labor full text review

7/28/2019 Labor Full Text Review

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Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONG.R. No. 167045 August 29, 2008COCOMANGAS HOTEL BEACH RESORT and/orSUSAN MUNRO, petitioners,vs.FEDERICO F. VISCA, JOHNNY G. BAREDO, RONALDQ. TIBUS, RICHARD G. VISCA and RAFFIE G.VISCA, respondents.D E C I S I O NAUSTRIA-MARTINEZ, J.:Before the Court is a Petition for Reviewon Certiorariunder Rule 45 of the Rules of Courtassailing the Decision1 dated July 30, 2004 of the Courtof Appeals (CA) in CA-G.R. SP No. 78620 whichreversed and set aside the Resolution dated February27, 2003 of the National Labor Relations Commission(NLRC) in NLRC Case No. V-000714-2000; and the CAResolution2dated February 2, 2005 which deniedpetitioners' Motion for Reconsideration.The present controversy stemmed from five individual

complaints3 for illegaldismissal filed on June 15, 1999 by Federico F. Visca(Visca), Johnny G. Barredo, Ronald Q. Tibus, Richard G.Visca and Raffie G. Visca (respondents) againstCocomangas Hotel Beach Resort and/or its owner-manager, Susan Munro (petitioners) before Sub-Regional Arbitration Branch No. VI of the National LaborRelations Commission (NLRC) in Kalibo, Aklan.In their consolidated Position Paper,4respondentsalleged that they were regular employees of petitioners,with designations and dates of employment as follows:

Name Designation

Federico F. Visca ForemanJohnny G. Barredo Carpenter

Ronald Q. Tibus Mason

Richard G. Visca Carpenter

Raffie G. Visca Mason/Carpenter

tasked with the maintenance and repair of the resortfacilities; on May 8, 1999, Maria Nida Iigo-Taala, theFront Desk Officer/Sales Manager, informed them not toreport for work since the ongoing constructions andrepairs would be temporarily suspended because theycaused irritation and annoyance to the resort's guests;as instructed, they did not report for work the succeedingdays; John Munro, husband of petitioner Susan Munro,subsequently visited respondent foreman Visca andinformed him that the work suspension was due tobudgetary constraints; when respondent Visca laterdiscovered that four new workers were hired to dorespondents' tasks, he confronted petitioner Munro whoexplained that respondents' resumption of work was notpossible due to budgetary constraints; when not lessthan ten workers were subsequently hired by petitionersto do repairs in two cottages of the resort and twoworkers were retained after the completion without

respondents being allowed to resume work, they filedtheir individual complaints for illegal dismissal. Inaddition to reinstatement with payment of fulbackwages, respondents prayed for payment opremium pay for rest day, service incentive leave pay13th month pay, and cost-of-living allowance, plus moraand exemplary damages and attorney's fees.In their Position Paper,5 petitioners denied anyemployer-employee relationship with respondents andcountered that respondent Visca was an independencontractor who was called upon from time to time whensome repairs in the resort facilities were needed and theother respondents were selected and hired by him.On June 30, 2000, the Labor Arbiter (LA) rendered aDecision6 dismissing the complaint, holding tharespondent Visca was an independent contractor andthe other respondents were hired by him to help him withhis contracted works at the resort; that there was noillegal dismissal but completion of projects; tharespondents were project workers, not regulaemployees.On August 9, 2000, respondents filed a Memorandum ofAppeal7with the NLRC. No comment thereon was filed

by the petitioners.On August 29, 2002, the NLRC rendered aDecision,8setting aside the Decision of the LA andordering the payment to respondents of backwagescomputed from May 8, 1999 to July 31, 2002, 13 th monthpay and service incentive leave pay for three years, inaddition to 10% attorney's fees. The dispositive portionof the NLRC Decision reads:

WHEREFORE, the decision dated June 302000 of the Labor Arbiter is VACATED and SETASIDE and a new decision rendered declaringthe Illegal Dismissal of the complainant (sic) andordering respondent Susan Munro to pay the

complainants the following:1. Federico F. Visca P

2. Johnny G. Barredo P

3. Ronald Q. Tibus P

4. Richard C. Visca P

5. Raffie C. Visca P

P

6. Attorney's fees (10%) P

Total Award P

Petitioners failed to convince the NLRC that respondentVisca was not an independent contractor and the otherrespondents were selected and hired by him. The NLRCheld that respondents were regular employees opetitioners since all the factors determinative oemployer-employee relationship were present and thework done by respondents was clearly related topetitioners' resort business. It took into account thefollowing: (a) respondent Visca was reported bypetitioners as an employee in the Quarterly SociaSecurity System (SSS) report; (b) all of the respondentswere certified to by petitioner Munro as workers and
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even commended for their satisfactory performance; (c)respondents were paid their holiday and overtime pay;and (d) respondents had been continuously inpetitioners' employ from three to twelve years and wereall paid by daily wage given weekly.On November 18, 2002, petitioners filed a Motion forReconsideration, arguing that respondents were projectemployees.10 Petitioners also filed a Supplemental totheir Motion for Reconsideration.11No opposition oranswer to petitioners' motion for reconsideration andsupplement was filed by respondents despite duenotice.12

On February 27, 2003, the NLRC made a completeturnabout from its original decision and issued aResolution13 dismissing the complaint, holding thatrespondents were not regular employees but projectemployees, hired for a short period of time to do somerepair jobs in petitioners' resort business. Nonetheless, itordered payment of P10,000.00 to each complainant asfinancial assistance.Respondents then filed a Petition forCertiorari14with theCA raising three issues for resolution: (a) whether or notthe respondents were project employees of petitioners;

(b) whether or not the respondents' dismissal from workwas based on valid grounds; (c) whether or not theNLRC had sufficient basis to overturn its own decisiondespite its overwhelming findings that respondents wereillegally dismissed.On July 30, 2004, the CA rendered its assailedDecision,15 the dispositve portion of which reads:

WHEREFORE, in view of the foregoing,judgment is hereby rendered by us REVERSINGand SETTING ASIDE the NLRC Resolutiondated February 28, 2003, REINSTATING theNLRC Decision dated August 29, 2000 [sic], andORDERING the private respondents to pay

damages in the amount of P50,000.00. Theinstant case is hereby REMANDED to the4th Division NLRC, Cebu City for the purpose ofUPDATING the award promulgated in itsDecision dated August 29, 2000 [sic].SO ORDERED.16

The CA held respondents were regular employees, notproject workers, since in the years that petitionersrepeatedly hired respondents' services, the former failedto set, even once, specific periods when the employmentrelationship would be terminated; that the repeatedhiring of respondents established that the servicesrendered by them were necessary and desirable topetitioners' resort business; at the least, respondentswere regular seasonal employees, hired depending onthe tourist season and when the need arose inmaintaining petitioners' resort for the benefit of guests.In addition to the amounts granted by the NLRC in itsAugust 29, 2002 Decision, the CA awardedrespondents P50,000.00 as damages, since theirtermination was attended by bad faith, in that petitionersnot only gave respondents the run-around but alsoblatantly hired others to take respondents' place despitetheir claim that the so-called temporary stoppage of workwas due to budgetary constraints.

