1. Orozco vs.
Fifth Division of the Court of Appeals these in writing her column was not subject to dictation by
Facts:
PDI engaged the services of Orozco to write a weekly
column for its Lifestyle section. She religiously submitted her
articles except for a 6-month stint when she went to NY City.
Nevertheless, she continued to send her articles through mail.
She also received compensation for every column that was
published.
When Orozco’s column appeared in the newspaper for
the last time, her editor, Logarta, told her that the PDI’s editor-in-
chief, Magsanoc, wanted to stop publishing her columns for no
reason at all and advised her to talk to the editor-in-chief. When
Orozco talked to Magsanoc, the latter told her that it was the PDI
chairperson who wanted to stop the publication of her column.
However, when Orozco talked to Apostol, the latter told her that
Magsanoc informed her that the Lifestyle section had already
many columnists.
PDI claims that Magsanoc met with the editor of the
Lifestyle section to discuss how to improve said section. They
agreed to cut down the number of columnists by keeping only
those whose columns were well-written, with regular feedback
and following. In their judgment, petitioner’s column failed to
improve, continued to be superficially and poorly written, and
failed to meet the high standards of the newspaper. Hence, they
decided to terminate petitioner’s column.
Orozco filed a complaint for illegal dismissal. The LA
decided in favor of petitioner. On appeal, the NLRC dismissed
the appeal and affirmed the LA’s decision. The CA on the other
hand, set aside the NLRC’s decision and dismissed Orozco’s
complaint.
Issue:
Whether petitioner is an employee of PDI.
Whether petitioner was illegally dismissed.
Decision:
Petition dismissed. Judgment and Resolution affirmed.
Applying the four-fold test, the Court held that PDI
lacked control over the petitioner. Though PDI issued guidelines
for the petitioner to follow in the course of writing her columns,
careful examination reveals that the factors enumerated by the
petitioner are inherent conditions in running a newspaper. In
other words, the so-called control as to time, space, and
discipline are dictated by the very nature of the newspaper
business itself. Aside from the constraints presented by the
space allocation of her column, there were no restraints on her
creativity; petitioner was free to write her column in the manner
and style she was accustomed to and to use whatever research
method she deemed suitable for her purpose. The apparent
limitation that she had to write only on subjects that befitted the
Lifestyle section did not translate to control, but was simply a
logical consequence of the fact that her column appeared in that
section and therefore had to cater to the preference of the
readers of that section.
Orozco in this case is considered as an independent
contractor. As stated in the case of Sonza vs. ABS-CBN,
independent contractors often present themselves to possess
unique skills, expertise or talent to distinguish them from ordinary
employees. Like the petitioner in the cited case, Petitioner was
engaged as a columnist for her talent, skill, experience, and her
unique viewpoint as a feminist advocate. How she utilized all
respondent. As in Sonza, respondent PDI was not involved in the
actual performance that produced the finished product. It only
reserved the right to shorten petitioner’s articles based on the
newspaper’s capacity to accommodate the same. This fact was
not unique to petitioner’s column. It is a reality in the newspaper
business that space constraints often dictate the length of
articles and columns, even those that regularly appear therein.
Furthermore, respondent PDI did not supply petitioner with
the tools and instrumentalities she needed to perform her work.
Petitioner only needed her talent and skill to come up with a
column every week. As such, she had all the tools she needed to
perform her work. Hence, since Orozco is not an employee of
PDI, the latter cannot be held guilty of illegally dismissing the
petitioner.
2. Meralco Industrial Engineering Services, Co., vs. NLRC
Facts:
Meralco and the private respondent executed a contract
where the latter would supply the petitioner janitorial services,
which include labor, materials, tools and equipment, as well as
supervision of its assigned employees, at Meralco’s Rockwell
Thermal Plant in Makati City.
The 49 employees lodged a Complaint for illegal
deduction, underpayment, non-payment of overtime pay, legal
holiday pay, premium pay for holiday and rest day and night
differentials against the private respondent before the LA.
By virtue of RA 6727, the contract between Meralco and
the private respondent was amended to increase the minimum
daily wage per employee. 2 months after the amendment of the
contract, Meralco sent a letter to private respondent informing
them that at the end of business hours of Jan. 31, 1990, it would
be terminating contract entered into with the private
respondents. On the said date, the complainants were pulled out
from their work. The complainants amended their complaint to
include the charge of illegal dismissal and to implead Meralco as
a party respondent.
The LA dismissed the complaint. On appeal, the NLRC
affirmed the decision of the LA with the modification that Meralco
was solidarily liable with the private respondents. The CA on the
other hand, modified the Decision of the NLRC and held Meralco
to be solidarily liable with the private respondent for the
satisfaction of the laborer’s separation pay.
Issue:
Whether Meralco should be liable for the payment of
the dismissed laborer’s separation pay.
Decision:
Petition GRANTED, Judgment and Resolution
Reversed and SET ASIDE.
The CA used Art. 109 of the Labor Code to hold
Meralco solidarily liable with the private respondent as regard to
the payment of separation pay. However, the SC ruled that Art.
109 should be read in relation to Art. 106 and 107 of the LC.
Thus, an indirect employer can only be held liable with the
independent contractor or subcontractor in the event that the
latter fails to pay the wages of its employees. While it is true that
the petitioner was the indirect employer of the complainants, it
cannot be held liable in the same way as the employer in every
respect. Meralco may be considered an indirect employer only
for purposes of unpaid wages.
The only instance when the principal can also be held
liable with the independent contractor or subcontractor for the
backwages and separation pay of the latter’s employees is when
there is proof that the principal conspired with the independent
contractor or subcontractor in the illegal dismissal of the
employees. In the present case, there is no allegation, much less
proof presented, that the petitioner conspired with private
respondents in the illegal dismissal of the latter’s employees;
hence, it cannot be held liable for the same.
Neither can the liability for the separation pay of the
complainants be extended to the petitioner based on contract.
Contract Order No. 166-84 executed between the petitioner and
the private respondents contains no provision for separation pay
in the event that the petitioner terminates the same. It is basic
that a contract is the law between the parties and the stipulations
therein, provided that they are not contrary to law, morals, good
customs, public order or public policy, shall be binding as
between the parties. Hence, if the contract does not provide for
such a liability, this Court cannot just read the same into the
contract without possibly violating the intention of the parties.
Although petitioner is not liable for complainants’
separation pay, the Court conforms to the consistent findings in
the proceedings below that the petitioner is solidarily liable with
the private respondents for the judgment awards for
underpayment of wages and non-payment of overtime pay.
In this case, however, private respondents had already
posted a surety bond in an amount sufficient to cover all the
judgment awards due the complainants, including those for
underpayment of wages and non-payment of overtime pay. The
joint and several liability of the principal with the contractor and
subcontractor were enacted to ensure compliance with the
provisions of the Labor Code, principally those on statutory
minimum wage. This liability facilitates, if not guarantees,
payment of the workers’ compensation, thus, giving the workers
ample protection as mandated by the 1987 Constitution. With
private respondents’ surety bond, it can therefore be said that
the purpose of the Labor Code provision on the solidary liability
of the indirect employer is already accomplished since the
interest of the complainants are already adequately protected.
Consequently, it will be futile to continuously hold the petitioner
jointly and solidarily liable with the private respondents for the
judgment awards for underpayment of wages and non-payment
of overtime pay.
But while this Court had previously ruled that the
indirect employer can recover whatever amount it had paid to the
employees in accordance with the terms of the service contract
between itself and the contractor, the said ruling cannot be
applied in reverse to this case as to allow the private
respondents (the independent contractor), who paid for the
judgment awards in full, to recover from the petitioner (the
indirect employer).
3. Aklan vs. San Miguel Corporation
573 SCRA 675
Facts:
BMA is a corporation eganged in the business of
transporting and hauling of cargoes, goods and commodities
with a business address at San Miguel Corporation's warehouse
in Pasig City. Aklan, together with the others, on the other hand
are employees of BMA hired under fixed-term contracts.
Petitioners went to DOLE's District Office to file a
complaint against BMA for underpayment of wages and non-
payment of premium pay for rest day, 13th month pay, and
service incentive leave pay.
One of tha petitioners (Caboteja) was charged with
insubordination and direspect to superior, failure to properly
perform his job assignment and unauthorized change of
schedule. Caboteja was asked to submit his explanation but was
nevertheless terminated from his job for the offenses of
disregard of company rules and regulations and rude attitude to
supervisors. On a later date, Dumalagan and Salvador were also
terminated for failure to perform their job responsibilities. The
three filed for a complaint for illegal dismissal.
On another incident, several other employees staged a
picket at the warehouse to protest BMA's refusal to pay the claim
for underpayment of the rest of the workers. Because of the said
picket, the business operations of BMA was disrupted and
caused the latter to terminate the services of those employees
who participated in the picket. Another case for illegal dismissal
was filed against BMA which all later on were consolidated.
Petitioners allege that BMA is a labor-only contractor.
They further allege that SMC was not only the owner of the
warehouse and equipment being used by BMA but that SMC
was their true employer. Lastly, they raise the fact that the
manner and means by which they perform their work were
controlled by SMC.
On its part, SMC argued that it had no er-ee
relationship with petitioners who were hired and supervised
exclusively by BMA pursuant to a warehousing and delivery
agreement in consideration of a fixed montly fee. SMC argued
that BMA is a legitimate and independent contractor, duly
registered with SEC as a aseparate and distinct corporation withj
substantial capitalization, incvestment, equipment and tools. It
also submitted documentary evidence proving that BMA
engaged services of petitioners, paid for their wages and
benefits and exercised exclusive contorl and supervision over
them.
The LA held that there was illegal dismissal and
ordered for the reinstatement of the petitioners but found that the
evidence presented duly established that BMA was a legitimate
independent contractor and the actual employer of pertitioners.
However, due to its failure to comply with the registration and
reportorial requirements of DOLE, SMC was held to be the
principal and to be directly liable to the claims of petitioners.
BMA and SMC were found by the LA as jointly and severally
liable for the payment of the backwages and money claims of the
petitioners.s
The NLRC reversed the decision of the Labor Arbiter
and ruled that there was no illegal dismissal which was affirmed
in toto by the Court of Appeals.
Issue:
Is SMC the real employer of the petitioners?
Held:
A finding that a contractor is a “labor-only” contractor, as
opposed to permissible job contracting, is equivalent to declaring
that there is an employer-employee relationship between the
principal and the employees of the supposed contractor, and the
“labor-only” contractor is considered as a mere agent of the
principal, the real employer. Both the LA and the NLRC found
that the employment contracts of petitioners duly prove that and
er-ee relationship existed between petitioners and BMA.
In its ruling, the NLRC considered the following
elements to determine the existence of an employer-employee
relationship: (1) the selection and engagement of the workers;
(2) power of dismissal; (3) the payment of wages by whatever
means; and (4) the power to control the worker’s conduct. All
four elements were found by the NLRC to be vested in BMA.
This NLRC finding was affirmed by the CA:
x x x It is the BMA which actually conducts the hauling, storage,
handling, transporting, and delivery operations of SMC’s
products pursuant to their warehousing and Delivery Agreement.
BMA itself hires and supervises its own workers to carry out the
aforesaid business activities. Apart from the fact that it was BMA
which paid for the wages and benefits, as well as SSS
contributions of petitioners, it was also the management of BMA
which directly supervised and imposed disciplinary actions on
the basis of established rules and regulations of the company.
The documentary evidence consisting of numerous memos
throughout the period of petitioners’ employment leaves no doubt
in the mind of this Court that petitioners are only too aware of
who is their true employer. Petitioners received daily instructions
on their tasks form BMA management, particularly, private
respondent Arlene C. Eusebio, and whenever they committed
lapses or offenses in connection with their work, it was to said
officer that they submitted compliance such as written
explanations, and brought matters connected with their specific
responsibilities.
The employer-employee relationship between BMA and
petitioners is not tarnished by the absence of registration with
DOLE as an independent job contractor on the part of BMA. The
absence of registration only gives rise to the presumption that
the contractor is engaged in labor-only contracting, a
presumption that respondent BMA ably refuted. While labor
should be protected at all times, this protection must not be at
the expense of capital.
Petition was denied and decision of the Court of
Appeals was affirmed.
4. Equipment Technical Services (ETS) vs. Court of Appeals
568 SCRA 122
Facts:
ETS is primarily engaged in the business of sub-
contracting plumbing woks of on-going building construction.
Among its clients was Uniwide. On various occasions involving
different projects, ETS hired the services of private respondents
as pipe fitters, plumbers or threaders.
ETS experienced financial difficulties when its client,
Uniwide, failed to pay the forner for the plumbing work being
done at Uniwide's Coastal Mall. As a result, ETS was only able
to pay its employees 13th months pay equivalent to two weeks'
salary. Due to non-payment of the balance of the employees 13 th
month pay, they filed a complaint before the NLRC against ETS.
A complaint for illegal dismissal and payment of money claims
were later on filed against ETS when they were refused work in
another ETS project (Richville Project) on the ground that they
refused to sign individual employement conracts with ETS.
