLRC decision on December 6, 2000, and respondent filed her motion only
on December 18, 2000. Thus, according to petitioner, the respondent's motion for reconsideration was a mere scrap of
paper and the second NLRC decision has no basis in law.

We do not agree.

It is well-settled that the application of technical rules of procedure may be relaxed to serve the demands of
substantial justice, particularly in labor cases. 15 Labor cases must be decided according to justice and equity and the
substantial merits of the controversy. 16 Rules of procedure are but mere tools designed to facilitate the attainment of
justice. 17 Their strict and rigid application, which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be avoided. 18

This Court has consistently held that the requirement of verification is formal, and not jurisdictional. Such
requirement is merely a condition affecting the form of the pleading, non-compliance with which does not necessarily
render it fatally defective. Verification is simply intended to secure an assurance that the allegations in the pleading are
true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good
faith. 19 The court may order the correction of the pleading if verification is lacking or act on the pleading although it is
not verified, if the attending circumstances are such that strict compliance with the rules may be dispensed with in order
that the ends of justice may thereby be served. 20

Anent the argument that respondent's motion for reconsideration, on which the NLRC's second decision was
based, was filed out of time, such issue was only brought up for the first time in the instant petition where no new issues
may be raised by a party in his pleadings without offending the right to due process of the opposing party. ACEIac

Nonetheless, the petitioner asserts that the respondent received a copy of the NLRC's first decision on
December 6, 2000, and the motion for reconsideration was filed only on December 18, 2000, or two (2) days beyond the
ten (10)-calendar day period requirement under the New Rules of Procedure of the NLRC and should not be allowed. 21

This contention must fail.

Under Article 223 22 of the Labor Code, the decision of the NLRC shall be final and executory after ten (10)
calendar days from the receipt thereof by the parties.

While it is an established rule that the perfection of an appeal in the manner and within the period prescribed by
law is not only mandatory but jurisdictional, and failure to perfect an appeal has the effect of rendering the judgment
final and executory, it is equally settled that the NLRC may disregard the procedural lapse where there is an acceptable
reason to excuse tardiness in the taking of the appeal. 23 Among the acceptable reasons recognized by this Court are (a)
counsel's reliance on the footnote of the notice of the decision of the Labor Arbiter that "the aggrieved party may
appeal . . . within ten (10) working days"; 24 (b) fundamental consideration of substantial justice; 25 (c) prevention of
miscarriage of justice or of unjust enrichment, as where the tardy appeal is from a decision granting separation pay
which was already granted in an earlier final decision; 26 and (d) special circumstances of the case combined with its
legal merits 27 or the amount and the issue involved. 28

We hold that the particular circumstances in the case at bar, in accordance with substantial justice, call for a
liberalization of the application of this rule. Notably, respondent's last day for filing her motion for reconsideration fell
on December 16, 2000, which was a Saturday. In a number of cases, 29 we have ruled that if the tenth day for perfecting
an appeal fell on a Saturday, the appeal shall be made on the next working day. The reason for this ruling is that on
Saturdays, the office of the NLRC and certain post offices are closed. With all the more reason should this doctrine apply
to respondent's filing of the motion for reconsideration of her cause, which the NLRC itself found to be impressed with
merit. Indeed, technicality should not be permitted to stand in the way of equitably and completely resolving the rights
and obligations of the parties for the ends of justice are reached not only through the speedy disposal of cases but, more
importantly, through a meticulous and comprehensive evaluation of the merits of a case.

Finally, as to petitioner's argument that the NLRC had already lost its jurisdiction to decide the case when it filed
its petition for certiorari with the Court of Appeals upon the denial of its motion for reconsideration, suffice it to state
that under Section 7 of Rule 65 30 of the Revised Rules of Court, the petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public
respondent from further proceeding with the case. Thus, the mere pendency of a special civil action for certiorari, in
connection with a pending case in a lower court, does not interrupt the course of the latter if there is no writ of
injunction. 31 Clearly, there was no grave abuse of discretion on the part of the NLRC in issuing its second decision which
modified the first, especially since it failed to consider the respondent's motion for reconsideration when it issued its
first decision.
 Having resolved the procedural matters, we shall now delve into the merits of the petition to determine
whether respondent is a domestic helper or a regular employee of the petitioner, and whether the latter is guilty of
illegal dismissal.

Petitioner relies heavily on the affidavit of a certain Mr. Antonio Tan and contends that respondent is the latter's
domestic helper and not a regular employee of the company since Mr. Tan has a separate and distinct personality from
the petitioner. It maintains that it did not exercise control and supervision over her functions; and that it operates as a
trading company and does not engage in the restaurant business, and therefore respondent's work as a cook, which was
not usually necessary or desirable to its usual line of business or trade, could not make her its regular employee.

This contention fails to impress.

In Apex Mining Company, Inc. v. NLRC, 32 this Court held that a househelper in the staff houses of an industrial
company was a regular employee of the said firm. We ratiocinated that:

Under Rule XIII, Section 1(b), Book 3 of the Labor Code, as amended, the terms "househelper"
or "domestic servant" are defined as follows:

"The term 'househelper' as used herein is synonymous to the term 'domestic servant' and
shall refer to any person, whether male or female, who renders services in and about the employer's
home and which services are usually necessary or desirable for the maintenance and enjoyment
thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family."