On August 18, 2004, petitioners filed a Motion foReconsideration,17but it was denied by the CA in aResolution18 dated February 2, 2005.Petitioners then filed the present petition19on thefollowing grounds:

ITHE HONORABLE COURT OF APPEALSERRED IN GIVING DUE COURSE TO THESPECIAL CIVIL ACTION UNDER RULE 65NOTWITHSTANDING THE FACT THATRESPONDENTS HAVE FAILED TO PROVETHE GRAVE ABUSE OF DISCRETIONAMOUNTING TO LACK OR EXCESS OFJURISDICTION THAT WOULD ALLOW THENULLIFICATION OF THE ASSAILEDRESOLUTION OF THE NATIONAL LABORRELATIONS COMMISSION.IITHE HONORABLE COURT OF APPEALSERRED IN REVERSING AND SETTING ASIDETHE RESOLUTION DATED FEBRUARY 272003 AND REINSTATING THE DECISIONDATED AUGUST 29, 2002 RENDERED BY

THE NATIONAL LABOR RELATIONSCOMMISSION.20

Petitioners argue that the CA erred in giving due courseto respondents' petition, since respondents failed torecite specifically how the NLRC abused its discretionan allegation essentially required in a petitionforcertiorariunder Rule 45 of the Rules of Court;thethree issues raised by respondents in their petitionbefore the CA required appreciation of the evidencepresented below and are therefore errors of judgmentnot of jurisdiction; that the factual findings of the LA andthe NLRC on the lack of employer-employee relationshipbetween petitioners and respondents should be

accorded not only respect but finality.On the other hand, respondents contend that the issuesraised by the petitioners call for reevaluation of theevidence presented by the parties, which is not proper inpetitions for review under Rule 45 of the Rules of Court;in any case, they argue that they have amply establishedthat they are regular employees of petitioners, since theirjobs as carpenters, which include the repairs of furnituremotor boats, cottages and windbreakers, are not at alforeign to the business of maintaining a beach resort.The petition is bereft of merit.The extent of judicial review by certiorariof decisions oresolutions of the NLRC, as exercised previously by thisCourt and now by the CA, is described in Zarate, Jr. vOlegario,21 thus:

The rule is settled that the original and exclusivejurisdiction of this Court to review a decision orespondent NLRC (or Executive Labor Arbiter asin this case) in a petition for certiorari under Rule65 does not normally include an inquiry into thecorrectness of its evaluation of the evidenceErrors of judgment, as distinguished from errorsof jurisdiction, are not within the province of aspecial civil action forcertiorari, which is merelyconfined to issues of jurisdiction or grave abuseof discretion.It is thus incumbent upon
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petitioner to satisfactorily establish thatrespondent Commission or executive laborarbiter acted capriciously and whimsically intotal disregard of evidence material to oreven decisive of the controversy, in orderthat the extraordinary writ ofcertiorariwilllie. By grave abuse of discretion is meant suchcapricious and whimsical exercise of judgmentas is equivalent to lack of jurisdiction, and itmust be shown that the discretion was exercisedarbitrarily or despotically. Forcertiorarito lie,there must be capricious, arbitrary andwhimsical exercise of power, the very antithesisof the judicial prerogative in accordance withcenturies of both civil law and common lawtraditions.22 (Emphasis supplied)

The CA, therefore, can take cognizance of a petitionforcertiorariif it finds that the NLRC, in its assaileddecision or resolution, committed grave abuse ofdiscretion by capriciously, whimsically, or arbitrarilydisregarding evidence which is material to or decisive ofthe controversy. The CA cannot make this determinationwithout looking into the evidence presented by the

parties. The appellate court needs to evaluate themateriality or significance of the evidence, which isalleged to have been capriciously, whimsically, orarbitrarily disregarded by the NLRC, in relation to allother evidence on record.23

In Garcia v. National Labor Relations Commission,24theCourt elucidated on when certiorarican be properlyresorted to, thus:

[I]n Ong v. People, we ruled that certioraricanbe properly resorted to where the factualfindings complained of are not supported bythe evidence on record. Earlier, in Gutib v.Court of Appeals, we emphasized thus:

[I]t has been said that a wide breadth ofdiscretion is granted a court of justicein certiorariproceedings. The cases inwhich certiorariwill issue cannot bedefined, because to do so would be todestroy its comprehensiveness andusefulness. So wide is the discretion ofthe court that authority is not wanting toshow that certiorariis more discretionarythan either prohibition or mandamus. Inthe exercise of our superintendingcontrol over inferior courts, we are to beguided by all the circumstances of eachparticular case "as the ends of justicemay require." So it is that the writ willbe granted where necessary toprevent a substantial wrong or to dosubstantial justice.

And in another case of recent vintage, we furtherheld:

In the review of an NLRC decisionthrough a special civil actionforcertiorari, resolution is confined onlyto issues of jurisdiction and grave abuseof discretion on the part of the labortribunal. Hence, the Court refrains from

reviewing factual assessments of lowercourts and agencies exercisingadjudicative functions, such as theNLRC. Occasionally, however, theCourt is constrained to delve intofactual matters where, as in theinstant case, the findings of theNLRC contradict those of the LaborArbiter.In this instance, the Court in theexercise of its equity jurisdiction maylook into the records of the case and re-examine the questioned findings. As acorollary, this Court is clothed withample authority to review matters, evenif they are not assigned as errors in theirappeal, if it finds that their considerationis necessary to arrive at a just decisionof the case. The same principles arenow necessarily adhered to and areapplied by the Court of Appeals in itsexpanded jurisdiction over laborcases elevated through a petition

forcertiorari; thus, we see no error onits part when it made anew a factuadetermination of the matters and on thabasis reversed the ruling of theNLRC.25(Emphasis supplied)

Thus, pursuant to Garcia, the appellate court can grant apetition for certiorari when the factual findingscomplained of are not supported by the evidence onrecord; when it is necessary to prevent a substantiawrong or to do substantial justice; when the findings ofthe NLRC contradict those of the LA; and whennecessary to arrive at a just decision of the case.26

In the present case, respondents alleged in its petition

with the CA that the NLRCs conclusions had no basis infact and in law, in that "it totally disregarded the evidenceof the [respondents] and gave credence to the[petitioners'] asseverations which were in themselvesinsufficient to overturn duly established facts andconclusions."27 Consequently, the CA was correct ingiving due course to the Petition forCertiorari, sincerespondents drew attention to the absence of substantiaevidence to support the NLRC's complete turnabout fromits original Decision dated August 29, 2002 finding thatrespondents were regular employees, to its subsequentResolution dated February 27, 2003 classifyingrespondents as project employees.The next issue before the Court is whether the CAcommitted an error in reversing the NLRC Resolutiondated February 27, 2003. The resolution of this issueprincipally hinges on the determination of the questionwhether respondents are regular or project employees.Generally, the existence of an employer-employeerelationship is a factual matter that will not be delved intoby this Court, since only questions of law may be raisedin petitions for review.28 However, the Court isconstrained to resolve the issue of whether respondentsare regular or permanent employees due to theconflicting findings of fact of the LA, the NLRC and the
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CA, thus, necessitating a review of the evidence onrecord.29