The dismissed employees raised that they were regular
employees of ETS. ETS, however counters such claim and said
that the dismissed employees were only contractual/project
employees engaged for different projects of the company and
that they were not illegally dismissed as they were hired on a per
project basis.
The LA held that the dismissed employees were regular
employees of ETS and not only contractual or project-based
employees and that there was illegal dismissal. The NLRC
reversed the decision of the LA and that there was no illegal
dismissal.
Issue:
Are the respondent's regular employees of ETS?
Held:
The principal test for determining whether an employee
is properly characterized as “project employee,” as distinguished
from “regular employee,” is whether or not “the project
employee” was assigned to carry out “a specific project or
undertaking,” the duration and scope of which were specified at
the time the employees were engaged for that project. And as
Article 280 of the Labor Code, defining a regular employee vis-à-
vis a project employee, would have it:
Art. 280. Regular and casual
employment. – The provisions of written
agreement to the contrary notwithstanding and
regardless of the oral agreement of the parties,
an employment shall be deemed to be regular
where the employee has been engaged to
perform activities which are usually necessary
or desirable in the usual business or trade of
the employer, except where the employment
has been fixed for a specific project or
undertaking the completion or termination of
which has been determined at the time of the
engagement of the employee x x x.
It bears to stress at the outset that ETS admits hiring or
employing private respondents to perform plumbing works for
various projects. Given this postulate, regular employment may
reasonably be presumed and it behooves ETS to prove
otherwise, that is, that the employment in question was
contractual in nature ending upon the expiration of the term fixed
in the contract or for a specific project or undertaking. But the
categorical finding of the CA, confirmatory for the most part of
that of the labor arbiter, is that not a single written contract of
employment fixing the terms of employment for the duration of
the Uniwide project, or any other project, was submitted by ETS
despite the latter’s allegations that private respondents were
merely contractual employees. Records of payroll and other
pertinent documents, such as job contracts secured by ETS
showing that private respondents were hired for specific projects,
were also not submitted by ETS.
Moreover, if private respondents were indeed employed
as project employees, petitioners should have had submitted a
report of termination every time their employment was
terminated owing to the completion of each plumbing project. As
correctly held by the CA in its Amended Decision, citing Tomas
Lao Construction v. NLRC, ETS’ failure to report the employment
termination and file the necessary papers after every project
completion tends to support the claim of private respondents
about their not being project employees. Under Policy Instruction
No. 20, Series of 1977, the report must be made to the nearest
public office employment.
Private respondents may have initially been hired for
specific projects or undertaking of petitioner ETS and, hence,
may be classified as project employees. Their repeated rehiring
to perform tasks necessary to the usual trade or business of ETS
changed the legal situation altogether, for in the later instance,
their continuous rehiring took them out from the scope of
workers coterminus with specific projects and had made them
regular employees.
Parenthetically, petitioners’ assertion that there can be
no illegal dismissal of project employees inasmuch as they are
not entitled to security of tenure is inaccurate. The
constitutionally-protected right of labor to security of tenure
covers both regular and project workers. Their termination must
be for lawful cause and must be done in a way which affords
them proper notice and hearing.
Decision of the Labor Arbiter was affirmed and ordered
ETS to reinstate respondents to their former positions, without
loss of rank and seniority rights with backwages from the date of
dismissal until reinstated.
5. Woodridge School vs. Benito and Balaguer | Nachura
G.R. No. 160240, October 29, 2008 |570 SCRA 164
PROBATIONARY EMPLOYMENT; SECURITY OF TENURE
FACTS
 Woodridge School, a private educational institution,
hired Benito and Balaguer as probationary school
teachers effective June 1998 and June 1999.
 Sometime February 2001, the respondents, along with
20 other teachers presented Woodridge a Manifesto
Establishing Relevant Issues Concerning the School.
Some issues raised were with regard to an NSAT/NEAT
anomaly, Teacher’s right to due process, Issuance of
Individual Contracts and Non-Clear-Cut School Policies.
 A confrontation between the school administrators and
concerned teachers was held but no settlement was
arrived at.
 For failure to resolve the issues, especially the one with
regard to the NSAT/NEAT anomaly, the respondents
filed a formal complaint against Woodridge with the
DECS, requesting for a formal investigation, institute
appropriate charges, and impose proper sanctions
against Woodridge.
 During the pendency of the DECS case, and for lack of
a positive action from Woodridge, respondents
appeared on television and spoke over the radio on the
alleged NEAT/NSAT anomaly.
 February 28, 2001, Woodridge sent 2 separate memos
to respondents placing them under preventive
suspension for a period of thirty days on the following
grounds: 1) uttering defamatory remarks against the
school principal in the presence of their co-teachers; 2)
announcing to the students and teachers their alleged
immediate termination from service; 3) tardiness; 4)
spreading false accusations against petitioner; 5)
absence without official leave; and 6) appearing on
television and speaking over the radio to malign
petitioner. In the same memoranda, respondents were
required to explain in writing within seventy-two (72)
hours why they should not be terminated from their
employment. This prompted respondents to commence
an action for illegal suspension before the NLRC.
 The respondents then filed for illegal suspension before
the NLRC
 Barely a month after, Woodridge issued the
respondents their Notice of Termination citing the same
grounds. In addition, they informed the respondents
that they did not qualify as regular employees for their
failure to meet the performance standards made known
to them at the start of their probationary period.
 The respondents then amended their initial complaint to
include illegal dismissal.
 LA dismissed their complaint. The NLRC affirmed the
LA’s disposition in its entirety. The CA granted the
petition and set aside the NLRC ruling. It ruled that the
30 day suspension as illegal and ordered the school to
pay both Benito and Balaguer their salaries and
benefits accruing during said period of illegal
suspension. Woodridge was also ordered to pay
Balaguer backwages and each of them P50,000 as
moral damages and P50,000 as exemplary damages
and attorney’s fees.
ISSUES
W/N THE DISMISSAL OF THE RESPONDENTS WAS VALID
SINCE AS PROBATIONARY EMPLOYEES, THE EMPLOYER
MAY TERMINATE THE EMPLOYMENT
W/N THEY MAY BE DISMISSED ON THE GROUND OF
SERIOUS MISCONDUCT.
W/N THE PREVENTIVE SUSPENSION WAS VALID
W/N THE AWARD OF MORAL AND EXEMPLARY DAMAGES
HAVE SUFFICIENT BASIS TO SUPPORT THE AWARD
HOLDING & RATIO
No, the dismissal of the respondents was not valid. It is
necessary that the employer terminates the employment on
justifiable ground.
 On the effective date of their dismissal, respondents
were not regular or permanent employees; they had not
yet completed three (3) years of satisfactory service as
academic personnel which would have entitled them to
tenure as permanent employees in accordance with the
Manual of Regulations for Private Schools. On that
date, Benito’s contract of employment still had two
months to run, while Balaguer’s probationary
employment was to expire after one year and two
months.
 A probationary employee is one who, for a given period
of time, is being observed and evaluated to determine
whether or not he is qualified for permanent
employment. A probationary appointment affords the
employer an opportunity to observe the skill,
competence and attitude of a probationer. The word
“probationary,” as used to describe the period of
employment, implies the purpose of the term or period.
While the employer observes the fitness, propriety and
efficiency of a probationer to ascertain whether he is
qualified for permanent employment, the probationer at
the same time, seeks to prove to the employer that he
has the qualifications to meet the reasonable standards
for permanent employment.
 Probationary employees enjoy security of tenure in the
sense that during their probationary employment, they
cannot be dismissed except for cause or when he fails
to qualify as a regular employee. However, upon
expiration of their contract of employment, probationary
employees cannot claim security of tenure and compel
their employers to renew their employment contracts.
There is nothing that would hinder the employer from
extending a regular or permanent appointment to an
employee once the employer finds that the employee is
qualified for regular employment even before the
expiration of the probationary period
 The notices of termination sent by Woodridge to
respondents stated that the latter failed to qualify as
regular employees. However, nowhere in the notices
did petitioner explain the details of said “failure to
qualify” and the standards not met by respondents.
No, they may not be dismissed on the ground of serious
misconduct.
 The Labor Code commands that before an employer
may legally dismiss an employee from the service, the
requirement of substantial and procedural due process
must be complied with. Under the requirement of
substantial due process, the grounds for termination of
employment must be based on just or authorized
causes.
 Petitioner anchored its imputation of serious misconduct
principally on the respondents’ expose of the
NSAT/NEAT anomaly.
 Misconduct is defined as improper or wrong conduct. It
is the transgression of some established and definite
rule of action, a forbidden act, a dereliction of duty,
willful in character, and implies wrongful intent and not
mere error of judgment. The misconduct to be serious
 within the meaning of the Act, must be of such a grave
and aggravated character and not merely trivial or
unimportant. Such misconduct, however serious, must
nevertheless be in connection with the work of the
employee to constitute just cause for his separation. It
is not sufficient that the act or conduct complained of
has violated some established rules or policies. It is
equally important and required that the act or conduct
must have been performed with wrongful intent.
 As correctly observed by the CA, the tenor of the
manifesto indicated good faith, as the teachers, in fact,
expressly stated that their ultimate objective was not to
put the school down, but to work for some changes
which would be beneficial to the students, teachers, the
school and the country as a whole. The chronology of
events, therefore, supports the view that respondents’
suspension and eventual dismissal from service were
tainted with bad faith, as obvious retaliatory acts on the
part of Woodridge.
 The totality of the acts of respondents cannot be
characterized as “misconduct” under the law, serious
enough to warrant the severe penalty of dismissal. This
is especially true because there is no finding of malice
or wrongful intent attributable to respondents. In light of
this disquisition, it is settled that petitioner failed to
comply with the requirement of substantial due process
in terminating the employment of respondents.
 With regard to the procedural aspect of the case,
respondents were afforded their rights to answer to
petitioner’s allegation and were given the opportunity to
present evidence in support of their defense. However,
the SC still finds that the dismissal is illegal, because of
petitioner’s failure to satisfy the substantive aspect.
No, their preventive suspension was illegal.
 While the employer may place the worker concerned
under preventive suspension, it can do so only if the
latter’s continued employment poses a serious and
imminent threat to the life or property of the employer or
of his co-workers. The grounds relied upon by
Woodridge do not show that their employment poses a
threat to the employer or other co-workers.
 As probationary employees, respondents’ security of
tenure is limited to the period of their probation – for Pe
Benito, until June 2001 and for Balaguer, June 2002.
As they were no longer extended new appointments,
they are not entitled to reinstatement and full
backwages. Rather, Pe Benito is only entitled to her
salary for her 30-day preventive suspension. As to
Balaguer, in addition to his 30-day salary during his
illegal preventive suspension, he is entitled to his
backwages for the unexpired term of his contract of
probationary employment.
YES, there is enough basis to support the award of damages.
 A dismissed employee is entitled to moral damages
when the dismissal is attended by bad faith or fraud; or
constitutes an act oppressive to labor; or is done in a
manner contrary to good morals, good customs or
public policy. Exemplary damages, on the other hand,
may be awarded if the dismissal is effected in a wanton,
oppressive or malevolent manner. The award of said
damages cannot be justified solely upon the premise
that the employer fired his employee without just cause
or due process. It is necessary that additional facts be
pleaded and proven that the act of dismissal was
attended by bad faith, fraud, et al., and that social
humiliation, wounded feelings and grave anxiety
resulted therefrom.
 The SC finds that the award of the damages proper.
6a. MICHAEL J. LAGROSAS, PETITIONER, VS.
BRISTOL-MYERS SQUIBB (PHIL.), INC./MEAD
JOHNSON PHIL., RICHARD SMYTH AS GENERAL
MANAGER AND FERDIE SARFATI, AS MEDICAL
SALES DIRECTOR, RESPONDENTS.
FACTS: Michael J. Lagrosas was employed by Bristol-Myers
Squibb Inc. as Territory Manager in its Medical Sales Force
Division.
Ma. Dulcinea S. Lim, also a Territory Manager and Lagrosas'
former girlfriend, attended a district meeting of territory
managers at McDonald's Alabang Town Center. After the
meeting, she dined out with her friends. She left her car at
McDonald's and rode with Cesar R. Menquito, Jr. When they
returned to McDonald's, Lim saw Lagrosas' car parked beside
her car. Lim told Menquito not to stop his car but Lagrosas
followed them and slammed Menquito's car thrice. Menquito and
Lim alighted from the car. Lagrosas approached them and hit
Menquito with a metal steering wheel lock. When Lim tried to
intervene, Lagrosas accidentally hit her head.
Respondent company dismissed petitioner, hence the
latter filed a complaint for illegal dismissal.
The LA held that the dismissal was illegal, stating that
while Lagrosas committed a misconduct, it was not connected
with his work. The incident occurred outside of company
premises and office hours. He also observed that the misconduct
was not directed against a co-employee who just happened to
be accidentally hit in the process.