The foregoing definition clearly contemplates such househelper or domestic servant who is
employed in the employer's home to minister exclusively to the personal comfort and enjoyment of
the employer's family. Such definition covers family drivers, domestic servants, laundry women, yayas,
gardeners, houseboys and similar househelps. THIASE

xxx xxx xxx

The criteria is the personal comfort and enjoyment of the family of the employer in the home
of said employer. While it may be true that the nature of the work of a househelper, domestic servant
or laundrywoman in a home or in a company staffhouse may be similar in nature, the difference in
their circumstances is that in the former instance they are actually serving the family while in the
latter case, whether it is a corporation or a single proprietorship engaged in business or industry or
any other agricultural or similar pursuit, service is being rendered in the staffhouses or within the
premises of the business of the employer. In such instance, they are employees of the company or
employer in the business concerned entitled to the privileges of a regular employee.

Petitioner contends that it is only when the househelper or domestic servant is assigned to
certain aspects of the business of the employer that such househelper or domestic servant may be
considered as such an employee. The Court finds no merit in making any such distinction. The mere
fact that the househelper or domestic servant is working within the premises of the business of the
employer and in relation to or in connection with its business, as in its staffhouses for its guest or
even for its officers and employees, warrants the conclusion that such househelper or domestic
servant is and should be considered as a regular employee of the employer and not as a mere family
househelper or domestic servant as contemplated in Rule XIII, Section 1(b), Book 3 of the Labor Code,
as amended.

In the case at bar, the petitioner itself admits in its position paper 33 that respondent worked at the company
premises and her duty was to cook and prepare its employees' lunch and merienda. Clearly, the situs, as well as the
nature of respondent's work as a cook, who caters not only to the needs of Mr. Tan and his family but also to that of the
petitioner's employees, makes her fall squarely within the definition of a regular employee under the doctrine
enunciated in the Apex Mining case. That she works within company premises, and that she does not cater exclusively
to the personal comfort of Mr. Tan and his family, is reflective of the existence of the petitioner's right of control over
her functions, which is the primary indicator of the existence of an employer-employee relationship.

Moreover, it is wrong to say that if the work is not directly related to the employer's business, then the person
performing such work could not be considered an employee of the latter. The determination of the existence of an
employer-employee relationship is defined by law according to the facts of each case, regardless of the nature of the
activities involved. 34 Indeed, it would be the height of injustice if we were to hold that despite the fact that respondent
was made to cook lunch and merienda for the petitioner's employees, which work ultimately redounded to the benefit
of the petitioner corporation, she was merely a domestic worker of the family of Mr. Tan.

We note the findings of the NLRC, affirmed by the Court of Appeals, that no less than the company's corporate
secretary has certified that respondent is a bonafide company employee; 35 she had a fixed schedule and routine of
work and was paid a monthly salary of P4,000.00; 36 she served with the company for 15 years starting in 1983, buying
and cooking food served to company employees at lunch and merienda, and that this service was a regular feature of
employment with the company. 37

Indubitably, the Court of Appeals, as well as the NLRC, correctly held that based on the given circumstances, the
respondent is a regular employee of the petitioner.

Having determined that the respondent is petitioner's regular employee, we now proceed to ascertain the
legality of her dismissal from employment.

Petitioner contends that there was abandonment on respondent's part when she refused to report for work
when the corporation transferred to a new location in Caloocan City, claiming that her poor eyesight would make long
distance travel a problem. Thus, it cannot be held guilty of illegal dismissal. TcaAID

On the other hand, the respondent claims that when the petitioner relocated, she was no longer called for duty
and that when she tried to report for work, she was told that her services were no longer needed. She contends that the
petitioner dismissed her without a just or authorized cause and that she was not given prior notice, hence rendering the
dismissal illegal.

We rule for the respondent.

As a regular employee, respondent enjoys the right to security of tenure under Article 279 38 of the Labor Code
and may only be dismissed for a just 39 or authorized 40 cause, otherwise the dismissal becomes illegal and the
employee becomes entitled to reinstatement and full backwages computed from the time compensation was withheld
up to the time of actual reinstatement.

Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. 41 It is a form
of neglect of duty; hence, a just cause for termination of employment by the employer under Article 282 of the Labor
Code, which enumerates the just causes for termination by the employer. 42 For a valid finding of abandonment, these
two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a
clear intention to sever employer-employee relationship, with the second as the more determinative factor which is
manifested by overt acts from which it may be deduced that the employee has no more intention to work. 43 The intent
to discontinue the employment must be shown by clear proof that it was deliberate and unjustified. 44 This, the
petitioner failed to do in the case at bar.

Alongside the petitioner's contention that it was the respondent who quit her employment and refused to
return to work, greater stock may be taken of the respondent's immediate filing of her complaint with the NLRC. Indeed,
an employee who loses no time in protesting her layoff cannot by any reasoning be said to have abandoned her work,
for it is well-settled that the filing of an employee of a complaint for illegal dismissal with a prayer for reinstatement is
proof enough of her desire to return to work, thus, negating the employer's charge of abandonment. 45

In termination cases, the burden of proof rests upon the employer to show that the dismissal is for a just and
valid cause; failure to do so would necessarily mean that the dismissal was illegal. 46 The employer's case succeeds or
fails on the strength of its evidence and not on the weakness of the employee's defense. 47 If doubt exists between the
evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. 48

IN VIEW WHEREOF, the petition is DENIED for lack of merit. The assailed Decision dated January 31, 2005, and
the Resolution dated August 11, 2005, of the Court of Appeals in CA-G.R. SP Nos. 64577 and 68477 are AFFIRMED. Costs
against petitioner.