The petitioners were ambivalent in categorizingrespondents. In their Position Paper30 filed before theLA, petitioners classified respondent Visca as anindependent contractor and the other respondents as hisemployees; while in their Motion for Reconsideration31 before the NLRC, petitioners treatedrespondents as project employees.Further, petitioners' position in their Motion forReconsideration before the NLRC runs contrary to theirearlier submission in their Position Paper before the LA.While initially advancing the absence of an employer-employee relationship, petitioners on appeal, sang adifferent tune, so to speak, essentially invoking thetermination of the period of their employer-employeerelationship.The NLRC should not have considered the new theoryoffered by the petitioners in their Motion forReconsideration. As the object of the pleadings is todraw the lines of battle, so to speak, between thelitigants and to indicate fairly the nature of the claims ordefenses of both parties, a party cannot subsequently

take a position contrary to, or inconsistent, with hispleadings.32 It is a matter of law that when a party adoptsa particular theory and the case is tried and decidedupon that theory in the court below, he will not bepermitted to change his theory on appeal. The case willbe reviewed and decided on that theory and notapproached and resolved from a different point of view.To permit a party to change his theory on appeal will beunfair to the adverse party.33

At any rate, after a careful examination of the records,the Court finds that the CA did not err in finding thatrespondents were regular employees, not projectemployees. A project employee is one whose

"employment has been fixed for a specific project orundertaking, the completion or termination of which hasbeen determined at the time of the engagement of theemployee or where the work or service to be performedis seasonal in nature and the employment is for theduration of the season."34 Before an employee hired on aper-project basis can be dismissed, a report must bemade to the nearest employment office, of thetermination of the services of the workers every timecompletes a project, pursuant to Policy Instruction No.20.35

In the present case, respondents cannot be classified asproject employees, since they worked continuously forpetitioners from three to twelve years without anymention of a "project" to which they were specificallyassigned. While they had designations as "foreman,""carpenter" and "mason," they performed work otherthan carpentry or masonry. They were tasked with themaintenance and repair of the furniture, motor boats,cottages, and windbreakers and other resort facilities.There is likewise no evidence of the project employmentcontracts covering respondents' alleged periods ofemployment. More importantly, there is no evidence thatpetitioners reported the termination of respondents'supposed project employment to the DOLE as projectemployees. Department Order No. 19, as well as the old

Policy Instructions No. 20, requires employers to submita report of an employees termination to the nearestpublic employment office every time his employment isterminated due to a completion of a project. Petitionersfailure to file termination reports is an indication that therespondents were not project employees but regulaemployees.36

This Court has held that an employment ceases to becoterminous with specific projects when the employee iscontinuously rehired due to the demands of employersbusiness and re-engaged for many more projectswithout interruption.37

The Court is not persuaded by petitioners' submissionthat respondents' services are not necessary odesirable to the usual trade or business of the resortThe repeated and continuing need for their services issufficient evidence of the necessity, if noindispensability, of their services to petitioners' resorbusiness.38

In Maraguinot, Jr. v. National Labor RelationsCommission,39the Court ruled that "once a project owork pool employee has been: (1) continuously, asopposed to intermittently, rehired by the same employe

for the same tasks or nature of tasks; and (2) thesetasks are vital, necessary and indispensable to the usuabusiness or trade of the employer, then the employeemust be deemed a regular employee, pursuant to Article280 of the Labor Code and jurisprudence."40

That respondents were regular employees is furthebolstered by the following evidence: (a) the SSSQuarterly Summary of Contribution Payments41 listingrespondents as employees of petitioners; (b) the ServiceRecord Certificates stating that respondents wereemployees of petitioners for periods ranging from threeto twelve years and all have given "very satisfactoryperformance";42 (c) petty cash vouchers43showing

payment of respondents' salaries and holiday andovertime pays.Thus, substantial evidence supported the CA finding tharespondents were regular employees. Being regulaemployees, they were entitled to security of tenure, andtheir services may not be terminated except for causesprovided by law.Article 27944of the Labor Code, as amended, providesthat an illegally dismissed employee shall be entitled toreinstatement, full backwages, inclusive of allowancesand to his other benefits or their monetary equivalencomputed from the time his compensation was withheldfrom him up to the time of his actual reinstatement.The Court notes that the NLRC, in its earlier Decisiondated August 29, 2002 which was affirmed by the CAcomputed the award for backwages from May 8, 1999 toJuly 31, 2002 only. It is evident that respondentsbackwages should not be limited to said period. Thebackwages due respondents must be computed from thetime they were unjustly dismissed until actuareinstatement to their former positions. Thus, untipetitioners implement the reinstatement aspect, itsobligation to respondents, insofar as accrued backwagesand other benefits are concerned, continues toaccumulate.
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The fact that the CA failed to consider this when itaffirmed the August 29, 2002 decision of the NLRC orthat respondents themselves did not appeal the CADecision on this matter, does not bar this Court fromordering its modification. While as a general rule, a partywho has not appealed is not entitled to affirmative reliefother than the ones granted in the decision of the courtbelow, this Court is imbued with sufficient authority anddiscretion to review matters, not otherwise assigned aserrors on appeal, if it finds that their consideration isnecessary in arriving at a complete and just resolution ofthe case or to serve the interests of justice or to avoiddispensing piecemeal justice.45

Besides, substantive rights like the award of backwagesresulting from illegal dismissal must not be prejudiced bya rigid and technical application of the rules.46 Thecomputation of the award for backwages from the timecompensation was withheld up to the time of actualreinstatement is a mere legal consequence of the findingthat respondents were illegally dismissed by petitioners.WHEREFORE, the petition is DENIED. The assailedDecision dated July 30, 2004 and Resolution datedFebruary 2, 2005 of the Court of Appeals in CA-G.R. SP

No. 78620 are AFFIRMEDwithMODIFICATION that theaward for backwages should be computed from the timecompensation was withheld up to the time of actualreinstatement.Double costs against petitioners.SO ORDERED.

THIRD DIVISION

PNOC-ENERGY DEVELOPMENT G.R. No. 169353CORPORATION, Southern NegrosGeothermal Project,

Petitioner, Present:- versus

- YNARES-SANTIAGO,J.,

Chairperson,NATIONAL LABOR RELATIONS AUSTRIA-MARTINEZ,COMMISSION, Fourth Division, CALLEJO,SR.,Cebu City, and PNOC-EDC, CHICO-NAZARIO, andSNGPEU-ASSOCIATEDLABOR NACHURA, JJ.UNIONS-TUCP, LEONORA A.TORRES, ALEJANDRO B.TABAERA, JR., ARNEL T. AMOR,ROSELA S. CALIMPONG, WILSON Promulgated:D. NUAY, and ROBERTO S. RENZAL,

Respondents. April 13,2007x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - x

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is a Petition for Reviewon Certiorariof the Decision[1] of the Court of Appeals(CA) in CA-G.R. SP No. 77584 as well as itsResolution[2]dated August 11, 2005.The antecedents are as follows:

Petitioner PNOC-Energy DevelopmenCorporation is a government-owned and controlledcorporation engaged in the exploration, developmentand utilization of energy. It undertakes several projectsin areas where geothermal energy has beendiscovered. Each geothermal project undergoesthe stages of exploration, development, and utilization orproduction. For each stage, several activities are

undertaken such as drilling, construction, civil worksstructural works, mechanical works, and electrical worksuntil the project is finally completed. Aside from itsprojects in Negros Oriental, petitioner also hadgeothermal projects in Negros Occidental, Leyte, AlbaySorsogon, and North Cotabato.