On appeal, the NLRC reversed the ruling of the LA. It held that
Lagrosas was validly dismissed for serious misconduct in hitting
his co-employee and another person with a metal steering wheel
lock. The gravity and seriousness of his misconduct is clear from
the fact that he deliberately waited for Lim and Menquito to
return to McDonald's. The NLRC also ruled that the misconduct
was committed in connection with his duty as Territory Manager
since it occurred immediately after the district meeting of territory
managers. However, it was reversed by the NLRC.
On appeal to the CA,it considered the misconduct as having
been committed in connection with Lagrosas' duty as Territory
Manager since it occurred immediately after the district meeting
of territory managers. It also held that the gravity and
seriousness of the misconduct cannot be denied. Lagrosas
employed such a degree of violence that caused damage not
only to Menquito's car but also physical injuries to Lim and
Menquito.
ISSUE: w/o LAgrosas dismissal legal?
HELD: serious misconduct as a valid cause for the dismissal of
an employee is defined simply as improper or wrong conduct. It
is a transgression of some established and definite rule of action,
a forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error of judgment. To be
serious within the meaning and intendment of the law, the
misconduct must be of such grave and aggravated character
and not merely trivial or unimportant. However serious such
misconduct, it must, nevertheless, be in connection with the
employee's work to constitute just cause for his separation. The
act complained of must be related to the performance of the
employee's duties such as would show him to be unfit to
continue working for the employer.
Thus, for misconduct or improper behavior to be a just cause for
dismissal, it (a) must be serious; (b) must relate to the
performance of the employee's duties; and (c) must show that
the employee has become unfit to continue working for the
employer.
Tested against the foregoing standards, it is clear that Lagrosas
was not guilty of serious misconduct. It may be that the injury
sustained by Lim was serious since it rendered her unconscious
and caused her to suffer cerebral contusion that necessitated
hospitalization for several days. But we fail to see how such
misconduct could be characterized as work-related and reflective
of Lagrosas' unfitness to continue working for Bristol-Myers.
Although we have recognized that fighting within company
premises may constitute serious misconduct, we have also held
that not every fight within company premises in which an
employee is involved would automatically warrant dismissal from
service. More so, in this case where the incident occurred
outside of company premises and office hours and not
intentionally directed against a co-employee, as hereafter
explained.
First, the incident occurred outside of company premises and
after office hours since the district meeting of territory managers
which Lim attended at McDonald's had long been finished.
McDonald's may be considered an extension of Bristol-Myers'
office and any business conducted therein as within office hours,
but the moment the district meeting was concluded, that ceased
too. When Lim dined with her friends, it was no longer part of the
district meeting and considered official time. Thus, when
Lagrosas assaulted Lim and Menquito upon their return, it was
no longer within company premises and during office hours.
Second, Bristol-Myers itself admitted that Lagrosas intended to
hit Menquito only. In the Memorandum it was stated that "You got
out from your car holding an umbrella steering wheel lock and
proceeded to hit Mr. Menquito. Dulce tried to intervene, but you
accidentally hit her on the head, knocking her unconscious."
Indeed, the misconduct was not directed against a co-employee
who unfortunately got hit in the process. Third, Lagrosas was not
performing official work at the time of the incident. He was not
even a participant in the district meeting. Hence, we fail to see
how his action could have reflected his unfitness to continue
working for Bristol-Myers.
In light of Bristol-Myers' failure to adduce substantial evidence to
prove that Lagrosas was guilty of serious misconduct, it cannot
use this ground to justify his dismissal. Thus, the dismissal of
Lagrosas' employment was without factual and legal basis.
6b. R.B. MICHAEL PRESS and ANNALENE REYES
ESCOBIA, Petitioners, vs. NICASIO C. GALIT,
Respondent
FACTS: respondent was employed by petitioner R.B. Michael
Press as an offset machine operator.Respondent was ordered to
render overtime service in order to comply with a job order
deadline, but he refused to do so. The following day, respondent
reported for work but petitioner Escobia told him not to work, and
to return later in the afternoon for a hearing. When he returned, a
copy of an Office Memorandum was served on him, as follows:
This warning for dismissal is being issued for the following
offenses:
(1) habitual and excessive tardiness
(2) committing acts of discourtesy, disrespect in addressing
superiors
(3) failure to work overtime after having been instructed to do so
(4) Insubordination - willfully disobeying, defying or disregarding
company authority
The offenses you’ve committed are just causes for
termination of employment as provided by the Labor Code. You
were given verbal warnings before, but there had been no
improvement on your conduct.
Further investigation of this matter is required, therefore, you are
summoned to a hearing
Subsequently, respondent was terminated from employment.
Hence the latter filed a complaint for illegal dismissal
The labor arbiter rendered a decision finding that complainant
was illegally dismissed.
On appeal, NLRC affirmed the LA decision.
On appeal to the CA,it held that it was not the tardiness and
absences committed by respondent, but his refusal to render
overtime work which caused the termination of his employment
ISSUES: whether there was just cause to terminate the
employment of respondent.
HELD: SC held that there was a valid dismissal. Stating
that while the CA is correct that the charge of serious
misconduct was not substantiated, the charge of insubordination
however is meritorious.
For willful disobedience to be a valid cause for dismissal, these
two elements must concur: (1) the employee’s assailed
conduct must have been willful, that is, characterized by a
wrongful and perverse attitude; and (2) the order violated must
have been reasonable, lawful, made known to the employee,
and must pertain to the duties which he had been engaged to
discharge.
In the present case, there is no question that petitioners order for
respondent to render overtime service to meet a production
deadline complies with the second requisite. Art. 89 of the Labor
Code empowers the employer to legally compel his employees
to perform overtime work against their will to prevent serious loss
or damage:
Art. 89. EMERGENCY OVERTIME WORK
Any employee may be required by the employer to perform
overtime work in any of the following cases:
xxxx
(c) When there is urgent work to be performed on machines,
installations, or equipment, in order to avoid serious loss or
damage to the employer or some other cause of similar nature;
xxxx
In the present case, petitioners business is a printing press
whose production schedule is sometimes flexible and varying. It
is only reasonable that workers are sometimes asked to render
overtime work in order to meet production deadlines.
Dennis Reyes, in his Affidavit stated that he approached and
asked respondent to render overtime work so as to meet a
production deadline on a printing job order, but respondent
refused to do so for no apparent reason. Respondent, on the
other hand, claims that the reason why he refused to render
overtime work was because he was not feeling well that day.
The issue now is, whether respondents refusal or failure to
render overtime work was willful; that is, whether such refusal or
failure was characterized by a wrongful and perverse attitude. In
Lakpue Drug Inc. v. Belga, willfulness was described as
characterized by a wrongful and perverse mental attitude
rendering the employees act inconsistent with proper
subordination.] The fact that respondent refused to provide
overtime work despite his knowledge that there is a production
deadline that needs to be met, and that without him, the offset
machine operator, no further printing can be had, shows his
wrongful and perverse mental attitude; thus, there is willfulness.
Respondents excuse that he was not feeling well that day is
unbelievable and obviously an afterthought. He failed to present
any evidence other than his own assertion that he was sick.
Also, if it was true that he was then not feeling well, he would
have taken the day off, or had gone home earlier, on the
contrary, he stayed and continued to work all day, and even tried
to go to work the next day, thus belying his excuse, which is, at
most, a self-serving statement.
After a re-examination of the facts, we rule that respondent
unjustifiably refused to render overtime work despite a valid
order to do so.
7. Janssen Pharmaceutica vs. Silayro |Chico-Nazario
G.R. No. 172528, February 26, 2008| 546 SCRA 628
JUST CAUSE; DISHONESTY
FACTS
 Janssen Pharmaceutica (JANSSEN) is a division of
Johnson and Johnson Philippines engaged in the sale
and manufacture of pharmaceutical products. In 1989,
Benjamin Silayro (SILAYRO) was hired as
Territory/Medical Representative.
 Sometime 1994, Silayro was found guilty of granting
unauthorized premium/free goods to and unauthorized
pull-outs from customers. JANSSEN failed to attach
records to support its allegations but Silayro admitted to
granting unauthorized goods but vehemently denied
violating the rule on or having been charged with
unauthorized pull-outs.
 Silayro was also investigated for dishonesty in
connection with the Rewards of Learning Test. This
ROL test ROL test is a one-page take-home
examination, with two questions to be answered by an
enumeration of the standards of performance by which
territory representatives are rated as well as the sales
competencies expected of territory representatives. It
was discovered that SILAYRO’s ROL answers were
written by another co-employee, Joedito Gasendo.
 He was then sent subsequent memos:
o July 1998 - A memo requiring an explanation for
the ROL incident.
o August 1998 - A memo requiring Silayro to explain
his delay in submitting process reports
 September 1998 – Silayro submitted an
explanation stating that the delay in the
submission of reports was caused by the
deaths of his grandmother and his aunt, and
the hospitalization of his mother. He also
averred that he had asked his co-employee
Joedito Gasendo to write his answers to the
ROL test because at the time when the
examination was due, he already needed to
leave to see his father-in-law, who was
suffering from cancer and confined in a
hospital in Manila.
o October 20, 1998 – another memo regarding the
discrepancies between the number of product
samples recorded in his Daily/Weekly Coverage
Report (DCR) and the number of product samples
found in his possession during the 14 October
1998 audit. The actual number of sample products
found in his possession exceeded the number of
sample products he reported to JANSSEN.
 Silayro explained, through a "Response Memo" dated
24 October 1998, that he failed to count the quantity of
samples when they were placed in his custody. Thus,
he failed to take note of the excess samples from
previous months. He, likewise, admitted to committing
errors in posting the samples that he distributed to
some doctors during the months of August and
September 1998.
 He was later on issued a Notice of Disciplinary action
upon finding him guilty of the following offenses:
delayed submission of process reports and cheating on
his ROL test. He was subjected to a one day
suspension without pay for each offense.
 On the same day, he was also issued a Notice of
Preventive Suspension for Dishonesty in Accomplishing
other Accountable documents in connection with the
October discrepancy. He was then directed to surrender
the car, promotional materials and all other
accountabilities by Nov. 25, 1998.
 In line with his promise to surrender his accountabilities,
SILAYRO wrote a letter asking his superiors where he
should return his accountabilities but he did not receive
any instructions.
 SILAYRO’s services were later on terminated by
JANSSEN. SILAYRO was found guilty of dishonesty in
that issue of the discrepancy of the samples and failing
to return the company vehicle and other accountabilities
in violation of Sec. 9.5.5 of the Code of Conduct. He
was also found to be a habitual offender.
 SILAYRO later on filed a complaint for unfair labor
practice, illegal dismissal.
 The Labor Arbiter found the penalty of dismissal too
harsh and ordered his reinstatement without payment of
backwages. NLRC declared the reinstatement improper
and that the dismissal was just and authorized. The CA
declared the dismissal illegal, granted reinstatement ,
ordered payment of backwages and if reinstatement is
no longer feasible, payment of separation pay.
ISSUE
W/N THERE WERE SUFFICIENT GROUNDS FOR SILAYRO’S
DISMISSAL.
HOLDING & RATIO
NO, there was no sufficient ground for his dismissal. The SC
affirmed the decision of the CA
 To constitute a valid dismissal from employment, two
requisites must concur: (1) the dismissal must be for
any of the causes provided in Article 282 of the Labor
Code; and, (2) the employee must be given an
opportunity to be heard and to defend himself
 With regard to the issue of his dishonesty in
accomplishing his report on product samples,
JANSSEN failed to present evidence that SILAYRO
was guilty of dishonesty in accomplishing the report. It
 In termination cases, the burden of proof rests with the
employer to show that the dismissal is for just and valid
 cause. Failure to do so would necessarily mean that the
dismissal was not justified and therefore was illegal.
Dishonesty is a serious charge, which the employer
must adequately prove, especially when it is the basis
for termination.
 In this case, JANSSEN had not been able to identify an
act of dishonesty, misappropriation, or any illicit act,
which the respondent may have committed in
connection with the erroneously reported product
samples. JANSSEN merely relied on the fact that the
number of product samples SILAYRO reported was
incorrect. While respondent was admittedly negligent,
his errors alone are insufficient evidence of a dishonest
purpose. Since fraud implies willfulness or wrongful
intent, the innocent non-disclosure of or inadvertent
errors in declaring facts by the employee to the
employer will not constitute a just cause for the
dismissal of the employee. In addition, the subsequent
acts of respondent belie a design to misappropriate
product samples. So as to escape any liability,
SILAYRO could have easily just submitted for audit only
the number of product samples which he reported.
Instead, he brought all the product samples in his
custody during the audit and, afterwards, honestly
admitted to his negligence. Negligence is defined as the
failure to exercise the standard of care that a
reasonably prudent person would have exercised in a
similar situation.
 The SC found that SILAYRO did not commit any willful
violation, rather he merely failed to exercise the
standard care required of a territory representative to
carefully count the number of product samples
delivered to him.
 The gravest charge that SILAYRO faced was cheating
in his ROL test. Although he avers that he formulated
the answers himself and that he merely allowed his co-
employee Joedito Gasendo to write down his answers
for him, the SC found this excuse to be very flimsy. The
ROL test consists of one page and two straightforward
questions, which can be answered by more or less ten
sentences. He could have spared the few minutes it
would take to write the examination. If he had lacked
the time due to a family emergency, a request for an
extension would have been the more reasonable and
honest alternative.