SO ORDERED

||| (Remington Industrial Sales Corp. v. Castaneda, G.R. Nos. 169295-96, [November 20, 2006], 537 PHIL 549-571)

F. Handicapped/Disabled

R.A. 7277, Magna Carta for the Disabled, Sections 4 (a-d, i), 5-11, 32-33
 Labor Code: Articles 78-81

Omnibus Rules: Book II, Rule VIII

THIRD DIVISION

[G.R. No. 122917. July 12, 1999.]

MARITES BERNARDO, ELVIRA GO DIAMANTE, REBECCA E. DAVID, DAVID P. PASCUAL, RAQUEL

ESTILLER, ALBERT HALLARE, EDMUND M. CORTEZ, JOSELITO O. AGDON, GEORGE P. LIGUTAN JR.,
CELSO M. YAZAR, ALEX G. CORPUZ, RONALD M. DELFIN, ROWENA M. TABAQUERO, CORAZON C.
DELOS REYES, ROBERT G. NOORA, MILAGROS O. LEQUIGAN, ADRIANA F. TATLONGHARI, IKE
CABANDUCOS, COCOY NOBELLO, DORENDA CANTIMBUHAN, ROBERT MARCELO, LILIBETH Q.
MARMOLEJO, JOSE E. SALES, ISABEL MAMAUAG, VIOLETA G. MONTES, ALBINO TECSON, MELODY V.
GRUELA, BERNADETH D. AGERO, CYNTHIA DE VERA, LANI R. CORTEZ, MA. ISABEL B. CONCEPCION,
DINDO VALERIO, ZENAIDA MATA, ARIEL DEL PILAR, MARGARET CECILIA CANOZA, THELMA
SEBASTIAN, MA. JEANETTE CERVANTES, JEANNIE RAMIL, ROZAIDA PASCUAL, PINKY BALOLOA,
ELIZABETH VENTURA, GRACE S. PARDO and RICO TIMOSA, petitioners, vs. NATIONAL LABOR
RELATIONS COMMISSION & FAR EAST BANK AND TRUST COMPANY,respondents.

Sentro ng Alternatibong Lingap Panlegal (SALIGAN) for petitioners.

Picazo Buyco Tan Fider & San for private respondent.

SYNOPSIS

This petition sought the reversal of the decision of the National Labor Relations Commission affirming the ruling
of the labor arbiter that they could not be deemed regular employees under Article 280 of the Labor Code.

The Court granted the petition. Respondent bank entered into employment contracts with handicapped workers
and renewed the contracts of 37 of them. This showed that these workers were qualified to perform the responsibilities
of their positions. The Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given
the same terms of employment as a qualified able-bodied person. This being so, petitioners are thus covered by Art. 280
of the Labor Code which defines regular employment to be that the employee has been engaged to perform activities
usually necessary or desirable in the usual business or trade of the employer. The task of counting and sorting bills is
necessary to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks
for more than six months. Therefore, the 27 petitioners should be deemed regular employees entitled to security of
tenure. Their services may only be terminated for a just and authorized cause. Because respondents failed to show such
cause, these 27 petitioners are deemed illegally dismissed and hence entitled to backwages and separation pay.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; FACTUAL FINDINGS, NOT SUBJECT TO REVIEW. — True,
the Court, as a rule, does not review the factual findings of public respondents in a certiorari proceeding. In resolving
whether the petitioners have become regular employees, we shall not change the facts found by the public respondent.
Our task is merely to determine whether the NLRC committed grave abuse of discretion in applying the law to the
established facts, as above-quoted from the assailed Decision.

2. LABOR AND SOCIAL LEGISLATION; LABOR CODE; EMPLOYMENT CONTRACTS; QUALIFIED DISABLED PERSONS
REMOVE CONTRACT FROM AMBIT OF ARTICLE 80 OF LABOR CODE. — The Magna Carta for Disabled Persons mandates
that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-
bodied person. The fact that the employees were qualified disabled persons necessarily removes the employment
contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons,
they are thus covered by Article 280 of the Labor Code.

3. ID.; ID.; EMPLOYMENT; TEST WHETHER EMPLOYEE IS REGULAR. — The test of whether an employee is regular
was laid down in De Leon v. NLRC, in which this Court held: "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 the 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 one 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."

4. ID.; ID.; ID.; ID.; CASE AT BAR. — Without a doubt, the task of counting and sorting bills is necessary and
desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks
for more than six months. Thus, the twenty-seven petitioners should be deemed regular employees. As held by the
Court, "Articles 280 and 281 of the Labor Code put an end to the pernicious practice of making permanent casuals of our
lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum." The contract
signed by petitioners is akin to a probationary employment, during which the bank determined the employees' fitness
for the job. When the bank renewed the contract after the lapse of the six-month probationary period, the employees
thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees.

5. ID.; ID.; ID.; REGULAR EMPLOYEES ENTITLED TO SECURITY OF TENURE; ILLEGALLY DISMISSED EMPLOYEE
ENTITLED TO SEPARATION PAY IN LIEU OF REINSTATEMENT. — As regular employees, the twenty-seven petitioners are
entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause. Because
respondent failed to show such cause, these twenty-seven petitioners are deemed illegally dismissed and therefore
entitled to back wages and reinstatement without loss of seniority rights and other privileges. Considering the allegation
of respondent that the job of money sorting is no longer available because it has been assigned back to the tellers to
whom it originally belonged, petitioners are hereby awarded separation pay in lieu of reinstatement. Because the other
sixteen worked only for six months, they are not deemed regular employees and hence not entitled to the same
benefits.