Petitioners Southern Negros GeothermaProduction Field in Negros Oriental is divided into twophases: Palinpinon I (PAL I) and Palinpinon II (PAL II)To augment its manpower requirement occasioned bythe increased activities in the development of PAL IIpetitioner hired the following employees in the

Administration and Maintenance Section:

Name Date Hired Position DateSeparated

1) LeonoraTorres

July 3, 1995 Clerk/Typist June 30, 199

2) RoselaCalimpong

July 1, 1997 Clerk/Typist June 30, 199

3) ArnelAmor

May 24,1995

HelperMechanic

June 30, 199

4) WilsonNuay

May 16,1995

Service Driver June 30, 199

5) RobertoRenzal

January 25,1995

Pipe Fitter June 30, 199

6) AlejandroTabaera

February 27,1996

Mechanic June 30, 199

The termination/expiration of their respectiveemployment were specified in their initial employmencontracts, which, however, were renewed and extendedon their respective expiry dates.
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On May 29, 1998, petitioner submittedreports[3] to the Department of Labor and Employment(DOLE) Regional Sub-Branch No. VIIin Dumaguete City, stating that six of its employees werebeing terminated.

Petitioner thereafter furnished the employeesuniformly worded notices of termination, stating that theywere being terminated from employment effective June30, 1998 due to the substantial completion of the civilworks phase of PAL II.

On October 29, 1998, the six employees, hereinrespondents, filed before the National Labor RelationsCommission (NLRC) a complaint for illegal dismissalagainst petitioner. Aside from reinstatement,respondents sought the payment of backwages, salarydifferential, collective bargaining agreement benefits,damages and attorneys fees.

In their Position Paper, respondents averred that

they had rendered continuous and satisfactory servicesfrom the dates of their respective employment untilillegally dismissed on June 30, 1998:

NAMES MONTHS and YEARSOF SERVICE

1) Arnel Amor 3 years and 1 month2) RoselaCalimpong

2 years and 11months

3) Wilson Nuay 3 years and 1 month4) Roberto Renzal 3 years and 5 months5) AlejandroTabaera

2 years and 4 months

6) Leonora Torres 2 years and 11months

Respondents further contended that theirdismissal from employment was a clear case of unionbusting for they had previously sought unionmembership and actually filed a notice of strike.

For its part, petitioner asseverated thatrespondents were contractual employees; as such, theycannot claim to have been illegally dismissed becauseupon the expiration of the term of the contract or the

completion of the project, their employer-employeerelationship also ended.

After evaluating the evidence presented, the LaborArbiter rendered judgment dismissing the complaint forlack of legal and factual basis. [4] The Labor Arbiter ruledthat respondents were not dismissed from work; theemployer-employee relationship between the partieswas severed upon the expiration of the respectivecontracts of respondents and the completion of theprojects concerned.

Not satisfied, respondents interposed an appeal tothe NLRC which rendered judgment reversing thedecision of the Labor Arbiter. The dispositive portionreads:

WHEREFORE, the decision ofthe Labor Arbiter dated May 31, 1999 isSET ASIDE and a new one is renderedORDERING the respondent thefollowing:

(1) to immediately reinstate thefollowing complainants totheir respective positionswithout loss of seniorityrights and other privileges:

a) LEONORA TORRESb) ARNEL AMORc) WILSON NUAYd) ROBERTO RENZAL,

ande) ALEJANDRO

TABAERA;

(2) to pay each of thecomplainants his/herbackwages from July 1,1998 until actualreinstatement at the rateof P116.00 per day plushis/her 13th month pay andservice incentive leave payfor the same period.

(3) to pay attorneys fees

equivalent to ten percent(10%) of the total award.

The claim of Rosela Calimpongis dismissed for lack of merit.

SO ORDERED.[5]

The NLRC ratiocinated that respondents were

regular non-project employees for having worked fomore than one year in positions that required them toperform activities necessary and desirable in the normabusiness or trade of petitioner. The NLRC further ruledthat the employmencontracts of respondents were not for a specific projecor for a fixed period. According to the NLRC, thedismissals made on June 30, 1998 under the pretext ofproject completion were illegal, being founded on aninvalid, unjust, and unauthorized cause.

Respondents filed a motion for reconsiderationwhich the NLRC denied with modification in aResolution[6] dated March 19, 2003. Only respondenRosela Calimpong was granted relief.
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Aggrieved, petitioner filed a petitionforcertioraribefore the CA seeking to have the NLRCdecision reversed. It claimed that respondents wereengaged for one definite phase of petitionersgeothermal project, the execution and implementation ofthe civil works portion of the Fluid Collection andDisposal System (FCDS) and Associated Work Projects.Petitioner averred that at the time of respondentstermination, the projects had already been substantiallyif not fully completed.

On August 31, 2004, the CA dismissed thepetition. The fallo of the decision reads:

WHEREFORE, premisesconsidered, the petition ishereby DENIED. The assailed May 23,2001 Decision and March 19,2003 Resolution of the National LaborRelations Commission, Fourth Divisionof Cebu City are AFFIRMED.

SO ORDERED.[7]

The CA ruled that respondents were performingactivities necessary and desirable in the normaloperations of the business of petitioner. The appellatecourt explained that the repeated re-hiring and thecontinuing need for the services of the projectemployees over a span of time had made them regularemployees. The motion for reconsideration filed bypetitioner was denied by the CA in itsResolution[8] dated August 11, 2005.

Petitioner sought relief from this Court via

petition for review on certiorari.The pivotal questions involved in this case for

our resolution are: (a) whether respondents wereproject employees or regular employees; and (b)whether or not they were illegally dismissed fromemployment.

Petitioner argues that respondents are projectemployees because as gleaned from their standardcontracts of employment, they were hired for a specificproject or undertaking, the completion or termination ofwhich had been determined at the time of theirengagement. Their contracts clearly indicated thecompletion or termination of the specific project or of thespecific phase thereof at the time they were engaged.

For their part, respondents posit that they wereundeniably performing activities which are necessary ordesirable in the usual trade or business ofpetitioner. They aver that the completion of theirindividual employment was not determined at the time oftheir engagement due to the fact that their contractswere renewed and extended over and over again. Theyclaim that had the periods of their employment beendetermined, then their work with petitioner would not

have lasted beyond the three-month period provided intheir respective initial employment contracts. Theylikewise theorized that the contracts they signed wereshort-term contracts covering a long period of the sameactivity, not for a specific project or undertaking.

The contentions of petitioner have no merit.

Customarily, the findings made by the NLRC areafforded great respect and are even clothed with finalityand considered binding on this Court, except that whensuch findings are contrary to those of the Labor Arbiterthis Court may elect to re-examine the same, as we shalldo in this case now.