 The improper taking of the ROL test, while it puts into
question the examinee’s moral character, does not
result in any potential loss of property or damage to the
reputation of the employer. The respondent’s ten years
of commendable performance cannot be cancelled out
by a single mistake made during a difficult period of his
life, a mistake that did not pose a potential danger to his
employer.
 SILAYRO’s violations of petitioner’s Code of Conduct,
even if taken as a whole, would not fall under the just
causes of termination provided under Article 282 of the
Labor Code. They are mere blunders, which may be
corrected. JANSSEN failed to point out even a potential
danger that respondent would misappropriate or
improperly dispose of company property placed in his
custody. It had not shown that during his employment,
that SILAYRO took a willfully defiant attitude against it.
It also failed to show a pattern of negligence which
would indicate that he is incapable of performing his
responsibilities. At any other time during his
employment, he had shown himself a commendable
worker.
 Nonetheless, the infractions committed by SILAYRO,
while disproportionate to a penalty of dismissal, will not
be overlooked. The suspension of five months without
pay, imposed by the Court of Appeals, would serve as a
sufficient and just punishment for his violations of the
company’s Code of Conduct.
8. PADILLA MACHINE SHOP VS. JAVILGAS
FACTS:
Javilgas was hired by Padilla Machine Shop. His work consisted
of reconditioning machines. In July 1998, his salary was
increased and in January 1999, his salary was again increased
until his dismissal in April 2002. Petitioners made regular
deductions for his SSS contributions, but sometime in 2002, he
found out that his employer was not remitting the contributions to
the SSS; as a result, he was not able to avail of the benefits
thereof when his wife gave birth. When he complained about the
failure of his employer to remit his SSS contributions, the latter
transferred him to the Novaliches branch office.
Javilgas further alleged that in April 2002, Rodolfo Padilla called
him by telephone and told him to stop working but without giving
any reason therefor. He stopped reporting for work and sued
petitioners for illegal dismissal, with a prayer for the payment of
backwages, pro rated 13th month pay, separation pay, and moral
and exemplary damages.
On the other hand, petitioner Rodolfo Padilla (Rodolfo),
proprietor of Padilla Machine Shop, alleged that in 1999, SSS
and Medicare contributions were deducted from Javilgas’s salary
and remitted to the SSS; that in 2000, they (petitioners)
submitted a report to the SSS that Javilgas had voluntarily
left and abandoned his work, and transferred to another
shop, Raymond Machine Shop, located within the same
vicinity as Padilla Machine Shop; that some months after,
Javilgas returned and pleaded to be re-employed with them; that
Rodolfo Padilla took Javilgas back to work, but their customers
were not satisfied with the quality of his work; hence Javilgas
was assigned to the Novaliches branch; that Javilgas incurred
numerous absences in the Novaliches branch; that Javilgas had
opened his own machine shop and even “pirated” the
clients of petitioners; and finally, Javilgas again voluntarily left
Padilla Machine Shop without prior notice.
Decisions of Lower Tribunals
1. The Labor arbiter found that he was illegally
dismissed.
2. The NLRC reversed the LA’s decision as Javilgas
was never dismissed stating that he was never
notified of his dismissal nor was he prevented from
returning to work. Javilgasa’s allegation as to the
dates of his dismissal likewise was not appreciated.
3. The Court of Appeals reversed the NLRC and
reinstated the Decision of the Labor Arbiter. It held
that the burden of proof is on the petitioners, to
show that Javilgas was dismissed for a valid and
just cause. As to the inconsistency in the dates of
Javilgas’ termination, the appellate court noted
 that it was a case of miscommunication. Javilgas
was found to be illiterate, as he did not even get to
finish Grade School. Likewise, the delay of eight
months in the filing of the complaint should not
work against respondent because it took time for
him to obtain the services of a counsel.
ISSUE:
Was there abandonment so as to give a valid cause of
dismissal?
HELD:
No. In illegal dismissal cases, the burden of proof is on the
employer to show that the employee was dismissed for a valid
and just cause. Petitioner did not elaborate or show proof of the
claimed abandonment. Instead, he concluded that Javilgas
abandoned his corresponding duties and responsibilities when
he established and created his own machine shop outfit.
For abandonment to exist, it is essential:
(a) That the employee must have failed to
report for work or must have been absent
without valid or justifiable reason; and
(b) That there must have been a clear
intention to sever the employer-employee
relationship manifested by some overt
acts.
The establishment of his own shop is not enough proof that
Javilgas intended to sever his relationship with his employer.
Petitioners consistently deny that Javilgas was dismissed from
service; that he abandoned his employment when he walked out
after his conversation with Rodolfo and never returned to work
again. But denial, in this case, does not suffice; it should be
coupled with evidence to support it. In the Machica case, the
memorandum, among others, represented clear and convincing
proof that there was no intention to dismiss the employees; it
constituted evidence in support of the employer’s denial.
In the instant case, petitioners failed to adduce evidence to rebut
Javilgas’ claim of dismissal and satisfy the burden of proof
required.
As regards the eight-month hiatus before Javilgas instituted the
illegal dismissal case, we sustain the Court of Appeals’
ruling that Javilgas filed the complaint within a reasonable period
during the three-year period provided under Article 291 of the
Labor Code.
Machica Case:
In Machica v. Roosevelt Services Center, Inc.,[12] we sustained
the employer’s denial as against the employees’
categorical assertion of illegal dismissal. In that case, several
employees who allegedly refused to sign a memorandum[13] from
their employer, detailing the commission of alleged anomalies
that resulted in the overpricing and overcharging of customers,
filed an illegal dismissal case three days after receiving the said
memorandum. They claimed that they were illegally dismissed
and were told not to report for work anymore; the employer
denied this and asserted that the workers (who appeared to be
the suspects in the anomalies) were merely given three to five
days off to decide whether or not to agree to share the loss
suffered by it as a result of the anomalies. The Court, in ruling
that there was no illegal dismissal, held that:
The rule is that one who alleges a fact has the
burden of proving it; thus, petitioners were
burdened to prove their allegation that
respondents dismissed them from their
employment. It must be stressed that the
evidence to prove this fact must be clear,
positive and convincing. The rule that the
employer bears the burden of proof in illegal
dismissal cases finds no application here
because the respondents deny having
dismissed the petitioners.
We have reviewed the Memorandum of
respondent Dizon and find nothing therein to
indicate that any of the employees of
respondent corporation, including the
petitioners, would be considered terminated
from employment if they refused to share in
the P23,997.58 loss. Petitioners and other
employees of respondent corporation were
merely required to affix their signatures in the
Memorandum on the space opposite their
respective names, to confirm that they had
read and understood the same. As elucidated
by the NLRC in the assailed Resolution:
Read in its entirety, the Memorandum reflects the GOOD FAITH
of the employer in resolving a discovered anomaly. First, it is a
declaration of AMNESTY and FORGIVENESS; it did not name
names; it did not state that the guilty ones will be pursued and
punished. Second, it asked for SHARING among the
employees for the loss due to the discovered anomaly. Third, it
indicated a POSITIVE BUSINESS DIRECTION as it exhorted the
employees from participating in similar anomalies henceforward.
9. YRASUEGUI VS. PAL
FACTS:
Armando G. Yrasuegui was an international flight steward of
Philippine Airlines, Inc. (PAL). He stands five feet and eight
inches (5'8") with a large body frame. The proper weight for a
man of his height and body structure is from 147 to 166 pounds,
the ideal weight being 166 pounds, as mandated by the Cabin
and Crew Administration Manual of PAL.
Yrasegui’s weight problem
Yrasegui encountered a great deal of weight problem. From
meeting the required weight limit of 166 pounds, he ballooned,
reaching the weights upto 215 to 217 pounds. PAL was lenient
enough to grant him a number of vacation leaves to address his
weight concerns. He was thus required to report for periodical
weight checks. However, instead of losing, he gained more
weight. It was when he reached 217 pounds where he made a
commitment in writing to lose 17 pounds in 90 days and continue
reducing from then on. He remained overweight despite the 90-
day period given him to reach his ideal weight. Time and again,
Yrasuegui refused to comply with the weight checks. When he
finally tipped the scale, he weighed at 212 pounds. Clearly, he
was still way over his ideal weight of 166 pounds. From then on,
nothing was heard from petitioner until he followed up his case
requesting for leniency. He continuously gained weight. On
November 13, 1992, PAL finally served petitioner a Notice of
Administrative Charge for violation of company standards on
weight requirements. Ultimately, Yrasuegui was formally
informed by PAL that due to his inability to attain his ideal weight,
"and considering the utmost leniency" extended to him "which
spanned a period covering a total of almost five years," his
services were considered terminated "effective immediately."
1. The Labor Arbiter ruled in favor of Yrasuegui stating
that although reasonable, the weight standards need
not be complied with under pain of dismissal since his
weight did not hamper the performance of his duties.
2. The NLRC AFFIRMED the decision of the LA.
According to the NLRC, "obesity, or the tendency to
gain weight uncontrollably regardless of the amount of
food intake, is a disease in itself. As a consequence,
there can be no intentional defiance or serious
misconduct by petitioner to the lawful order of PAL for
him to lose weight.
3. The CA reversed the NLRC opining that the weight
standards of PAL are meant to be a continuing
qualification for an employee's position. The failure to
adhere to the weight standards is an analogous cause
for the dismissal of an employee under Article 282(e) of
the Labor Code in relation to Article 282(a).
ISSUE:
Is obesity a just cause in terminating the employee’s services?
HELD:
The obesity of petitioner is a ground for dismissal under
Article 282(e) of the Labor Code.
It is a continuing qualification. Tersely put, an employee may be
dismissed the moment he is unable to comply with his ideal
weight as prescribed by the weight standards. The dismissal of
the employee would thus fall under Article 282(e) of the Labor
Code. The standards violated in this case were not mere
"orders" of the employer; they were the "prescribed weights" that
a cabin crew must maintain in order to qualify for and keep
his or her position in the company.
In this sense, the failure to maintain these standards does not
fall under Article 282(a) whose express terms require the
element of willfulness in order to be a ground for dismissal. The
failure to meet the employer's qualifying standards is in fact a
ground that falls under Article 282(e) - the "other causes
analogous to the foregoing."
By its nature, these "qualifying standards" are norms that apply
prior to and after an employee is hired. They apply prior to
employment because these are the standards a job applicant
must initially meet in order to be hired. They apply after hiring
because an employee must continue to meet these standards
while on the job in order to keep his job. Under this perspective,
a violation is not one of the faults for which an employee can be
dismissed pursuant to pars. (a) to (d) of Article 282; the
employee can be dismissed simply because he no longer
"qualifies" for his job irrespective of whether or not the failure to
qualify was willful or intentional.
In fine, We hold that the obesity of petitioner, when placed in the
context of his work as flight attendant, becomes an analogous
cause under Article 282(e) of the Labor Code that justifies his
dismissal from the service. His obesity may not be unintended,
but is nonetheless voluntary. As the CA correctly puts it,
voluntariness basically means that the just cause is solely
attributable to the employee without any external force
influencing or controlling his actions. This element runs through
all just causes under Article 282, whether they be in the nature of
a wrongful action or omission. Gross and habitual neglect, a
recognized just cause, is considered voluntary although it lacks
the element of intent found in Article 282(a), (c), and (d).
Extra:
Yrasegui’s contentions are interesting enough to take note of:
1. Obesity is a "physical abnormality and/or illness. Relying on Nadura v.
Benguet Consolidated, Inc..
The reliance on Nadura is off-tangent. The factual milieu in Nadura is
substantially different from the case at bar. First, Nadura was not decided
under the Labor Code. The law applied in that case was Republic Act
(RA) No. 1787. Second, the issue of flight safety is absent in Nadura,
thus, the rationale there cannot apply here. Third, in Nadura, the
employee who was a miner, was laid off from work because of illness,
i.e., asthma. Here, petitioner was dismissed for his failure to meet the
weight standards of PAL. He was not dismissed due to illness. Fourth,
the issue in Nadura is whether or not the dismissed employee is entitled
to separation pay and damages. Here, the issue centers on the propriety
of the dismissal of petitioner for his failure to meet the weight standards
of PAL. Fifth, in Nadura, the employee was not accorded due process.
Here, petitioner was accorded utmost leniency. He was given more than
four (4) years to comply with the weight standards of PAL.
2. On Discrimination
Petitioner cites Bonnie Cook v. State of Rhode Island, Department of
Mental Health, Retardation and Hospitals, decided by the United States
Court of Appeals. In that case, Cook worked from 1978 to 1980 and from
1981 to 1986 as an institutional attendant for the mentally retarded at the
Ladd Center that was being operated by respondent. She twice resigned
voluntarily with an unblemished record. Even respondent admitted that
her performance met the Center's legitimate expectations. In 1988, Cook
re-applied for a similar position. At that time, "she stood 5'2" tall and
weighed over 320 pounds." Respondent claimed that the morbid obesity
of plaintiff compromised her ability to evacuate patients in case of
emergency and it also put her at greater risk of serious diseases.