6. ID.; ID.; ID.; EMPLOYMENT CONTRACT WITH FIXED TERM; RULING IN BRENT CASE NOT APPLICABLE IN CASE
AT BAR. — Respondent bank, citing Brent School v. Zamora in which the Court upheld the validity of an employment
contract with a fixed term, argues that the parties entered into the contract on equal footing. It adds that the petitioners
had in fact an advantage, because they were backed by then DSWD Secretary Mita Pardo de Tavera and Representative
Arturo Borjal. We are not persuaded. The term limit in the contract was premised on the fact that the petitioners were
disabled, and that the bank had to determine their fitness for the position. Indeed, its validity is based on Article 80 of
the Labor Code. But as noted earlier, petitioners proved themselves to be qualified disabled persons who, under the
Magna Carta for Disabled Persons, are entitled to terms and conditions of employment enjoyed by qualified able-bodied
individuals; hence, Article 80 does not apply because petitioners are qualified for their positions. The validation of the
limit imposed on their contracts, imposed by reason of their disability, was a glaring instance of the very mischief sought
to be addressed by the new law.

7. ID.; ID.; EMPLOYMENT CONTRACT; IMPRESSED WITH PUBLIC INTEREST; PARTIES ARE NOT AT LIBERTY TO
INSULATE THEMSELVES. — It must be emphasized that a contract of employment is impressed with public interest.
Provisions of applicable statutes are deemed written into the contract, and the "parties are not at liberty to insulate
themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other."
Clearly, the agreement of the parties regarding the period of employment cannot prevail over the provisions of the
Magna Carta for Disabled Persons, which mandate that petitioners must be treated as qualified able-bodied employees.
DTEIaC

8. ID.; ID.; EMPLOYMENT; CHARACTER OF EMPLOYMENT; HOW DETERMINED. — As earlier noted, an employee
is regular because of the nature of work and the length of service, not because of the mode or even the reason for hiring
them. In L.T. Datu v. NLRC, the Court held that "the determination of whether employment is casual or regular does not
depend on the will or word of the employer, and the procedure of hiring . . . but on the nature of the activities
performed by the employee, and to some extent, the length of performance and its continued existence." The character
of employment is determined not by stipulations in the contract, but by the nature of the work performed. Otherwise,
no employee can become regular by the simple expedient of incorporating this condition in the contract of employment.

9. ID.; MAGNA CARTA FOR DISABLED PERSONS; OBJECTIVES BASED NOT MERELY ON CHARITY BUT ON JUSTICE
AND EQUAL TREATMENT OF QUALIFIED PERSONS. — In rendering this Decision, the Court emphasizes not only the
constitutional bias in favor of the working class, but also the concern of the State for the plight of the disabled. The
noble objectives of Magna Carta for Disabled Persons are not based merely on charity or accommodation, but on justice
and the equal treatment of qualified persons, disabled or not. In the present case, the handicap of petitioners (deaf-
mutes) is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their
employment contracts. Why then should they be dismissed, simply because they are physically impaired? The Court
believes, that, after showing their fitness for the work assigned to them, they should be treated and granted the same
rights like any other regular employees.
 DECISION

PANGANIBAN, J p:

The Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and
conditions of employment as qualified able-bodied employees. Once they have attained the status of regular workers,
they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary.
This treatment is rooted not merely on charity or accommodation, but on justice for all. LLjur

The Case

Challenged in the Petition for Certiorari 1 before us is the June 20, 1995 Decision 2 of the National Labor
Relations Commission (NLRC), 3 which affirmed the August, 22 1994 ruling of Labor Arbiter Cornelio L. Linsangan. The
labor arbiter's Decision disposed as follows: 4

"WHEREFORE, judgment is hereby rendered dismissing the above-mentioned complaint for

lack of merit."

Also assailed is the August 4, 1995 Resolution 5 of the NLRC, which denied the Motion for Reconsideration.

The Facts

The facts were summarized by the NLRC in this wise: 6

"Complainants numbering 43 (p. 176, Records) are deaf-mutes who were hired on various
periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters
through a uniformly worded agreement called 'Employment Contract for Handicapped Workers'. (pp.
68 & 69, Records) The full text of said agreement is quoted below:

'EMPLOYMENT CONTRACT FOR HANDICAPPED WORKERS

This Contract, entered into by and between:

FAR EAST BANK AND TRUST COMPANY, a universal banking corporation duly
organized and existing under and by virtue of the laws of the Philippines, with business
address at FEBTC Building, Muralla, Intramuros, Manila, represented herein by its Assistant
Vice President, MR. FLORENDO G. MARANAN, (hereinafter referred to as the 'BANK');

- and -

__________________________, _______ years old, of legal age, _____________, and

residing at ______________________ (hereinafter referred to as the ('EMPLOYEE').