Article 280 of the Labor Code o

the Philippines states

Article 280. REGULAR ANDCASUAL EMPLOYEES. Theprovisions of written agreement to thecontrary notwithstanding and regardlessof the oral agreement of the parties, an

employment shall be deemed to beregular where the employee has beenengaged to perform activities which areusually necessary or desirable in theusual business or trade of the employer,except where the employment has beenfixed for a specific project or undertakingthe completion or termination of whichhas been determined at the time of theengagement of the employee or wherethe work or services to be performed isseasonal in nature and the employmentis for the duration of the season.

An employment shall bedeemed to be casual if it is not coveredby the preceding paragraph. Provided,That, any employee who has renderedat least one year of service, whethersuch service is continuous or broken,shall be considered a regular employeewith respect to the activity in which he isemployed and his employment shallcontinue while such activity exists.

Thus, the applicable formula to ascertain

whether an employment should be considered regular onon-regular is the reasonable connection between theparticular activity performed by the employee in relationto the usual business or trade of the employer. [9] As weheld in Grandspan Development Corporation vBernardo:[10]

The principal test for

determining whether particularemployees are properly characterizedas project employees, as distinguishedfrom regular employees, is whether ornot the project employees were
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assigned to carry out a specific projector undertaking, the duration and scopeof which were specified at the time theemployees were engaged for thatproject.[11]

As defined, project employees are those workers hired(1) for a specific project or undertaking, and (2) thecompletion or termination of such project or undertakinghas been determined at the time of the engagement ofthe employee.[12] However, petitioner failed tosubstantiate itsclaim that respondents were hired merely as projectemployees. A perusal of the records of the case revealsthat the supposed specific project or undertaking ofpetitioner was not satisfactorily identified in the contractsof respondents. To illustrate, the following is a list of thenames of respondents and the projects written in theiremployment contracts:NAMES PROJECT NAMELeonora A.Torres

Additional Manpower cover additionalworkloads of PAL II transferred to PAL I

Operations,[13] PAL II Transfer to PAL IOperations[14]

Arnel T.Amor

EDC-Drilling,[15]Maintenance of DrillingMaterials,[16] Assist in Repair Maintenanceof Vehicles/Equipments at EquipmentMaintenance Section[17]

Wilson D.Nuay

EDC Drilling Activities,[18] Rig #3 Operationon OK-3RWOBL-2DWO,[19] Maintenance ofDrilling Materials,[20]LG4D DrillingOperation,[21] SNGP FCDS Project,[22]Fabrication Personal Driver for CDTurned-Over Projects[23]

Roberto S.

Renzal

PAL II FCDS Nasuji-NJA RI Line and

Associated Works,[24]PAL II FCDSPN33/PN25 Branchline/ Nasuji-NJA-Sogongon,[25] SNGP FCDS Project,[26]Cawayan Restoration Works,[27] SNGPFCDS Project PAL I/PAL IIRefurbishments,[28]Support Workloadincrease in Fabrication/EquipmentMaintenance Section[29]

Alejandro B.Tabaera,Jr.

Temporary Increase in Workload ofMaintenance and Repair Activities of Lightand Heavy Equipment,[30]Troubleshooting/Repair of AllEquipments[31]

Rosela S.Calimpong

PAL II Transfer to PAL I OperationsClerical Workloads,[32]Additional Manpowerto cover additional workloads of PAL IItransferred to PAL I Operations[33]

Unmistakably, the alleged projects stated in theemployment contracts were either too vague orimprecise to be considered as the specific undertakingcontemplated by law. Petitioners act of repeatedly andcontinuously hiring respondents to do the same kind ofwork belies its contention that respondents were hired

for a specific project or undertaking. The absence of adefinite duration for the project/s has led the Court toconclude that respondents are, in fact, regulaemployees.

Another cogent factor which militates againspetitioners insistence that the services of respondentswere terminated because the projects for which theywere hired had been completed is the fact tharespondents contracts of employment were extended anumber of times fordifferent or new projects. It musbe stressed that a contract that misuses a purportedfixed-term employment to block the acquisition of tenureby employees deserves to be struck down for beingcontrary to law, morals, good customs, public order andpublic policy.[34]

In Filipinas Pre-Fabricated Building Systems

(Filsystems), Inc. v. Puente,[35] the Court ruled that thelength of service of a project employee is not thecontrolling test of employment tenure but whether or nothe employment has been fixed for a specific project orundertaking the completion or termination of which has

been determined at the time of the engagement of theemployee.[36] Indeed, while length of time may not bethe controlling test for project employment, it is vital indetermining if the employee was hired for a specificundertaking or tasked to perform functions vitalnecessary and indispensable to the usual business ortrade of the employer. Here, respondents had beenproject employees several timesover. Their employment ceased to be coterminous withspecific projects when they were repeatedly re-hired bypetitioner.[37] Where the employment of projecemployees is extended long after the supposed projecthas been finished, the employees are removed from the

scope of project employees and are considered regulaemployees.[38]

As regular workers, respondents are entitled to

security of tenure under Article 279 of the Labor Codeand can only be dismissed for a just or authorizedcause. Article 279 of the Labor Code provides:

Article. 279. SECURITY OFTENURE. In cases of regular employment, the employer shall notterminate the services of an employeeexcept for a just cause or whenauthorized by this Title. An employeewho is unjustly dismissed from workshall be entitled to reinstatement withoutloss of seniority rights and otherprivileges and to his full backwages,inclusive of allowances, and to his otherbenefits or their monetary equivalentcomputed from the time hiscompensation was withheld from him upto the time of his actual reinstatement.
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In termination cases, it is incumbent upon theemployer to prove by the quantum of evidence requiredby law that the dismissal of an employee is not illegal;otherwise the dismissal would be unjustified. [39] In thecase at bar, petitioner failed to discharge the burden.

The notices of termination indicated thatrespondents services were terminated due to thecompletion of the project. However, this allegation iscontrary to the statement of petitioner in some of itspleadings that the project was merely substantiallycompleted. There is likewise no proof that the project,or the phase of work to which respondents had beenassigned, was already completed at the time of theirdismissal.

Since respondents were illegally dismissed from

work, they are entitled to reinstatement without loss ofseniority rights, full backwages,inclusive of allowances and other benefits or theirmonetary equivalent computed from the time theircompensation was withheld from them up to the time oftheir actual reinstatement, pursuant to Article 279 of the

Labor Code.[40]

WHEREFORE, in the light of the foregoing, thepetition is DENIED. The Decision of the Court ofAppeals in CA-G.R. SP No. 77584 and the ResolutionareAFFIRMED. No costs.

SO ORDERED.

FIRST DIVISION

[G.R. No. 152427. August 9, 2005]

INTEGRATED CONTRACTOR AND PLUMBINGWORKS, INC.,petitioner, vs. NATIONALLABOR RELATIONS COMMISSION and GLENSOLON, respondents.

D E C I S I O N

QUISUMBING, J.:

This petition for review assails the Decision[1]datedOctober 30, 2001 of the Court of Appeals andits Resolution[2] dated February 28, 2002 in CA-G.R. SPNo. 60136, denying the petitioners motion forreconsideration for lack of merit. The decision affirmedthe National Labor Relations Commission (NLRC) whichdeclared private respondent Glen Solon a regularemployee of the petitioner and awarded him 13 th monthpay, service incentive leave pay, reinstatement to hisformer position with full backwages from the time hissalary was withheld until his reinstatement.