Unlike Cook, however, petitioner is not morbidly obese. In the words of
the District Court for the District of Rhode Island, Cook was sometime
before 1978 "at least one hundred pounds more than what is considered
appropriate of her height." According to the Circuit Judge, Cook weighed
"over 320 pounds" in 1988. Clearly, that is not the case here. At his
heaviest, petitioner was only less than 50 pounds over his ideal weight.
10. CALAMBA MEDICAL CENTER, INC. vs. NLRC
FACTS:
The Calamba Medical Center (petitioner), a privately-owned
hospital, engaged the services of medical doctors-spouses
Ronaldo Lanzanas (Dr. Lanzanas) and Merceditha Lanzanas
(Dr. Merceditha), as part of its team of resident physicians.
Reporting at the hospital twice-a-week on twenty-four-hour
shifts, respondents were paid a monthly "retainer" of P4,800.00
each. They were also given a percentage share out of fees
charged for out-patient treatments, operating room assistance
and discharge billings. The work schedules of the members of
the team of resident physicians were fixed by petitioner's medical
director Dr. Raul Desipeda (Dr. Desipeda). And they were issued
identification cards by petitioner and were enrolled in the Social
Security System (SSS). Income taxes were withheld from them.
On March 7, 1998, Dr. Meluz Trinidad (Dr. Trinidad), also a
resident physician at the hospital, inadvertently overheard a
telephone conversation of respondent Dr. Lanzanas with a fellow
employee, Diosdado Miscala, through an extension telephone
line. Apparently, Dr. Lanzanas and Miscala were discussing the
low "census" or admission of patients to the hospital. Dr.
Desipeda issued to Dr. Lanzanas a Memorandum of March 7,
1998 placing Dr. Lanzanas under 30-day preventive suspension.
Inexplicably, petitioner did not give respondent Dr. Merceditha,
who was not involved in the said incident, any work schedule
after sending her husband Dr. Lanzanas the memorandum, nor
inform her the reason therefor, albeit she was later informed by
the Human Resource Department (HRD) officer that that was
part of petitioner's cost-cutting measures.
On March 14, 1998, the rank-and-file employees union of
petitioner went on strike due to unresolved grievances over
terms and conditions of employment. On March 20, 1998, Dr.
Lanzanas filed a complaint for illegal suspension before the
National Labor Relations Commission (NLRC)-Regional
Arbitration Board (RAB) IV. Dr. Merceditha subsequently filed a
complaint for illegal dismissal.
Secretary of Labor issued on April 21, 1998 return-to-work Order
to the striking union officers and employees of petitioner pending
resolution of the labor dispute.Petitioner later sent Dr. Lanzanas
a notice of termination which he received on April 25, 1998,
indicating as grounds therefor his failure to report back to work
despite the DOLE order and his supposed role in the striking
union.
Labor Arbiter Antonio R. Macam dismissed the spouses'
complaints for want of jurisdiction upon a finding that there was
no employer-employee relationship between the parties, the
fourth requisite or the "control test" in the determination of an
employment bond being absent. The NLRC, reversed the Labor
Arbiter's findings.
The appellate court, by June 30, 2004 Decision, initially granted
petitioner's petition and set aside the NLRC ruling. However,
upon a subsequent motion for reconsideration filed by
respondents, it reinstated the NLRC decision in an Amended
Decision and declared that respondents were illegally dismissed.
ISSUE:
Whether or not there is an employer-employee relationship
between petitioner and the spouses-respondents?
RULING:
This Court is unimpressed. Under the "control test," an
employment relationship exists between a physician and a
hospital if the hospital controls both the means and the details of
the process by which the physician is to accomplish his task.
That petitioner exercised control over respondents gains light
from the undisputed fact that in the emergency room, the
operating room, or any department or ward for that matter,
respondents' work is monitored through its nursing supervisors,
charge nurses and orderlies. Without the approval or consent of
petitioner or its medical director, no operations can be
undertaken in those areas. For control test to apply, it is not
essential for the employer to actually supervise the performance
of duties of the employee, it being enough that it has the right to
wield the power.
Finally, under Section 15, Rule X of Book III of the Implementing
Rules of the Labor Code, an employer-employee relationship
exists between the resident physicians and the training hospitals,
unless there is a training agreement between them, and the
training program is duly accredited or approved by the
appropriate government agency. In respondents' case, they were
not undergoing any specialization training. They were considered
non-training general practitioners, assigned at the emergency
rooms and ward sections.
Petitioner thus failed to observe the two requirements,before
dismissal can be effected ─ notice and hearing The termination
notice sent to and received by Dr. Lanzanas on April 25, 1998
was the first and only time that he was apprised of the reason for
his dismissal. As for the case of Dr. Merceditha, her dismissal
was worse, it having been effected without any just or authorized
cause and without observance of due process.
11. SARI-SARI GROUP OF COMPANIES, INC. v PIGLAS
KAMAO
FACTS:
In December 1990, Mariko Novel Wares, Inc. (petitioner) began
its retail outlet operations under the name Sari-Sari in the
basement of Robinsons Galleria in Quezon City. Among its
employees were: Head Checker Ronnie Tamayo, Checker Jose
del Carmen, Section Heads Jocylene Padua, Vicky Bermeo, and
ElizabethMatutina (respondents), all of whom were assigned at
the Robinsons Galleria branch. On November 30, 1993,
respondents organized a union known as Piglas Kamao. At the
time of the formation, the officers of the union were respondents
Ronnie Tamayo, President; Jose del Carmen, Vice-President;
and Jocelyne Padua, Secretary. Respondents claim that
petitioner, through its President, Rico Ocampo, interfered with
the formation of the union.
Respondents were informed of the petitioners plan to
close the basement level store to give way to the opening of a
Sari-Sari outlet on the third floor of Robinsons
Galleria. Respondents were supposed to be absorbed in other
Sari-Sari store branches. However, on January 9, 1994,
petitioner put up an advertisement in the Manila Bulletin,
announcing its need for inventory, accounting, and sales
clerks.Applicants were requested to apply personally at the
Robinsons Galleria branch.
During the month of January 1994, petitioners
managerial staff approached union members to express
disapproval of the union membership. On January 26, 1994,
respondent union filed an unfair labor practice case with the
Labor Arbiter (LA) against the petitioner for harassment,
coercion, and interference with the workers right to self-
organization.
On the next day, January 27, 1994, petitioner notified
DOLE and the respondents of the closure of the Galleria branch
due to irreversible losses and non-extension of the lease of the
store premises, to be effective on February 28, 1994. Moreover,
the respondents were told that they would not be absorbed in the
other branches of the petitioner because of redundancy.
On February 11, 1994, respondents Tamayo, Del
Carmen, and Padua filed amended complaints of unfair labor
practice and illegal dismissal against petitioner. On March 28,
1994, respondents filed six supplemental complaints for illegal
dismissal, non-payment of premium pay for holiday and rest day
for the years 1992 and 1993, and non-payment of 13th month
pay for the year 1994 as well as for moral and exemplary
damages. In its defense, petitioner denied that the closure of the
Galleria branch was intended to prevent the formation of the
union, saying that the closure was due to consistent losses the
branch was incurring.
On April 27, 1997, the LA rendered his decision
dismissing the complaint for illegal dismissal, unfair labor
practices and damages for lack of merit. However, the LA
ordered the petitioner to pay the respondents separation pay
and proportionate 13th month pay. During the pendency of the
appeal, respondents Bermeo, Matutina, and Padua separately
filed their respective manifestations and Motions to Dismiss,
praying that the appeal be dismissed as to them due to their
having already executed their respective quitclaims releasing
Mariko from liability.
cralawThe NLRC affirmed the decision of the LA but dismissed
the claims of Bermeo, Matutina and Padua as they had executed
quitclaims. Respondents filed a Motion for Reconsideration
which was denied by the NLRC. The CA ruled that petitioner
failed to discharge its burden of submitting competent proof to
show the irreversible substantial losses it suffered warranting the
closure of the Galleria branch. Also, the release and quitclaims
executed by respondents Padua, Bermeo and Matutinadid not
preclude them from assailing their termination.
ISSUE:
Whether or not the CA committed serious error in granting
respondents petition for certiorari and setting aside the findings
of both the NLRC and the Labor Arbiter?
RULING:
Effect of Quitclaims
It is well-established that quitclaims and/or complete
releases executed by the employees do not estop them from
pursuing their claims arising from the unfair labor practice of the
employer. The basic reason for this is that such quitclaims and/
or complete releases are against public policy and, therefore,
null and void.The acceptance of termination pay does not divest
a laborer of the right to prosecute his employer for unfair labor
practice acts.
Closure or Retrenchment?
The decision of the LA, disposed of the issue by stating that the
decision to close the Robinsons branch was a management
prerogative.
After a perusal of the records of the case and pleadings
submitted, we find that petitioner had in fact retrenched
workers. All the pleadings submitted to the LA by the petitioner
clearly showed that what it had in mind when it terminated the
services of respondents was that it had retrenched workers. It
was only when respondents appealed the LA decision that
petitioner pursued a new theory, that is, that what was involved
was a simple closure of business which did not require proof of
substantial losses.
Having concluded that petitioner retrenched workers, we now
decide as to whether or not petitioner had complied with the
requisites of retrenchment. For retrenchment to be valid, the
following requisites must be satisfied:
1. The losses expected should be
substantial and not merely de minimis in
extent;
2. The substantial losses apprehended
must be reasonably imminent;
3. The retrenchment must be
reasonably necessary and likely to
effectively prevent the expected losses;
and
4. The alleged losses, if already
incurred, and the expected imminent
losses sought to be forestalled, must be
proven by sufficient and convincing
evidence.
The CA was correct in finding that petitioner failed to
discharge its duty of showing that the dismissal of the employees
was legal.
In the case at bar, petitioner failed to submit its audited
financial statements to the Securities and Exchange Commission
for the years 1991 and 1992. Thus, other than petitioners bare
allegation of irreversible loss, there is no evidence to prove and
substantiate it.
Petitioner having failed in discharging its burden of submitting
sufficient and convincing evidence required by law, we hold that
respondents Ronnie Tamayo, Jose del
Carmen, Jocylene Padua, Vicky Bermeo and
Elizabeth Matutina were illegally dismissed.
cralawAn illegally dismissed employee is entitled to either (1)
reinstatement, if viable, or separation pay, if reinstatement is no
longer viable; and (2) backwages. In the case at bar, since
fourteen years have already lapsed since the termination of the
respondents, we deem it proper that separation pay in lieu of
reinstatement be awarded. Since petitioner has already paid
respondents their separation pay, it is only liable to pay the
respondents their backwages computed from the time of their
illegal dismissal up to the time of the finality of this judgment.
12. Manatad v. PTTC, March 7. 2008
Authorized Cause; Closure or Cessation not due to losses
Manatad was an employee at PT&T (Philippine Telegraph and
Telephone Corp) since 1988. She started as a junior clerk and
was later promoted as Account Executive before she was
temporarily laid off in 1998. Due to serious business reverses,
PT&T adopted the Temporary Staff Reduction Program and
Manatad later received an invitation to avail of the Staff
Reduction Program Package equivalent to 1-month salary for
every year of service, 1 ½ month salary, pro-rated 13th month
pay, conversion to cash of unused vacation and sick leave
credits, and Health Maintenance Organization and group life
insurance coverage until full payment of the separation package.
Manatad opted not to avail of this but she later received a Notice
of Retrenchment dismissing her from employment in 1999.
Alleging that PT&T's retrenchment program was illegal for it was
actually gaining profits from 1997 to 1998 and had even granted
several salary increases, Manatad presented the Central
Visayas Operating Margin Reports and filed a complaint for
Illegal Dismissal and prayed for the award of separation pay in
the amount of P107,000.00, unpaid salary, prorated 13th month
pay, unpaid vacation leave benefits and attorney's fees.
For its part, PT&T submitted its financial statements 1996 to
1998, as audited by Sycip Gorres Velayo (SGV) & Co. and Alba
Ledesma & Co. showing that it incurred a loss of P558 Million.
Labor Arbiter ruled that PT&T failed to substantiate its claim of
financial reverses and the retrenchment program was invalid,
awarding Manatad her claim.
Upon appeal, the NLRC affirmed the LA's decision. The NLRC
further noted that the DOLE was not notified by the respondent
of its retrenchment program as required by law.
On Certiorari, the Court of Appeals upheld the validity of PT&T’s
retrenchment program. The financial standing of PT&T cannot be
determined by the performance of a single branch or unit alone
but by the performance of all its branches integrated as a whole.
In addition, the comparative statements of income prepared by
independent auditors constitute a normal method of proving the
profit and loss performance of a business company. PT&T also
duly complied with the requirement of service of notice to
Manatad one month before the intended date of retrenchment.