WITNESSETH: That

WHEREAS, the BANK, cognizant of its social responsibility, realizes that there is a need
to provide disabled and handicapped persons gainful employment and opportunities to realize
their potentials, uplift their socio-economic well being and welfare and make them
productive, self-reliant and useful citizens to enable them to fully integrate in the mainstream
of society; cdtai

WHEREAS, there are certain positions in the BANK which may be filled-up by disabled
and handicapped persons, particularly deaf-mutes, and the BANK ha[s] been approached by
some civic-minded citizens and authorized government agencies [regarding] the possibility of
hiring handicapped workers for these positions;

WHEREAS, the EMPLOYEE is one of those handicapped workers who [were]

recommended for possible employment with the BANK;

NOW, THEREFORE, for and in consideration of the foregoing premises and in

compliance with Article 80 of the Labor Code of the Philippines as amended, the BANK and the
EMPLOYEE have entered into this Employment Contract as follows:
 1. The BANK agrees to employ and train the EMPLOYEE, and the EMPLOYEE agrees to
diligently and faithfully work with the BANK, as Money Sorter and Counter.

2. The EMPLOYEE shall perform among others, the following duties and
responsibilities:

i. Sort out bills according to color;

ii. Count each denomination per hundred, either manually or with the aid of a counting
machine;

iii. Wrap and label bills per hundred;

iv. Put the wrapped bills into bundles; and

v. Submit bundled bills to the bank teller for verification.

3. The EMPLOYEE shall undergo a training period of one (1) month, after which the
BANK shall determine whether or not he/she should be allowed to finish the remaining term
of this Contract.

4. The EMPLOYEE shall be entitled to an initial compensation of P118.00 per day,

subject to adjustment in the sole judgment of the BANK, payable every 15th and end of the
month.

5. The regular work schedule of the EMPLOYEE shall be five (5) days per week, from
Mondays thru Fridays, at eight (8) hours a day. The EMPLOYEE may be required to perform
overtime work as circumstance may warrant, for which overtime work he/she [shall] be paid
an additional compensation of 125% of his daily rate if performed during ordinary days and
130% if performed during Saturday or [a] rest day.

6. The EMPLOYEE shall likewise be entitled to the following benefits:

i. Proportionate 13th month pay based on his basic daily wage.

ii. Five (5) days incentive leave.

iii. SSS premium payment.

7. The EMPLOYEE binds himself/herself to abide [by] and comply with all the BANK
Rules and Regulations and Policies, and to conduct himself/herself in a manner expected of all
employees of the BANK.

8. The EMPLOYEE acknowledges the fact that he/she had been employed under a
special employment program of the BANK, for which reason the standard hiring requirements
of the BANK were not applied in his/her case. Consequently, the EMPLOYEE acknowledges and
accepts the fact that the terms and conditions of the employment generally observed by the
BANK with respect to the BANK's regular employee are not applicable to the EMPLOYEE, and
that therefore, the terms and conditions of the EMPLOYEE's employment with the BANK shall
be governed solely and exclusively by this Contract and by the applicable rules and regulations
that the Department of Labor and Employment may issue in connection with the employment
of disabled and handicapped workers. More specifically, the EMPLOYEE hereby acknowledges
that the provisions of Book Six of the Labor Code of the Philippines as amended, particularly
on regulation of employment and separation pay are not applicable to him/her. dctai

9. The Employment Contract shall be for a period of six (6) months or from ____ to
____ unless earlier terminated by the BANK for any just or reasonable cause. Any continuation
or extension of this Contract shall be in writing and therefore this Contract will automatically
expire at the end of its terms unless renewed in writing by the BANK.

IN WITNESS WHEREOF, the parties, have hereunto affixed their signature[s] this ____
day of _________________, ____________ at Intramuros, Manila, Philippines.'
 "In 1988, two (2) deaf-mutes were hired under this Agreement; in 1989 another two (2); in
1990, nineteen (19); in 1991 six (6); in 1992, six (6) and in 1993, twenty-one (21). Their employment[s]
were renewed every six months such that by the time this case arose, there were fifty-six (56) deaf-
mutes who were employed by respondent under the said employment agreement. The last one was
Thelma Malindoy who was employed in 1992 and whose contract expired on July 1993.

xxx xxx xxx

"Disclaiming that complainants were regular employees, respondent Far East Bank and Trust
Company maintained that complainants who are a special class of workers — the hearing impaired
employees were hired temporarily under [a] special employment arrangement which was a result of
overtures made by some civic and political personalities to the respondent Bank; that complainant[s]
were hired due to 'pakiusap' which must be considered in the light of the context of the respondent
Bank's corporate philosophy as well as its career and working environment which is to maintain and
strengthen a corps of professionals trained and qualified officers and regular employees who are
baccalaureate degree holders from excellent schools which is an unbending policy in the hiring of
regular employees; that in addition to this, training continues so that the regular employee grows in
the corporate ladder; that the idea of hiring handicapped workers was acceptable to them only on a
special arrangement basis; that it adopted the special program to help tide over a group of
handicapped workers such as deaf-mutes like the complainants who could do manual work for the
respondent Bank; that the task of counting and sorting of bills which was being performed by tellers
could be assigned to deaf-mutes; that the counting and sorting of money are tellering works which
were always logically and naturally part and parcel of the tellers' normal functions; that from the
beginning there have been no separate items in the respondent Bank plantilla for sorters or counters;
that the tellers themselves already did the sorting and counting chore as a regular feature and integral
part of their duties (p. 97, Records); that through the 'pakiusap' of Arturo Borjal, the tellers were
relieved of this task of counting and sorting bills in favor of deaf-mutes without creating new positions
as there is no position either in the respondent or in any other bank in the Philippines which deals
with purely counting and sorting of bills in banking operations." cda