Petitioner is a plumbing contractor. Its businessdepends on the number and frequency of the projects itis able to contract with its clients.[3]

Private respondent Solon worked for petitioner. Hisemployment records is as follows:

December 14, 1994 up to January 14, 1995 StCharbel Warehouse

February 1, 1995 up to April 30,

1995 St. Charbel WarehouseMay 23, 1995 up to June 23,1995 St. Charbel WarehouseAugust 15, 1995 up to October 31,1995 St. Charbel WarehouseNovember 2, 1995 up to January 31,1996 St. Charbel WarehouseMay 13, 1996 up to June 15,1996 Ayala TriangleAugust 27, 1996 up to November 30,1996 St. Charbel Warehouse[4]

July 14, 1997 up to November 1997ICPWI Warehouse

November 1997 up to January 5,1998 Cathedral HeightsJanuary 6, 1998Rockwell Center[5]

On February 23, 1998, while private respondenwas about to log out from work, he was informed by thewarehouseman that the main office had instructed themto tell him it was his last day of work as he had beenterminated. When private respondent went to thepetitioners office on February 24, 1998 to verify hisstatus, he found out that indeed, he had beenterminated. He went back to petitioners office on

February 27, 1998 to sign a clearance so he could claimhis 13th month pay and tax refunds. However, he hadsecond thoughts and refused to sign the clearance whenhe read the clearance indicating he had resigned. OnMarch 6, 1998, he filed a complaint alleging that he wasillegally dismissed without just cause and without dueprocess.[6]

In a Decision dated February 26, 1999, the LaboArbiter ruled that private respondent was a regulaemployee and could only be removed for cause.Petitioner was ordered to reinstate private respondent tohis former position with full backwages from the time hissalary was withheld until his actual reinstatement, and

pay him service incentive leave pay, and 13 th month payfor three years in the amount of P2,880 and P14,976respectively.

Petitioner appealed to the National Labor RelationsCommission (NLRC), which ruled:

WHEREFORE, prescinding from the foregoing and inthe interest of justice, the decision of the Labor Arbiter ishereby AFFIRMED with a MODIFICATION that the13th month pay should be given only for the year 1997and portion of 1998. Backwages shall be computedfrom the time he was illegally dismissed up to the time of
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his actual reinstatement. Likewise, service incentiveleave pay for three (3) years is also awarded to appelleein the amount of P2,880.00.

SO ORDERED.[7]

Petitioners Motion for Reconsideration was denied.[8]

Petitioner appealed to the Court of Appeals,alleging that the NLRC committed grave abuse ofdiscretion in finding that the private respondent was aregular employee and in awarding 13th month pay,service incentive leave pay, and holiday pay to theprivate respondent despite evidence of payment. Thesaid petition was dismissed for lack of merit. [9]

Before us now, petitioner raises the followingissues: (1) Whether the respondent is a projectemployee of the petitioner or a regular employee; and(2) Whether the Court of Appeals erred seriously inawarding 13th month pay for the entire year of 1997 andservice incentive leave pay to the respondent and

without taking cognizance of the evidence presented bypetitioner.[10]

Thepetitioner asserts that the private respondentwas a project employee. Thus, when the project wascompleted and private respondent was not re-assignedto another project, petitioner did not violate any law sinceit was petitioners discretion to re-assign the privaterespondent to other projects.[11]

Article 280 of the Labor Code states:

The provisions of written agreement of the contrarynotwithstanding and regardless of the oral agreement of

the parties, an employment shall be deemed to beregular where the employee has been engaged toperform activities which are usually necessary ordesirable in the usual business or trade of theemployer, except where the employment has been fixedfor a specific project or undertaking the completion ortermination of which has been determined at the time ofthe engagement of the employee or where the work orservices to be performed is seasonal in nature and theemployment is for the duration of the season (Italicssupplied.)

We held in Tomas Lao Construction v. NLRC[12] that

the principal test in determining whether an employee isa project employee or regular employee, is, whetherhe is assigned to carry out a specific project orundertaking, the duration (and scope) of which arespecified at the time the employee is engaged in theproject.[13]Project refers to a particular job orundertaking that is within the regular or usual businessof the employer, but which is distinct and separate andidentifiable from the undertakings of the company. Suchjob or undertaking begins and ends at determined ordeterminable times.[14]

In our review of the employment contracts of privaterespondent, we are convinced he was initially a projectemployee. The services he rendered, the duration andscope of each project are clear indications that he washired as a project employee.

We concur with the NLRC that while there wereseveral employment contracts between privaterespondent and petitioner, in all of them, privaterespondent performed tasks which were usually

necessary or desirable in the usual business or trade ofpetitioner. A review of private respondents workassignments patently showed he belonged to a workpool tapped from where workers are and assignedwhenever their services were needed. In a work poolthe workers do not receive salaries and are free to seekother employment during temporary breaks in thebusiness. They are like regular seasonal workersinsofar as the effect of temporary cessation of work isconcerned. This arrangement is beneficial to both theemployer and employee for it prevents the unjussituation of coddling labor at the expense of capital andat the same time enables the workers to attain the status

of regular employees.[15]

Nonetheless, the pattern of rehiring and the recurring need for his services aresufficient evidence of the necessity and indispensabilityof such services to petitioners business or trade.[16]

In Maraguinot, Jr. v. NLRC[17] we ruled that once aproject or work pool employee has been: (1)continuously, as opposed to intermittently, re-hired bythe same employer for the same tasks or nature oftasks; and (2) these tasks are vital, necessary andindispensable to the usual business or trade of theemployer, then the employee must be deemed a regularemployee.

In this case, did the private respondent become aregular employee then?

The test to determine whether employment isregular or not is the reasonable connection between theparticular activity performed by the employee in relationto the usual business or trade of the employer. Also, ithe employee has been performing the job for at leasone year, even if the performance is not continuous omerely intermittent, the law deems the repeated andcontinuing need for its performance as sufficienevidence of the necessity, if not indispensability of thatactivity to the business.[18] Thus, we held that where theemployment of project employees is extended long afte

the supposed project has been finished, the employeesare removed from the scope of project employees andare considered regular employees.[19]

While length of time may not be the controlling testfor project employment, it is vital in determining if theemployee was hired for a specific undertaking or taskedto perform functions vital, necessary and indispensableto the usual business or trade of the employer. Hereprivate respondent had been a project employee severatimes over. His employment ceased to be coterminouswith specific projects when he was repeatedly re-hireddue to the demands of petitioners business.[20] Where
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from the circumstances it is apparent that periods havebeen imposed to preclude the acquisition of tenurialsecurity by the employee, they should be struck down ascontrary to public policy, morals, good customs or publicorder.[21]

Further, Policy Instructions No. 20 requiresemployers to submit a report of an employeestermination to the nearest public employment officeevery time his employment was terminated due to a

completion of a project. The failure of the employer tofile termination reports is an indication that the employeeis not a project employee.[22] Department Order No. 19superseding Policy Instructions No. 20 also expresslyprovides that the report of termination is one of theindications of project employment.[23]In the case at bar,there was only one list of terminated workers submittedto the Department of Labor and Employment. [24] If privaterespondent was a project employee, petitioner shouldhave submitted a termination report for every completionof a project to which the former was assigned.