On the issue of whether or not the retrenchment program
was valid and legal, the Supreme Court held that it was. Upon
examination of the evidence adduced by both parties, it was
convinced that PT&T experienced serious financial crises as
shown in the financial statements audited by independent
auditors.
For a valid retrenchment, the following requisites must be
complied with: (a) the retrenchment is necessary to prevent
losses and such losses are proven; (b) written notice to the
employees and to the DOLE at least one month prior to the
intended date of retrenchment; and (c) payment of separation
pay equivalent to one-month pay or at least one-half month pay
for every year of service, whichever is higher.
Jurisprudential standards for the losses which may justify
retrenchment, viz:
Firstly, the losses expected should be substantial and not merely de
minimis in extent. If the loss purportedly sought to be forestalled by
retrenchment is clearly shown to be insubstantial and inconsequential in
character, the bonafide nature of the retrenchment would appear to be
seriously in question. Secondly, the substantial loss apprehended
must be reasonably imminent, as such imminence can be perceived
objectively and in good faith by the employer. There should, in other
words, be a certain degree of urgency for the retrenchment, which is
after all a drastic recourse with serious consequences for the livelihood
of the employees retired or otherwise laid-off. Thirdly, because of the
consequential nature of retrenchment, it must be reasonably
necessary and likely to effectively prevent the expected losses. The
employer should have taken other measures prior or parallel to
retrenchment to forestall losses, i.e., cut other costs than labor costs. An
employer who, for instance, lays off substantial numbers of workers while
continuing to dispense fat executive bonuses and perquisites or so-
called "golden parachutes", can scarcely claim to be retrenching in good
faith to avoid losses. To impart operational meaning to the constitutional
policy of providing "full protection" to labor, the employer's prerogative to
bring down labor costs by retrenching must be exercised essentially as a
measure of last resort, after less drastic means - e.g., reduction of both
management and rank-and-file bonuses and salaries, going on reduced
time, improving manufacturing efficiencies, trimming of marketing and
advertising costs, etc.—have been tried and found wanting.
Lastly, but certainly not the least important, alleged losses if already
realized, and the expected imminent losses sought to be
forestalled, must be proved by sufficient and convincing evidence.
The reason for requiring this quantum of proof is readily apparent: any
less exacting standard of proof would render too easy the abuse of this
ground for termination of services of employees.
PT&T was fully justified in implementing a retrenchment program
since it was undergoing business reverses, not only for a single
fiscal year, but for several years prior to and even after the
program. In a span of six years, respondent realized profits only
in one year, in 1997. The numbers presented by Manatad, which
she obtained from the Central Visayas office, do not bespeak the
overall financial standing in light of the fact that PT&T is
operating nationwide and the Central Visayas office is only one
of its many branches. Losses or gains of a business entity
cannot be fully assessed by isolating or selecting only particular
branches or offices. Manatad is not entitled to backwages, but is
entitled to separation pay.
13. Mora v. Avesco Marketing Corp, Nov. 14, 2008
Voluntary Resignation; Employer’s Acceptance Required
Mora was a “sales engineer” for Avesco since 1996 tasked to
supervise and install sound and communications systems for its
clientele. On March 25, 2003, he tendered his letter of
resignation to be effective a month after.
It is with much reluctance and regret that I must ask to be
released from my position of Sales Engineer at Avesco
Marketing. For the past seven years, I cannot forget how much
this company has meant to me.
With this regard, I'm tendering my resignation effective on
April 25, 2003. Please extend to Mr. Jimmy Tang my
appreciation of his kindness during the time I served.
(Emphasis and underscoring supplied)
Prior to this letter, Mora was confronted for "selling competitors'
products" to the prejudice and detriment of respondent and was
given the option of either immediately resigning or face
administrative charges. On the same day, he changed his mind
and withdrew his letter of resignation after Avesco denied such
request. The following day, Mora was issued a notice of
disciplinary action alleging that he committed a breach of trust by
surreptitiously undertaking a sales transaction patently inimical
to the interest of the Company that results to sales loss for the
company. Mora was required to explain within 48 hours from
receipt why he should not be dismissed and was placed under
preventive suspension.
Mora gave his side on March 27, claiming that he was not
culpable and that the allegations were based on speculation for
he never transacts with products other than Avesco’s. Despite
this explanation, Mora did not hear from Avesco and only learned
from third party sources that his employment was terminated as
of April 1, 2003.
The labor arbiter dismissed Mora’s complaint for illegal dismissal
for lack of jurisdiction since the dispute falls within the province
of the grievance procedure provided for by the Collective
Bargaining Agreement between Avesco and the workers' union.
The case was thus referred to the National Conciliation and
Mediation Board for voluntary arbitration. Voluntary Arbitrator
(VA) Barriatos, by Decision of August 23, 2004, dismissed
Mora's complaint upon the ground that he had voluntarily
resigned. On certiorari, the Court of Appeals denied such,
similarly finding him to have voluntarily resigned.
On the issue of whether or not his resignation was valid, the
Supreme Court held in the negative.
There was also an issue on procedural infirmity1, but the Court
has resolved to rule on the merits of the present petition in the
interest of substantial justice to arrive at the proper conclusion
that is conformable to the evidentiary facts.
It is incumbent upon the employer to prove that the employee
voluntarily resigned (Mobile Protective & Detective Agency v.
Ompad). Voluntary resignations being unconditional in nature,
both the intent and the overt act of relinquishment should concur.
If the employer introduces evidence purportedly executed by an
employee as proof of voluntary resignation yet the employee
specifically denies such evidence, as in petitioner's case, the
employer is burdened to prove the due execution and
genuineness of such evidence.
Avesco failed to discharge such burden. For a resignation
tendered by an employee to take effect, it should first be
accepted or approved by the employer. That Avesco issued the
"show cause" letter a day after petitioner filed the controversial
letter of resignation could only mean that it did not accept the
same.
Petitioner's "resignation" being premised on a qualification ─ that
it be effective April 25, 2003 ─ was conditional in character. It is
thus only considered as a mere offer. Since respondent did not
accept the condition attendant to the offer as, it bears repeating,
he was in fact given a "show cause" letter a day after, there was
no resignation to speak of.
This brings the Court to the issue of whether petitioner was
illegally dismissed. The Court finds in the affirmative.
While selling of respondent's competitors' products is a valid
ground for termination of employment, an employer cannot just
hurl generalized accusations but should at least cite specific
instances and proof in support thereof. There was no testimonial
or documentary proof proffered. There is also no showing that an
investigation was conducted.
14. Alabang Country Club vs. NLRC
GR. No. 170287, February 14, 2008
Facts:
- Petitioner Alabang Country Club Inc. is a domestic non –
profit corporation while respondent Alabang Country Club
Independent Employees Union is the exclusive bargaining
agent of the Club’s rank and file employees.
- Other respondents to the case are Christopher Pizarro,
Michael Braza, and Nolasco Castueras were elected as
Union President, Vice – President, and Treasurer.
- In 1999, the petitioner and respondent union entered into a
collective bargaining agreement which provided for a union
shop and maintenance of membership shop. The pertinent
1
The Court notes that the appellate court erred in giving due course to petitioner's
petition for certiorari, for his proper mode of appeal was for review under Rule 43 of
the 1997 Rules of Civil Procedure. Section 1 of Rule 43 states that the rule applies
to voluntary arbitrators. Sec. 4, however, “requires that the petition for review to be
taken to the Court of Appeals should be filed within fifteen (15) days from notice of
the award, judgment or final order or resolution of the VA.” Mora filed before the
appellate court a petition for certiorari 49 days after receipt of the decision of the VA
at which time the 15-day period to file appeal had expired.
section states:
 Sec. 4 Termination Upon Union Demand – Upon written
demand of the Union and after observing due process,
the Club shall dismiss a regular employee on any of the
following grounds
 A) Failure to join the Union within 5 days form the
time of regularization;
 B) Resignation from the Union, except within the
period allowed by law;
 C) Conviction of a crime involving moral turpitude;
 D) Non – payment of Union dues, fees, and
assessments;
 E) Joining another Union except within the period
allowed by law;
 F) Malversation of Union funds;
 G) Actively campaigning to discourage membership
in the Union and;
 F) Inflicting harm or injury to any member or officer of
the Union.
- Subsequently, the club and the union discovered some
irregularly recorded entries, unaccounted expenses and
disbursement and uncollected loans form the Union funds.
- The three respondents were called for a meeting to explain
their side, they were given the opportunity to explain all their
accountabilities verbal and written and they all denied their
wrong doing however failed to satisfy the board for the acts
they have committed
- Despite their explanation, the three were furnished an
individual letters of expulsion for Malversation of Funds. In
the letter, the Union invoking the Security Claus of the CBA
demanded that the Club dismiss the three.
- The three respondents challenged their dismissal and filed a
complaint in the Labor Arbiter. The latter dismiss their
complaint and ruled that their dismissal in based on just
cause and thus they were not illegally dismissed
- The respondents appeal to the NLRC and CA which reverse
the decision of the Labor Arbiter sighting sec. 2(b), Rule
XXIII Book V of the Omnibus Rules Implementing the Labor
Code finding that respondents were not accorded with due
process and were not given the opportunity to be heard in a
separate hearing, thus the NLRC issued an order for the
reinstatement of the respondents without loss of their
seniority rights and full backwages.
- Hence, petitioner Alabang Country Club filed a petitioner for
certiorari to the Supreme Court
Issues:
Whether or not the three respondents were illegally dismissed by
the petitioner
Whether or not respondents were afforded due process
On the first issue, the court enumerated the valid grounds
for termination namely: Art. 282, Art. 283, Art. 284 and Art. 285.
Further another cause for termination of dismissal from
employment is due to the enforcement of the union security
clause in the CBA. Termination of employment by virtue of a
union security clause embodied in the CBA is recognized in our
jurisdiction. It is also clear upon demand by the Union and after
due process; the Club shall dismiss the employment of the
respondents who were found liable to the offense.
Not let us go with the second issue. In the present case,
the Club has substantially complied with due process. The three
respondents were notified that their dismissal was being
requested by the Union, and their explanations were heard. The
three were dismissed only after the Club reviewed and
considered the documents submitted by the Union and the
written explanation submitted by the three respondents. Upon
these circumstances, the court held that the Club has afforded
the three respondents with a reasonable opportunity to be heard
and defend themselves
Wherefore, the decision of the NLRC and CA were
dismissed and upholding the decision of the Labor Arbiter.
15. Tirazona vs. Philippine Techno Service
GR. No. 169712, January 20, 2009
Facts:
- Petitioner Tirazona being the Administrative Manager of the
Philippine EDS Techno Service, Inc. was a managerial
employee who held a position of trust and confidence; that
after PET officer/ directors called her attention to her
improper handling of a situation involving a rank – and – file
employee, she claimed that she was denied due process for
which she demanded Php 2,000,000.00. Thus, she admitted
reading a confidential letter addressed to PET regarding her
case and that she was validly terminated from her
employment on the ground that she willfully breached the
trust and confidence reposed in her by her employer. The
court concludes that Tirazona has given PET more enough
reasons to distrust her. The court denied her petition and
affirmed the decision of the CA.
- Petitioner not contented; file a motion for reconsideration
arguing that the court failed to consider her length service to
PET in affirming her termination from employment. She
pleaded that she be awarded separation pay and retirement
benefits out of humanitarian consideration.
- The court denied her motion for reconsideration with
FINALITY for lack of merit. Hence, the petitioner filed
another Motion for Reconsideration for the second time
Issues:
Whether or not a second motion for reconsideration can be
entertained by the Supreme Court
Whether or not petitioner is entitled to separation pay and
retirement benefits for just termination.
Held:
On the first issue, the court ruled that Sec. 2 of Rule 52
Rules of court explicitly states that “no second motion for
reconsideration of a judgment or final resolution by the same
party be entertained. Accordingly, a second motion for
reconsideration is prohibited pleading which shall not be allowed,
except for extraordinarily persuasive reasons only after an
express leave shall have first been obtained. However, in this
case, the court failed to find such any extraordinarily persuasive
reason to allow Tirazona’s second motion for reconsideration.
With regards to the second issue the general rule is that
separation pay shall be allowed as a measure of social justice
only in those instances where the employee is validly dismissed
for cause other than those serious misconduct or those reflecting
on his moral character. However the court contends that this
would tolerate the employee who steals from the company is
granted separation pay even as he is validly dismissed, it is not
unlikely that he will commit a similar offense in his next
employment because he thinks he can expect leniency. Thus,
her attitude towards her employer was a clear inconsistent with
her position of trust and confidence. Her poor character became
even more evident when she read what was supposed to be a
confidential letter of the legal counsel of PET to PET officer and
directors. In accordance to separation pay, it is valid that
Tirazona is not entitled to separation pay. With regards to her
retirement benefits, it is also denied.
Wherefore, the Motion for Leave to File a Second
Motion for Reconsideration is denied and NOTED WITHOUT
ACTION.