Petitioners specified when each of them was hired and dismissed, viz: 7

"NAME OF PETITIONER WORKPLACE Date Hired Date Dismissed

1. MARITES BERNARDO Intramuros 12 NOV 90 17 NOV 93

2. ELVIRA GO DIAMANTE Intramuros 24 JAN 90 11 JAN 94
3. REBECCA E. DAVID Intramuros 16 APR 90 23 OCT 93
4. DAVID P. PASCUAL Bel-Air 15 OCT 88 21 NOV 94
5. RAQUEL ESTILLER Intramuros 2 JUL 92 4 JAN 94
6. ALBERT HALLARE West 4 JAN 91 9 JAN 94
7. EDMUND M. CORTEZ Bel-Air 15 JAN 91 3 DEC 93
8. JOSELITO O. AGDON Intramuros 5 NOV 90 17 NOV 93
9. GEORGE P. LIGUTAN, JR. Intramuros 6 SEPT 89 19 JAN 94
10. CELSO M. YAZAR Intramuros 8 FEB 93 8 AUG 93
11. ALEX G. CORPUZ Intramuros 15 FEB 93 15 AUG 93
12. RONALD M. DELFIN Intramuros 22 FEB 93 22 AUG 93
13. ROWENA M. TABAQUERO Intramuros 22 FEB 93 22 AUG 93
14. CORAZON C. DELOS REYES Intramuros 8 FEB 93 8 AUG 93
15. ROBERT G. NOORA Intramuros 15 FEB 93 15 AUG 93
16. MILAGROS O. LEQUIGAN Intramuros 1 FEB 93 1 AUG 93
17. ADRIANA F. TATLONGHARI Intramuros 22 JAN 93 22 JUL 93
18. IKE CABANDUCOS Intramuros 24 FEB 93 24 AUG 93
19. COCOY NOBELLO Intramuros 22 FEB 93 22 AUG 93
20. DORENDA CATIMBUHAN Intramuros 15 FEB 93 15 AUG 93
21. ROBERT MARCELO West 31 JUL 93 8 1 AUG 93
22. LILIBETH Q. MARMOLEJO West 15 JUN 90 21 NOV 93
23. JOSE E. SALES West 6 AUG 92 12 OCT 93
24. ISABEL MAMAUAG West 8 MAY 92 10 NOV 93
25. VIOLETA G. MONTES Intramuros 2 FEB 90 15 JAN 94
26. ALBINO TECSON Intramuros 7 NOV 91 10 NOV 93
 27. MELODY V. GRUELA West 28 OCT 91 3 NOV 93
28. BERNADETH D. AGERO West 19 DEC 90 27 DEC 93
29. CYNTHIA DE VERA Bel-Air 26 JUN 90 3 DEC 93
30. LANI R. CORTEZ Bel-Air 15 OCT 88 10 DEC 93
31. MA. ISABEL B. CONCEPCION West 6 SEPT 90 6 FEB 94
32. DINDO VALERIO Intramuros 30 MAY 93 30 NOV 93
33. ZENAIDA MATA Intramuros 10 FEB 93 10 AUG 93
34. ARIEL DEL PILAR Intramuros 24 FEB 93 24 AUG 93
35. MARGARET CECILIA CANOZA Intramuros 27 JUL 90 4 FEB 94
36. THELMA SEBASTIAN Intramuros 12 NOV 90 17 NOV 93
37. MA. JEANETTE CERVANTES West 6 JUN 92 7 DEC 93
38. JEANNIE RAMIL Intramuros 23 APR 90 12 OCT 93
39. ROZAIDA PASCUAL Bel-Air 20 APR 89 29 OCT 93
40. PINKY BALOLOA West 3 JUN 91 2 DEC 93
41. ELIZABETH VENTURA West 12 MAR 90 FEB 94 [sic]
42. GRACE S. PARDO West 4 APR 90 13 MAR 94
43. RICO TIMOSA Intramuros 28 APR 93 28 OCT 93"

As earlier noted, the labor arbiter and, on appeal, the NLRC ruled against herein petitioners. Hence, this
recourse to this Court. 9

The Ruling of the NLRC

In affirming the ruling of the labor arbiter that herein petitioners could not be deemed regular employees under
Article 280 of the Labor Code, as amended, Respondent Commission ratiocinated as follows:

"We agree that Art. 280 is not controlling herein. We give due credence to the conclusion that
complainants were hired as an accommodation to [the] recommendation of civic oriented
personalities whose employment[s] were covered by . . . Employment Contract[s] with special
provisions on duration of contract as specified under Art. 80. Hence, as correctly held by the Labor
Arbiter a quo, the terms of the contract shall be the law between the parties." 10

The NLRC also declared that the Magna Carta for Disabled Persons was not applicable, "considering the
prevailing circumstances/milieu of the case."

Issues

In their Memorandum, petitioners cite the following grounds in support of their cause:

"I. The Honorable Commission committed grave abuse of discretion in holding that the
petitioners — money sorters and counters working in a bank — were not regular employees.

"II. The Honorable Commission committed grave abuse of discretion in holding that the
employment contracts signed and renewed by the petitioners — which provide for a period of six (6)
months — were valid.

"III. The Honorable Commission committed grave abuse of discretion in not applying the
provisions of the Magna Carta for the Disabled (Republic Act No. 7277), on proscription against
discrimination against disabled persons." 11

In the main, the Court will resolve whether petitioners have become regular employees.