Juxtaposing private respondents employmenthistory, vis the requirements in the test to determine if heis a regular worker, we are constrained to say he is.

As a regular worker, private respondent is entitledto security of tenure under Article 279 of the LaborCode[25] and can only be removed for cause. We foundno valid cause attending to private respondentsdismissal and found also that his dismissal was withoutdue process.

Additionally, Article 277(b) of the Labor Codeprovides that

... Subject to the constitutional right of workers tosecurity of tenure and their right to be protected againstdismissal except for a just and authorized cause andwithout prejudice to the requirement of notice underArticle 283 of this Code, the employer shall furnish theworker whose employment is sought to be terminated awritten notice containing a statement of the causes fortermination and shall afford the latter ample opportunityto be heard and to defend himself with the assistance ofhis representative if he so desires in accordance withcompany rules and regulations promulgated pursuant toguidelines set by the Department of Labor andEmployment

The failure of the petitioner to comply with theseprocedural guidelines renders its dismissal of privaterespondent, illegal. An illegally dismissed employee isentitled to reinstatement with full backwages, inclusive ofallowances, and to his other benefits computed from thetime his compensation was withheld from him up to thetime of his actual reinstatement, pursuant to Article 279of the Labor Code.

However, we note that the private respondent hadbeen paid his 13th month pay for the year 1997. TheCourt of Appeals erred in granting the same to him.

Article 95(a) of the Labor Code governs the awardof service incentive leave. It provides that everyemployee who has rendered at least one year of serviceshall be entitled to a yearly service incentive leave of fivedays with pay, and Section 3, Rule V, Book III of theImplementing Rules and Regulations, defines the termat least one year of service to mean service within 12months, whether continuous or broken reckoned fromthe date the employee started working, includingauthorized absences and paid regular holidays, unlessthe working days in the establishment as a matter ofpractice or policy, or that provided in the employmentcontract is less than 12 months, in which case saidperiod shall be considered as one year. Accordinglyprivate respondents service incentive leave credits ofive days for every year of service, based on the actuaservice rendered to the petitioner, in accordance witheach contract of employment should be computed up tothe date of reinstatement pursuant to Article 279 of theLabor Code.[26]

WHEREFORE, the assailed Decision datedOctober 30, 2001 and the Resolution dated February 28

2002 of the Court of Appeals in CA-G.R. SP No. 60136,are AFFIRMED with MODIFICATION. The petitioner ishereby ORDERED to (1) reinstate the respondent withno loss of seniority rights and other privileges; and (2)pay respondent his backwages, 13 thmonth pay for theyear 1998 and Service Incentive Leave Pay computedfrom the date of his illegal dismissal up to the date of hisactual reinstatement. Costs against petitioner.

SO ORDERED.

THIRD DIVISION

[G.R. No. 149440. January 28, 2003]

HACIENDA FATIMA and/or PATRICIO VILLEGASALFONSO VILLEGAS and CRISTINESEGURA,petitioners, vs. NATIONALFEDERATION OF SUGARCANE WORKERSFOOD AND GENERAL TRADE, respondents.

D E C I S I O N

PANGANIBAN, J.:

Although the employers have shown tharespondents performed work that was seasonal innature, they failed to prove that the latter worked only fothe duration of one particular season. In fact, petitionersdo not deny that these workers have served them forseveral years already. Hence, they are regular -- notseasonal -- employees.
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The Case

Before the Court is a Petition for Review under Rule45 of the Rules of Court, seeking to set aside theFebruary 20, 2001 Decision of the Court ofAppeals[1] (CA) in CA-GR SP No. 51033. The dispositivepart of the Decision reads:

WHEREFORE, premises considered, the instant specialcivil action forcertiorariis hereby DENIED.[2]

On the other hand, the National Labor RelationsCommission (NLRC) Decision,[3] upheld by the CA,disposed in this wise:

WHEREFORE, premises considered, the decision ofthe Labor Arbiter ishereby SETASIDE and VACATED and a new oneentered declaring complainants to have been illegallydismissed. Respondents are hereby ORDERED toreinstate complainants except Luisa Rombo, Ramona

Rombo, Bobong Abriga and Boboy Silva to theirprevious position and to pay full backwages fromSeptember 1991 until reinstated. Respondents beingguilty of unfair labor practice are further ordered to paycomplainant union the sum of P10,000.00 as moraldamages and P5,000.00 as exemplary damages.[4]

The Facts

The facts are summarized in the NLRC Decision asfollows:

Contrary to the findings of the Labor Arbiter thatcomplainants [herein respondents] refused to workand/or were choosy in the kind of jobs they wanted toperform, the records is replete with complainantspersistence and dogged determination in going back towork.

Indeed, it would appear that respondents did not lookwith favor workers having organized themselves into aunion. Thus, when complainant union was certified asthe collective bargaining representative in thecertification elections, respondents under the pretext that

the result was on appeal, refused to sit down with theunion for the purpose of entering into a collectivebargaining agreement. Moreover, the workers includingcomplainants herein were not given work for more thanone month. In protest, complainants staged a strikewhich was however settled upon the signing of aMemorandum of Agreement which stipulated amongothers that:

a) The parties will initially meet for CBAnegotiations on the 11th day of January 1991 and willendeavor to conclude the same within thirty (30) days.

b) The management will give priority to thewomen workers who are members of the union in casework relative x x x or amount[ing] to gahitand [dipolarises.

c) Ariston Eruela Jr. will be given back his normawork load which is six (6) days in a week.

d) The management will provide fifteen (15

wagons for the workers and that existing workforce priorto the actual strike will be given priority. However, incase the said workforce would not be enough, themanagement can hire additional workers to supplementhem.

e) The management will not anymore allow thescabs, numbering about eighteen (18) workers[,] to workin the hacienda; and

f) The union will immediately lift the picket uponsigning of this agreement.

However, alleging that complainants failed to load thefifteen wagons, respondents reneged on its commitmento sit down and bargain collectively. Instead, respondenemployed all means including the use of private armedguards to prevent the organizers from entering thepremises.

Moreover, starting September 1991, respondents didnot any more give work assignments to the complainantsforcing the union to stage a strike on January 21992. But due to the conciliation efforts by the DOLEanother Memorandum of Agreement was signed by thecomplainants and respondents which provides:

Whereas the union staged a strike against managemenon January 2, 1992 grounded on the dismissal of theunion officials and members;

Whereas parties to the present dispute agree to settlethe case amicably once and for all;

Now therefore, in the interest of both labor andmanagement, parties herein agree as follows:

1. That the list of the names of affected union

members hereto attached and made part of thisagreement shall be referred to the Hacienda payroll of1990 and determine whether or not this concernedUnion members are hacienda workers;

2. That in addition to the payroll of 1990 asreference, herein parties will use as guide the subjects ofa Memorandum of Agreement entered into by andbetween the parties last January 4, 1990;

3. That herein parties can use other employmenreferences in support of their respective claims whetheor not any or all of the listed 36 union members are
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employees or hacienda workers or not as the case maybe;

4. That in case conflict or disagreement arises inthe determination of the status of the particular haciendaworkers subject of this agreement herein parties furtheragree to submit the same to voluntary arbitration;

5. To effect the above, a Committee to be chaired

by Rose Mengaling is hereby created to be composed ofthree representatives each and is given five workingdays starting Jan. 23, 1992 to resolve the status of thesubject 36 hacienda workers. (Unionrepresentatives: Bernardo Torres, Martin Alas-as,Ariston Arulea Jr.)