16 Masmud v. NLRC G.R. No. 183385 February 13, 2009
NACHURA,J:
Facts:
Evangelina Masmud’s husband, the late Alexander Masmud filed
a complaint against First Victory Shipping Services Angelakos
(Hellas) for non-payment of permanent disability benefits,
medical expenses, sickness allowance, moral and exemplary
damages and attorney’s fees. Alexander engaged the services of
Atty. Rolando Go as his counsel.
In consideration of Atty. Go’s legal services, Alexander agreed to
pay on contingent basis: 20% of total monetary claims as settled
or paid and an additional 10% in case of appeal. And any award
for attorney’s fees shall pertain to respondent’s law firm as
compensation.
The LA granted monetary claims of Alexander wherein Hellas
shall jointly and severally pay Alexander total permanent
disability benefits of US$60,000 and his sickness allowance of
US$2,348, both in Philippine currency at current exchange rate
and to further pay P200,000 as moral damages, P100,000 as
exemplary damages and attorney’s fees of 10% of the total
monetary award. Claim for medical expenses were dismissed
Hellas appealed to NLRC, during pendency Alexander died,
Atty. Go explained to Evangelina the terms of the lawyer’s fees
and she became the substitute complainant. NLRC dismissed
the appeal of Hellas. It filed a motion for reconsideration but was
denied.On appeal before the CA, the decision of LA was affirmed
with modification deleting award for moral and exemplary
damages. Hellas filed a petition for certiorari but was dismissed.
The decision of the NLRC became final and executory. Atty. Go.
Filed the execution of the decision of the NLRC and was granted
by LA.Surety bond of the employer was garnished and it was
delivered to NLRC cashier, through NLRC sheriff, the check of P
3,454,079.20. Atty. Go moved for the release of the said amount
to Evangelina. LA directed the release of the amount. Evangelina
paid Atty. GO the sum of P680,000
Atty. Go filed a motion to record and enforce the attorney’s lien
alleging that Evangelina reneged (break her promise) on the
contingent fee agreement. The amount paid was only 20% of the
award as attorney’s fees leaving 10% balance, plus the award to
the counsel as attorney’s fees.In Reply to Atty. Go’s motion,
Evangelina manifested that the claim for attorney’s fees of 40%
of the total monetary award was null and void based on Art. 111
of the Labor Code. LA granted Atty. Go’s motion wherein the
balance of unpaid 20% of attorney’s fees or P839,587.39 should
be paid by Evangelina. NLRC Cashier is directed to pay the
counsel the amount of P677,589.96 which is currently deposited.
Evangelina questioned the order of LA before the NLRC and it
was dismissed. It was elevated before the CA, partially granting
the petition. Declaring Atty. Go is fully compensated with the
amount of 1,347,950.11 that he already received.Evangelina filed
for a Motion for Reconsideration but CA denied. Hence this
petition.
Issue: W/N the CA erred awarding the claim of 40% of the
monetary award in a labor case as attorney’s fees to Atty. Go?
NO.
 Held: There are 2 concepts of attorney’s fees: 1) in the ordinary
concept where it represent the reasonable compensation paid to
a lawyer by his client for the legal services and 2) extraordinary
concept where it may be awarded by the court as indemnity for
the damages to be paid by the losing party to the prevailing
party.
Ordinary Concept is applied in this case, Atty. Go is entitled to
receive compensation for representing Evangelina.
Art. 111 of the Labor Code “Attorney's fees. — (a) In cases of
unlawful withholding of wages the culpable party may be
assessed attorney's fees equivalent to ten percent of the amount
of the wages recovered” deals with the extraordinary concept
where it regulated the amount recoverable as attorney’s fees in
the nature of damages sustained by and awarded to the
prevailing party. It may not be used as the standard in fixing the
amount payable to the lawyer by his client for the legal services
he rendered.
Sec. 24, Rule 138 Rules of Court should be observed in
determining Atty. Go’s compensation. The contract between Atty.
Go and Evangelina provides for a contingent fee. The contract
shall control unless found by the court to be unconscionable or
unreasonable. Fee’s are unconscionable if they affront one’s
sense of justice,decency or reasonableness. The decree of
unconscionability of a stipulated amount in a contingent fee
contract will not preclude recovery. It merely justifies the fixing by
the court of a reasonable conpensation for the lawyer’s services.
Under Canon 20, Rule 20.01, Canon of Profession responsibility
set a criteria for assessing the proper amount of compensation
that a lawyer should receive: (a) The time spent and the extent of
the services rendered or required;(b) The novelty and difficulty of
the question involved;(c) The importance of the subject matter;
(d) The skill demanded;(e) The probability of losing other
employment as a result of acceptance of the proffered case;(f)
The customary charges for similar services and the schedule of
fees of the IBP Chapter to which he belongs;(g) The amount
involved in the controversy and the benefits resulting to the client
from the service;(h) The contingency or certainty of
compensation;(i) The character of the employment, whether
occasional or established; and(j) The professional standing of
the lawyer.
Contingent fee contracts are subject to supervision and close
scrutiny of the court it order that clients may be protected from
unjust charges. The court finds nothing illegal in the contingent
fee contract between Atty. Go and Alexander (Evangelina’s
husband). CA committed no error of law when it awarded
attoryney’s fees.
17 San Miguel Corporation v. Teodisio G.R. No 163033
October 2, 2009
PERALTA, J:
Facts:
On Sept. 5, 1991, Teodisio was hired by SMC as casual forklift
operator in Bacolod city brewery. He continuously worked until
March 1992 after which he was “asked to rest” for a while. A
month after, sometime in April 1992, Teodisio was rehired to the
same position and served for 5 to 6 months and again “asked to
rest.” After 3 weeks he was again rehired, and he continued to
work until Aug. 1993. On Aug 1993 he was made to sign an
“Employment with a fixed Period” contract by SMC where it was
stipulated that Teodisio’s employment would be from Aug 7, 1993
to Aug 30, 1995 or upon cessation of the instability/ fluctuation
on the market demand, whichever comes first.” Teodisio worked
at the plant without interruption.
On Mar 20,1995, Teodisio was transferred to the bottling section
as a case piler. In a letter dated April 10,1995, Teodisio formally
informed SMC of his opposition to the transfer. He asserted that
would be more effective as a forklift operator because he was
employed as such for more than 3 years. He requested to be
transferred to his former position but SMC did not answer. In an
undated letter, Teodisio informed SMC that he was applying for
the vacant position of bottling crew because he wanted to
become a regular employee of SMC. SMC notified Teodisio that
his employment shall be terminated in compliance with the
Employment with a Fixed period contract. SMC explained that it
was due to the reorganization and streamlining operation.
Teodisio expressed his dismay for the dismissal in a letter where
he informed SMC, despite of being compelled to receive
separation pay and forced to sign a waiver, this does not mean
that he was waiving his right to question his dismissal and to
claim employment benefits as provided in CBA and company
policies. Thereafter Teodisio signed a Receipt and Release
document in favor of SMC and accepted his separation pay and
thereby releasing all his claims with SMC.
Teodisio filed a complaint against SMC before the NLRC for
illegal dismissal and underpayment of wages and other benefits.
LA dismissed the complaint for lack of merit. The said contract of
employment with fixed period was a legitimate exercise of
management prerogative and termination is in accordance of
employment contract. Also he is not a regular employee,
therefore not entitled to benefit under CBA. Before the NLRC,
affirmed the LA’s decision. In the CA, it granted the petition to
annul and set aside the decision of NLRC. CA ratiocinated that
the Employment with a Fixed period contract was just a scheme
of SMC to circumvent the respondent’s security of tenure and
concluded that before Teodisio signed the employment contracts
he already attained the status of a regular employee. His transfer
and dismissal is tainted with bad faith and declared the Receipt
and Release document signed, since the law proscribes any
agreement whereby a worker agrees to receive less
compensation than what he is entitled to recover. It also added
that a deed of release or quitclaim cannot bar an employee from
demanding benefits. SMC filed for MR but was denied and
hence this petition.
Issue: W/N Teodisio was a regular employee? YES
Held:
Under Art. 280, Labor Code, there are 2 kinds of regular
employees: 1) regular employees by nature of work – refers to
those employees who perform a particular activity which is
necessary or desirable in the usual business or trade of the
employer, regardless of their length or service 2) regular
employees by years of service – refers to employees who have
been performing the job, regardless of the nature, for at least a
year, even if continuous or merely intermittent, the law deems
the repeated and continuing need for its performance as
sufficient evidence of the necessity, if not indispensability, of that
activity to the business.
The court is convinced that Teodisio has attained the status of
regular employee long before he executed the employment
contract with a fixed period. Teodisio was initially hired by SMC
on Sept. 5, 1992, rehired for the same position on April 1992
which lasted for 5 to 6 months, after 3 weeks rehired again until
August 1993. When he signed the Employment with fixed period
contract. He has already been in the employment of SMC for 23
months.
The labor code provides that a casual employee shall be
considered as regular employee if said causal employee has
rendered at least one year of service regardless of the fact that
such service may be continuous or broken.
The nature of Teodisio’s work is necessary for business in
which SMC is engaged. SMC maintains a brewery while Teodisio
is a forklift operator whose task is to lift and transfer pallets and
pile them from the bottling section to piling area. SMC also
wanted the court to believe that its full automation o the brewery
and new marketing distribution systems resulted the reduction of
personnel and termination of employees with a fixed period
contract. However after installation of automated palletizers,
SMC did not leave the position of forklift operator vacant. This
shows the necessity and indispensability of hiring a forklift
operator to the business of SMC.
Teodisio is a regular employee of SMC and employment
contract with a fixed period was meant only to circumvent
respondent’s right to security of tenure and therefore invalid.
In the case of Brent School, Inc. v. Zamora, the court made it
clear that a contract of employment stipulating a fixed term is
invalid if it can be shown that it was executed with intention of
circumventing an employee’s right to security of tenure and
should thus be ignored. Moreover, that the period that was
imposed to preclude the acquisition of tenurial security by the
employee should struck down as contrary to law, morals, good
customs, public order and public policy.
Teodisio having gained a status of a regular employee is entitled
to security of tenure and could only be dismissed on just or
authorized causes after he has been accorded due process. The
termination of respondents employment based on the fixed
contract and giving Teodisio opportunity to become a regular
employee when he was transferred to bottling section do not
constitute just or authorized cause.
The receipt and release document signed by Teodisio wherein
he is barred from demanding benefits to which he is legally
entitled are frowned upon by the court because it is contrary to
public policy. The burden of proving that the quitclaim or waiver
was voluntarily entered rests on the employer. SMC failed to
discharge this burden, in effect Teodisio did not waive his right to
question his dismissal and claims to employment benefits.
18. Becmen Service Exporter & Promotion, Inc. v. Cuaresma
G.R. Nos. 182978-79. April 7, 2009.
FACTS: Jasmin Cuaresma was deployed by Becmen
Service Exporter and Promotion, Inc. to serve as assistant nurse
in Al-Birk Hospital in the Kingdom of Saudi Arabia (KSA), for a
contract duration of 3 years, with a corresponding salary of
US$247.00 per month. A year later, she was found dead in her
dormitory room. The examining physician of the Al-Birk Hospital
concluded that the cause of her death was poisoning. Her body
was repatriated to Manila and the following day, the City Health
Officer of Cabanatuan City conducted an autopsy and found that
Jasmin died of violent circumstances due to lacerations and
abrasions on various parts of her body and not poisoning as
found by the physician from KSA. The NBI also conducted
another autopsy and the toxicology report tested negative for
non-volatile, metallic poison and insecticides. Jasmin’s parents
received from the Overseas Workers Welfare Administration
(OWWA) amounts for death, funeral and medical reimbursement
benefits.The Cuaresmas filed a complaint against Becmen and
its principal in the KSA, Rajab & Silsilah Company, claiming
death and insurance benefits, as well as moral and exemplary
damages for Jasmin’s death, claiming that Jasmin’s death was
work-related, having occurred at the employer’s premises.
Becmen and Rajab insist that Jasmin committed suicide, citing a
prior unsuccessful suicide attempt and relying on the medical
report of the KSA physician. While the case was pending,
Becmen filed a manifestation and motion for substitution alleging
that Rajab terminated their agency relationship and had
appointed White Falcon Services, Inc. (White Falcon) as its new
recruitment agent in the Philippines. Thus, White Falcon was
impleaded as respondent and it adopted and reiterated
Becmen’s arguments.
The LA dismissed the complaint for lack of merit, gave
weight to the medical report of the Al-Birk Hospital finding that
Jasmin died of suicide through poisoning and held that her death
was not service-connected, nor did it occur while she was on
duty. The LA also noted that her parents have received all
corresponding benefits they were entitled to under the law. The
NLRC reversed the same and held that Jasmin’s death was the
result of an “accident” occurring within the employer’s premises
that is attributable to her employment, or to the conditions under
which she lived, and thus arose out of and in the course of her
employment as nurse. The CA affirmed the decision of the NLRC
but amended the same with respect to the monetary award.
ISSUE; Whether or not Rajab & Silsilah Company, White Falcon
Services, Inc., Becmen Service Exporter and Promotion, Inc. are
liable for the death of Jasmin Cuaresma.