This Court's Ruling

The petition is meritorious. However, only the employees, who worked for more than six months and whose
contracts were renewed are deemed regular. Hence, their dismissal from employment was illegal.

Preliminary Matter:
Propriety of Certiorari
 Respondent Far East Bank and Trust Company argues that a review of the findings of facts of the NLRC is not
allowed in a petition for certiorari. Specifically, it maintains that the Court cannot pass upon the findings of public
respondents that petitioners were not regular employees. prcd

True, the Court, as a rule, does not review the factual findings of public respondents in a certiorari proceeding.
In resolving whether the petitioners have become regular employees, we shall not change the facts found by the public
respondent. Our task is merely to determine whether the NLRC committed grave abuse of discretion in applying the law
to the established facts, as above-quoted from the assailed Decision.

Main Issue:
Are Petitioners Regular Employees?

Petitioners maintain that they should be considered regular employees, because their task as money sorters and
counters was necessary and desirable to the business of respondent bank. They further allege that their contracts served
merely to preclude the application of Article 280 and to bar them from becoming regular employees.

Private respondent, on the other hand, submits that petitioners were hired only as "special workers and should
not in any way be considered as part of the regular complement of the Bank." 12 Rather, they were "special" workers
under Article 80 of the Labor Code. Private respondent contends that it never solicited the services of petitioners, whose
employment was merely an "accommodation" in response to the requests of government officials and civic-minded
citizens. They were told from the start, "with the assistance of government representatives," that they could not
become regular employees because there were no plantilla positions for "money sorters," whose task used to be
performed by tellers. Their contracts were renewed several times, not because of need "but merely for humanitarian
reasons." Respondent submits that "as of the present, the 'special position' that was created for the petitioners no
longer exist[s] in private respondent [bank], after the latter had decided not to renew anymore their special
employment contracts." cdphil

At the outset, let it be known that this Court appreciates the nobility of private respondent's effort to provide
employment to physically impaired individuals and to make them more productive members of society. However, we
cannot allow it to elude the legal consequences of that effort, simply because it now deems their employment
irrelevant. The facts, viewed in light of the Labor Code and the Magna Carta for Disabled Persons, indubitably show that
the petitioners, except sixteen of them, should be deemed regular employees. As such, they have acquired legal rights
that this Court is duty-bound to protect and uphold, not as a matter of compassion but as a consequence of law and
justice.

The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one
month, after which the employer shall determine whether or not they should be allowed to finish the 6-month term of
the contract. Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless
renewed in writing by the employer, the contract shall automatically expire at the end of the term.

According to private respondent, the employment contracts were prepared in accordance with Article 80 of the
Labor Code, which provides:

"ARTICLE 80. Employment agreement. — Any employer who employs handicapped workers
shall enter into an employment agreement with them, which agreement shall include:

(a) The names and addresses of the handicapped workers to be employed;

(b) The rate to be paid the handicapped workers which shall be not less than seventy five
(75%) per cent of the applicable legal minimum wage;

(c) The duration of employment period; and

(d) The work to be performed by handicapped workers.

The employment agreement shall be subject to inspection by the Secretary of Labor or his
duly authorized representatives."

The stipulations in the employment contracts indubitably conform with the aforecited provision. Succeeding
events and the enactment of RA No. 7277 (the Magna Carta for Disabled Persons), 13 however, justify the application of
Article 280 of the Labor Code.
 Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the
contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the
handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to
the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In
other words, their disability did not render them unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given
the same terms and conditions of employment as a qualified able-bodied person. Section 5 of the Magna Carta provides:
cdll

"SECTION 5. Equal Opportunity for Employment. — No disabled person shall be denied access
to opportunities for suitable employment. A qualified disabled employee shall be subject to the same
terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able bodied person."

The fact that the employees were qualified disabled persons necessarily removes the employment contracts
from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are
thus covered by Article 280 of the Labor Code, which provides:

"ARTICLE 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 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 services to be
performed is seasonal in nature and the employment is for the duration of the season.

"An employment shall be deemed to be casual if it is not covered by the preceding paragraph:
Provided, That, any employee who has rendered at least one year of service, whether such service is
continuous or broken, shall be considered as regular employee with respect to the activity in which he
is employed and his employment shall continue while such activity exists."

The test of whether an employee is regular was laid down in De Leon v. NLRC , 14 in which this Court held:

"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 the 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 one 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."

Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent
bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. Thus, the
following twenty-seven petitioners should be deemed regular employees: Marites Bernardo, Elvira Go Diamante,
Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P.
Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela,
Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma
Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo.
Cdpr

As held by the Court, "Articles 280 and 281 of the Labor Code put an end to the pernicious practice of making
permanent casuals of our lowly employees by the simple expedient of extending to them probationary appointments,
ad infinitum." 15 The contract signed by petitioners is akin to a probationary employment, during which the bank
determined the employees' fitness for the job. When the bank renewed the contract after the lapse of the six-month
probationary period, the employees thereby became regular employees. 16 No employer is allowed to determine
indefinitely the fitness of its employees.

As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may
be terminated only for a just or authorized cause. Because respondent failed to show such cause, 17 these twenty-seven
petitioners are deemed illegally dismissed and therefore entitled to back wages and reinstatement without loss of
seniority rights and other privileges. 18 Considering the allegation of respondent that the job of money sorting is no
longer available because it has been assigned back to the tellers to whom it originally belonged, 19 petitioners are
hereby awarded separation pay in lieu of reinstatement. 20

Because the other sixteen worked only for six months, they are not deemed regular employees and hence not
entitled to the same benefits.