Pursuant thereto, the parties subsequently met and theMinutes of the Conciliation Meeting showed as follows:

The meeting started at 10:00 A.M. A list of employeeswas submitted by Atty. Tayko based on who receivedtheir 13th month pay. The following are deemed not

considered employees:

1. Luisa Rombo

2. Ramona Rombo

3. Bobong Abrega

4. Boboy Silva

The name Orencio Rombo shall be verified in the 1990payroll.

The following employees shall be reinstatedimmediately upon availability of work:

1. Jose Dagle 7. AlejandroTejares

2. Rico Dagle 8. GaudiosoRombo

3. Ricardo Dagle 9. Martin Alas-asJr.

4. Jesus Silva 10. CresensioAbrega

5. Fernando Silva 11. Ariston EruelaSr.

6. Ernesto Tejares 12. Ariston EruelaJr.

When respondents again reneged on its commitment,complainants filed the present complaint.

But for all their persistence, the risk they had to undergoin conducting a strike in the face of overwhelming oddscomplainants in an ironic twist of fate now findthemselves being accused of refusing to work and beingchoosy in the kind of work they have toperform.[5](Citations omitted)

Ruling of the Court of Appeals

The CA affirmed that while the work of respondentswas seasonal in nature, they were considered to bemerely on leave during the off-season and weretherefore still employed by petitioners. Moreover, theworkers enjoyed security of tenure. Any infringemenupon this right was deemed by the CA to be tantamountto illegal dismissal.

The appellate court found neither rhyme noreason in petitioners argument that it was the workersthemselves who refused to or were choosy in theiwork. As found by the NLRC, the record of this case is

replete with complainants persistence and doggeddetermination in going back to work. [6]

The CA likewise concurred with the NLRCs findingthat petitioners were guilty of unfair labor practice.

Hence this Petition.[7]

Issues

Petitioners raise the following issues for the Courtsconsideration:

A. Whether or not the Court of Appeals erredin holding that respondents, admittedlyseasonal workers, were regular employees,contrary to the clear provisions of Article280 of the Labor Code, which categoricallystate that seasonal employees are notcovered by the definition of regularemployees under paragraph 1, nor coveredunder paragraph 2 which refers exclusivelyto casual employees who have served forat least one year.

B. Whether or not the Court of Appeals erredin rejecting the ruling in Mercado, xxx, andrelying instead on rulings which are notdirectly applicable to the case at bench,viz, Philippine Tobacco, Bacolod-Murcia,and Gaco, xxx.

C. Whether or not the Court of Appealscommitted grave abuse of discretion inupholding the NLRCs conclusion thatprivate respondents were illegallydismissed, that petitioner[s were] guilty ofunfair labor practice, and that the union beawarded moral and exemplary damages.[8]
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Consistent with the discussion in petitionersMemorandum, we shall take up Items A and B as thefirst issue and Item C as the second.

The Courts Ruling

The Petition has no merit.

First Issue:Regular Employment

At the outset, we must stress that only errors of laware generally reviewed by this Court in petitions forreview on certiorari of CA decisions. [9] Questions of factare not entertained.[10]The Court is not a trier of factsand, in labor cases, this doctrine applies with greaterforce.[11] Factual questions are for labor tribunals toresolve.[12] In the present case, these have already been

threshed out by the NLRC. Its findings were affirmed bythe appellate court.

Contrary to petitioners contention, the CA did noterr when it held that respondents were regularemployees.

Article 280 of the Labor Code, as amended, states:

Art. 280. Regular and Casual Employment. - Theprovisions of written agreement to the contrarynotwithstanding and regardless of the oral agreement ofthe parties, an employment shall be deemed to beregular where the employee has been engaged to

perform activities which are usually necessary ordesirable in the usual business or trade of the employer,except where the employment has been fixed for aspecific project or undertaking the completion ortermination of which has been determined at the time ofthe engagement of the employee or where the work orservices to be performed is seasonal in nature andtheemployment is for the duration of the season.

An employment shall be deemed to be casual if it is notcovered by the preceding paragraph: Provided, That,any employee who has rendered at least one year ofservice, whether such service is continuous or broken,

shall be considered a regular employee with respect tothe activity in which he is employed and his employmentshall continue while such activity exist. (Italics supplied)

For respondents to be excluded from thoseclassified as regular employees, it is not enough thatthey perform work or services that are seasonal innature. They must have also been employed only forthe duration of one season. The evidence proves theexistence of the first, but not of the second,condition. The fact that respondents -- with theexception of Luisa Rombo, Ramona Rombo, Bobong

Abriga and Boboy Silva -- repeatedly worked assugarcane workers for petitioners for several years is notdenied by the latter. Evidently, petitioners employedrespondents for more than one season. Therefore, thegeneral rule of regular employment is applicable.

InAbasolo v. National Labor RelationsCommission,[13]the Court issued this clarification:

[T]he test of whether or not an employee is a regular

employee has been laid down in De Leon v. NLRC, inwhich this Court held:

The primary standard, therefore, of determining regularemployment is the reasonable connection between theparticular activity performed by the employee in relationto the usual trade or business of the employer. The tesis whether the former is usually necessary or desirable inthe usual trade or business of the employer. Theconnection can be determined by considering the natureof the work performed and its relation to the scheme ofthe particular business or trade in its entirety. Also if theemployee has been performing the job for at least a

year, even if the performance is not continuous andmerely intermittent, the law deems repeated andcontinuing need for its performance as sufficienevidence of the necessity if not indispensability of thatactivity to the business. Hence, the employment isconsidered regular, but only with respect to such activityand while such activity exists.

x x x x xx x x x

x x x [T]he fact that [respondents] do not workcontinuously for one whole year but only for the duration

of the x x x season does not detract from consideringthem in regular employment since in a litany of casesthis Court has already settled that seasonal workers whoare called to work from time to time and are temporarilylaid off during off-season are not separated from servicein said period, but merely considered on leave until re-employed.[14]

The CA did not err when it ruled that Mercado vNLRC[15] was not applicable to the case at bar. In theearlier case, the workers were required to performphases of agricultural work for a definite period of timeafter which their services would be available to any other

farm owner. They were not hired regularly andrepeatedly for the same phase/s of agricultural work, buton and off for any single phase thereof. On the othehand, herein respondents, having performed the sametasks for petitioners every season for several years, areconsidered the latters regular employees for theirespective tasks. Petitioners eventual refusal to usetheir services -- even if they were ready, able and willingto perform their usual duties whenever these wereavailable -- and hiring of other workers to perform thetasks originally assigned to respondents amounted toillegal dismissal of the latter.
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