RULING: They are liable. Under Republic Act No. 8042 (R.A.
8042), or the Migrant Workers and Overseas Filipinos Act of
1995, the State shall, uphold the dignity of its citizens whether in
country or overseas, and provide adequate and timely social,
economic and legal services to Filipino migrant workers.
Recruitment agencies should be the first to come to the rescue
of our OFW’s. Upon them lies the primary obligation to protect
the rights and ensure the welfare of our OFWs, whether
distressed or not. Private employment agencies are held jointly
and severally liable with the foreign-based employer for any
violation of the recruitment agreement or contract of
employment. This joint and solidary liability imposed by law
against recruitment agencies and foreign employers is meant to
assure the aggrieved worker of immediate and sufficient
payment of what is due him. If the recruitment/placement agency
is a juridical being, the corporate officers and directors and
partners as the case may be, shall themselves be jointly and
solidarily liable with the corporation or partnership for the
aforesaid claims and damages
Becmen and White Falcon, as licensed local
recruitment agencies, miserably failed to abide by the provisions
of R.A. 8042.Recruitment agencies are expected to extend
assistance to their deployed OFWs, especially those in distress.
The evidence does not even show that Becmen and Rajab lifted
a finger to provide legal representation and seek an investigation
of Jasmin’s case. They even stood by the argument that Jasmin
committed suicide in order to render the case closed and place
their own financial and corporate interests above their moral and
social obligations, by choosing to secure and insulate
themselves from the perceived responsibility of having to answer
for and indemnify Jasmin’s heirs for her death. Clearly, Rajab,
Becmen and White Falcon’s acts and omissions are against
public policy because they undermine and subvert the interest
and general welfare of our OFWs abroad, who are entitled to full
protection under the law. Their shabby and callous treatment of
Jasmin’s case; their uncaring attitude; their unjustified failure and
refusal to assist in the determination of the true circumstances
surrounding her mysterious death, and instead finding
satisfaction in the unreasonable insistence that she committed
suicide just so they can conveniently avoid pecuniary liability;
placing their own corporate interests above of the welfare of their
employee’s – all these are contrary to morals, good customs and
public policy, and constitute taking advantage of the poor
employee and her family’s ignorance, helplessness, indigence
and lack of power and resources
19. Alcatel Phils., Inc. and Delos Reyes v. Relos
G.R. No. 164315. July 3, 2009
FACTS: Alcatel is a domestic corporation primarily engaged in
the business of installation and supply of telecommunications
equipment. The company offered respondent Relos “temporary
employment as Estimator/Draftsman – Civil Works to assist in
the preparation of manholes and conduit design for the proposal
preparation” for a project for a period of approximately 1 month.
When Alcatel undertook the same project in the Eastern Visayas
and Eastern Mindanao for PLDT, Relos was again given
temporary employment as Civil Works Inspector for another
period of more than one month. Upon the expiration of his
contract, Relos was again offered temporary employment this
time as Civil Works Engineer for a certain period. He was
offered temporary employment in the same capacity for 5 more
times and the company renewed respondent’s contract 2 more
times. Thereafter, Alcatel informed respondent through a letter
that the civil works portion of the project was near completion;
however, the remaining works encountered certain delays and
had not been completed as scheduled. Alcatel then extended
respondent’s employment for another 3 months.
Alcatel informed Relos that the project was nearing
completion and that his contract with Alcatel would expire on the
same day. He was also asked to settle all his accountabilities
with the company and advised him that he would be called if it
has future projects that require his expertise. Relos filed a
complaint for illegal dismissal, separation pay, unpaid wages,
unpaid overtime pay, damages, and attorney’s fees against
Alcatel, alleging that he was a regular employee and that he was
dismissed during the existence of the project.
The LA declared that respondent was a regular
employee of Alcatel and that he was illegally dismissed. The
NLRC reversed the LA’s decision. The CA set aside the NLRC’s
decision and held that Relos was a regular employee of Alcatel.
ISSUE: Whether or not respondent was a regular employee of
Alcatel.
RULING: Relos is not a regular employee. He is only a project
employee. The specific projects for which respondent was hired
and the periods of employment were specified in his employment
contracts. The services he rendered, the duration and scope of
each employment are clear indications that respondent was
hired as a project employee.
The principal test for determining whether a particular
employee is a project employee or a regular employee is
whether the project employee was assigned to carry out a
specific project or undertaking, the duration and scope of which
were specified at the time the employee is engaged for the
project. “Project” may refer to a particular job or undertaking that
is within the regular or usual business of the employer, but which
is distinct and separate and identifiable as such from the
undertakings of the company. Such job or undertaking begins
and ends at determined or determinable times. The specific
projects for which respondent was hired and the periods of
employment were specified in his employment contracts. The
services he rendered, the duration and scope of each
employment are clear indications that respondent was hired as a
project employee. Relos’ contention that he became a regular
employee because he was continuously rehired by Alcatel every
termination of his contract is untenable.
In Maraguinot, Jr. v. NLRC, A project employee or a
member of a work pool may acquire the status of a regular
employee when the following concur: (1) There is a continuous
rehiring of project employees even after the cessation of a
project; (2) The tasks performed by the alleged “project
employee” are vital, necessary and indispensable to the usual
business or trade of the employer.
While respondent performed tasks that were clearly
vital, necessary and indispensable to the usual business or trade
of Alcatel, respondent was not continuously rehired by Alcatel
after the cessation of every project. Alcatel’s continuous
rehiring of respondent in various capacities from February 1991
to December 1995 was done entirely within the framework of
one and the same project ― the PLDT 1342 project The
employment of a project employee ends on the date specified in
the employment contract. Therefore, respondent was not
illegally dismissed but his employment terminated upon the
expiration of his employment contract.
20. Escasinas and Singco VS Shangrila Mactan Island
Resort
GR. No. 178827, March 4, 2009
Carpio-Morales
FACTS:
Registered nurses Jeromie D. Escasinas and Evan Rigor
Singco (petitioners) were engaged in 1999 and 1996,
respectively, by Dr. Jessica Joyce R. Pepito (respondent doctor)
to work in her clinic at respondent Shangri-la’s Mactan Island
Resort (Shangri-la) in Cebu of which she was a retained
physician. In late 2002, petitioners filed with the National Labor
Relations Commission (NLRC) a complaint for regularization,
underpayment of wages, non-payment of holiday pay, night shift
differential and 13th month pay differential against respondents,
claiming that they are regular employees of Shangri-la. Shangri-
la claimed, however, that petitioners were not its employees but
of respondent doctor whom it retained via Memorandum of
Agreement. Respondent doctor for her part claimed that
petitioners were already working for the previous retained
physicians of Shangri-la before she was retained by Shangri-la;
and that she maintained petitioners’ services upon their request.
Labor Arbiter Ernesto F. Carreon, declared petitioners to
be regular employees of Shangri-la. The Arbiter thus ordered
Shangri-la to grant them the wages and benefits due them as
regular employees from the time their services were engaged.
The Arbiter noted that they usually perform work which is
necessary and desirable to Shangri-la’s business; that they
observe clinic hours and render services only to Shangri-la’s
guests and employees; that payment for their salaries were
recommended to Shangri-la’s Human Resource Department
(HRD); that respondent doctor was Shangri-la’s “in-house”
physician, hence, also an employee; and that the MOA between
Shangri-la and respondent doctor was an “insidious mechanism
in order to circumvent [the doctor’s] tenurial security and that of
the employees under her.”
The NLRC granted Shangri-la’s and respondent doctor’s
appeal finding that no employer-employee relationship exists
between petitioner and Shangri-la. In so deciding, the NLRC
held that the Arbiter erred in interpreting Article 157 in relation to
Article 280 of the Labor Code, as what is required under Article
157 is that the employer should provide the services of medical
personnel to its employees, but nowhere in said article is a
provision that nurses are required to be employed; that contrary
to the finding of the Arbiter, even if Article 280 states that if a
worker performs work usually necessary or desirable in the
business of the employer, he cannot be automatically deemed a
regular employee; and that the MOA amply shows that
respondent doctor was in fact engaged by Shangri-la on a
retainer basis, under which she could hire her own nurses and
other clinic personnel.
Petitioners thereupon brought the case to the Court of
Appeals, which affirmed the NLRC Decision that no employer-
employee relationship exists between Shangri-la and petitioners.
ISSUE:
(1) Whether or not the full time nurses are regular employees.
(2) Whether or not the doctor is an independent contractor.
RULING:
(1) Pursuant to Article 157 of the Labor Code, Shangri-la, which
employs more than 200 workers, is mandated to “furnish” its
employees with the services of a full-time registered nurse, a
part-time physician and dentist, and an emergency clinic which
means that it should provide or make available such medical and
allied services to its employees, not necessarily to hire or employ
a service provider. The term “full-time” in Art. 157 cannot be
construed as referring to the type of employment of the person
engaged to provide the services, for Article 157 must not be read
alongside Art. 280 in order to vest employer-employee
relationship on the employer and the person so engaged. The
phrase “services of a full-time registered nurse” should thus be
taken to refer to the kind of services that the nurse will render in
the company’s premises and to its employees, not the manner of
his engagement.
(2) In ruling in the affirmative, the court held that the existence of
an independent and permissible contractor relationship is
generally established by considering the following determinants:
whether the contractor is carrying on an independent business;
the nature and extent of the work; the skill required; the term and
duration of the relationship; the right to assign the performance
of a specified piece of work; the control and supervision of the
work to another; the employer's power with respect to the hiring,
firing and payment of the contractor's workers; the control of the
premises; the duty to supply the premises, tools, appliances,
materials and labor; and the mode, manner and terms of
payment.
21. La Rosa Vs Ambassador Hotel
GR No. 177059, March 13, 2009
Carpio-Morales
FACTS:
On April 17, 2002, employees of Ambassador Hotel
including herein petitioners filed before the National Labor
Relations Commission (NLRC) several complaints for illegal
dismissal, illegal suspension, and illegal deductions against the
hotel (respondent) and its manager, Yolanda L. Chan. They
alleged that, following their filing of complaints with the
Department of Labor and Employment-NCR which prompted an
inspection of the hotel’s premises by a labor inspector,
respondent was found to have been violating labor standards
laws and was thus ordered to pay them some money claims.
This purportedly angered respondent’s management, which
retaliated by suspending and/or constructively dismissing them
by drastically reducing their workdays through the adoption of a
work reduction/rotation scheme. Criminal cases for estafa were
likewise allegedly filed against several of the employees
involved, some of which cases were eventually dismissed by the
prosecutor’s office for lack of merit.
The labor arbiter found respondent and its manager
Yolanda L. Chan guilty of illegal dismissal and ordered them to
pay petitioners’ separation pay at ½ month for every year of
service with full backwages, and 10% of the monetary award as
attorney’s fees.
The NLRC affirmed the labor arbiter’s ruling with the
modification that five of the complainants were directed to report
back to work, and respondent was directed to accept them
without having to pay them backwages.
The appellate court reversed the NLRC decision and
dismissed petitioners’ complaints, holding that there was no
constructive dismissal because petitioners "simply disappeared
from work" upon learning of the work reduction/rotation scheme;
and that in their position paper submitted before the NLRC,
petitioners only prayed for separation pay and not for
reinstatement, hence, following settled jurisprudence, the latter
relief has been foreclosed.
ISSUE:
Whether or not petitioners were illegally dismissed.
RULING:
In ruling in the affirmative he Court held constructive
dismissal occurs when there is cessation of work because
continued employment is rendered impossible, unreasonable or
unlikely; when there is a demotion in rank or diminution in pay or
both; or when a clear discrimination, insensibility, or disdain by
an employer becomes unbearable to the employee.9
Respondent’s sudden, arbitrary and unfounded adoption of the
two-day work scheme, which greatly reduced petitioners’
salaries, renders it liable for constructive dismissal.
Respecting the appellate court’s ruling that petitioners
"simply disappeared" from their work, hence, they are guilty of
abandonment, the same does not lie. Absence must be
accompanied by overt acts unerringly pointing to the fact that the
employee simply does not want to work anymore. And the
burden of proof to show that there was unjustified refusal to go
back to work rests on the employer.
Abandonment is a matter of intention and cannot lightly
be inferred or legally presumed from certain equivocal acts. For
abandonment to exist, two requisites must concur: first, the
employee must have failed to report for work or must have been
absent without valid or justifiable reason; and second, there must
have been a clear intention on the part of the employee to sever
the employer-employee relationship as manifested by some
overt acts. The second element is the more determinative factor.
Abandonment as a just ground for dismissal thus requires clear,
willful, deliberate, and unjustified refusal of the employee to
resume employment. Mere absence or failure to report for work,
even after notice to return, is not tantamount to abandonment.

Also, petitioners’ immediate filing of complaints for

illegal suspension and illegal dismissal after the implementation
of the questioned work scheme, which scheme was adopted
soon after petitioners’ complaints against respondent for violation
of labor standards laws were found meritorious, negates
respondent’s claim of abandonment. An employee who takes
steps to protest his dismissal cannot by logic be said to have
abandoned his work.