Applicability of the Brent Ruling

Respondent bank, citing Brent School v. Zamora, 21 in which the Court upheld the validity of an employment
contract with a fixed term, argues that the parties entered into the contract on equal footing. It adds that the petitioners
had in fact an advantage, because they were backed by then DSWD Secretary Mita Pardo de Tavera and Representative
Arturo Borjal.

We are not persuaded. The term limit in the contract was premised on the fact that the petitioners were
disabled, and that the bank had to determine their fitness for the position. Indeed, its validity is based on Article 80 of
the Labor Code. But as noted earlier, petitioners proved themselves to be qualified disabled persons who, under the
Magna Carta for Disabled Persons, are entitled to terms and conditions of employment enjoyed by qualified able-bodied
individuals; hence, Article 80 does not apply because petitioners are qualified for their positions. The validation of the
limit imposed on their contracts, imposed by reason of their disability, was a glaring instance of the very mischief sought
to be addressed by the new law.

Moreover, it must be emphasized that a contract of employment is impressed with public interest. 22 Provisions
of applicable statutes are deemed written into the contract, and the "parties are not at liberty to insulate themselves
and their relationships from the impact of labor laws and regulations by simply contracting with each other." 23 Clearly,
the agreement of the parties regarding the period of employment cannot prevail over the provisions of the Magna Carta
for Disabled Persons, which mandate that petitioners must be treated as qualified able-bodied employees. Cdpr

Respondent's reason for terminating the employment of petitioners is instructive. Because the Bangko Sentral
ng Pilipinas (BSP) required that cash in the bank be turned over to the BSP during business hours from 8:00 a.m. to 5:00
p.m., respondent resorted to nighttime sorting and counting of money. Thus, it reasons that this task "could not be done
by deaf mutes because of their physical limitations as it is very risky for them to travel at night." 24 We find no basis for
this argument. Travelling at night involves risks to handicapped and able-bodied persons alike. This excuse cannot justify
the termination of their employment.

Other Grounds Cited by Respondent

Respondent argues that petitioners were merely "accommodated" employees. This fact does not change the
nature of their employment. As earlier noted, an employee is regular because of the nature of work and the length of
service, not because of the mode or even the reason for hiring them.

Equally unavailing are private respondent's arguments that it did not go out of its way to recruit petitioners, and
that its plantilla did not contain their positions. In L. T . Datu v. NLRC, 25 the Court held that "the determination of
whether employment is casual or regular does not depend on the will or word of the employer, and the procedure of
hiring . . . but on the nature of the activities performed by the employee, and to some extent, the length of performance
and its continued existence."

Private respondent argues that the petitioners were informed from the start that they could not become regular
employees. In fact, the bank adds, they agreed with the stipulation in the contract regarding this point. Still, we are not
persuaded. The well-settled rule is that the character of employment is determined not by stipulations in the contract,
but by the nature of the work performed. 26 Otherwise, no employee can become regular by the simple expedient of
incorporating this condition in the contract of employment.

In this light, we iterate our ruling in Romares v. NLRC : 27

"Article 280 was emplaced in our statute books to prevent the circumvention of the
employee's right to be secure in his tenure by indiscriminately and completely ruling out all written
and oral agreements inconsistent with the concept of regular employment defined therein. Where an
employee has been engaged to perform activities which are usually necessary or desirable in the usual
business of the employer, such employee is deemed a regular employee and is entitled to security of
tenure notwithstanding the contrary provisions of his contract of employment. cda
 "xxx xxx xxx

"At this juncture, the leading case of Brent School, Inc. v. Zamora proves instructive. As
reaffirmed in subsequent cases, this Court has upheld the legality of fixed-term employment. It ruled
that the decisive determinant in 'term employment' should not be the activities that the employee is
called upon to perform but the day certain agreed upon the parties for the commencement and
termination of their employment relationship. But this Court went on to say that where from the
circumstances it is apparent that the periods have been imposed to preclude acquisition of tenurial
security by the employee, they should be struck down or disregarded as contrary to public policy and
morals."

In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working class,
but also the concern of the State for the plight of the disabled. The noble objectives of Magna Carta for Disabled Persons
are not based merely on charity or accommodation, but on justice and the equal treatment of qualified persons,
disabled or not. In the present case, the handicap of petitioners (deaf-mutes) is not a hindrance to their work. The
eloquent proof of this statement is the repeated renewal of their employment contracts. Why then should they be
dismissed, simply because they are physically impaired? The Court believes, that, after showing their fitness for the work
assigned to them, they should be treated and granted the same rights like any other regular employees.

In this light, we note the Office of the Solicitor General's prayer joining the petitioners' cause. 28

WHEREFORE, premises considered, the Petition is hereby GRANTED. The June 20, 1995 Decision and the August
4, 1995 Resolution of the NLRC are REVERSED and SET ASIDE. Respondent Far East Bank and Trust Company is hereby
ORDERED to pay back wages and separation pay to each of the following twenty-seven (27) petitioners, namely, Marites
Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez,
Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino
Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret
Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth
Ventura and Grace S. Pardo. The NLRC is hereby directed to compute the exact amount due each of said employees,
pursuant to existing laws and regulations, within fifteen days from the finality of this Decision. No costs. LibLex

SO ORDERED

||| (Bernardo v. National Labor Relations Commission, G.R. No. 122917, [July 12, 1999], 369 PHIL 443-464)