Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 70705 August 21, 1989

MOISES DE LEON,   petitioner,   vs.NATIONAL LABOR RELATIONS COMMISSION and LA TONDEÑ;A INC.,   respondents.

Amorito V. Canete for petitioner.

Pablo R. Cruz for private respondent.

 

FERNAN, C.J.:

This petition for certiorari seeks to annul and set aside: (1) the majority decision dated January 28, 1985 of the National Labor Relations Commission First Division in Case No. NCR- 83566-83, which reversed the Order dated April 6,1984 of Labor Arbiter Bienvenido S. Hernandez directing the reinstatement of petitioner Moises de Leon by private respondent La Tondeñ;a Inc. with payment of backwages and other benefits due a regular employee; and, (2) the Resolution dated March 21, 1985 denying petitioner's motion for reconsideration.

It appears that petitioner was employed by private respondent La Tondeñ;a Inc. on December 11, 1981, at the Maintenance Section of its Engineering Department in Tondo, Manila. 1 His work consisted mainly of painting company building and equipment, and other odd jobs relating to maintenance. He was paid on a daily basis through petty cash vouchers.

In the early part of January, 1983, after a service of more than one (1) year, petitioner requested from respondent company that lie be included in the payroll of regular workers, instead of being paid through petty cash vouchers. Private respondent's response to this request was to dismiss petitioner from his employment on January 16, 1983. Having been refused reinstatement despite repeated demands, petitioner filed a complaint for illegal dismissal, reinstatement and payment of backwages before the Office of the Labor Arbiter of the then Ministry now Department of Labor and Employment.

Petitioner alleged that he was dismissed following his request to be treated as a regular employee; that his work consisted of painting company buildings and maintenance chores like cleaning and operating company equipment, assisting Emiliano Tanque Jr., a regular maintenance man; and that weeks after his dismissal, he was re-hired by the respondent company

indirectly through the Vitas-Magsaysay Village Livelihood Council, a labor agency of respondent company, and was made to perform the tasks which he used to do. Emiliano Tanque Jr. corroborated these averments of petitioner in his affidavit. 2

On the other hand, private respondent claimed that petitioner was not a regular employee but only a casual worker hired allegedly only to paint a certain building in the company premises, and that his work as a painter terminated upon the completion of the painting job.

On April 6, 1984, Labor Arbiter Bienvenido S. Hernandez rendered a decision 3 finding the complaint meritorious and the dismissal illegal; and ordering the respondent company to reinstate petitioner with full backwages and other benefits. Labor Arbiter Hernandez ruled that petitioner was not a mere casual employee as asserted by private respondent but a regular employee. He concluded that the dismissal of petitioner from the service was prompted by his request to be included in the list of regular employees and to be paid through the payroll and is, therefore, an attempt to circumvent the legal obligations of an employer towards a regular employee.

Labor Arbiter Hernandez found as follows:

After a thorough examination of the records of the case and evaluation of the evidence and versions of the parties, this Office finds and so holds that the dismissal of complainant is illegal. Despite the impressive attempt of respondents to show that the complainant was hired as casual and for the work on particular project, that is the repainting of Mama Rosa Building, which particular work of painting and repainting is not pursuant to the regular business of the company, according to its theory, we find differently. Complainant's being hired on casual basis did not dissuade from the cold fact that such painting of the building and the painting and repainting of the equipment and tools and other things belonging to the company and the odd jobs assigned to him to be performed when he had no painting and repainting works related to maintenance as a maintenance man are necessary and desirable to the better operation of the business company. Respondent did not even attempt to deny and refute the corroborating statements of Emiliano Tanque Jr., who was regularly employed by it as a maintenance man doing same jobs not only of painting and repainting of building, equipment and tools and machineries or machines if the company

but also other odd jobs in the Engineering and Maintenance Department that complainant Moises de Leon did perform the same odd jobs and assignments as were assigned to him during the period de Leon was employed for more than one year continuously by Id respondent company. We find no reason not to give credit and weight to the affidavit and statement made therein by Emiliano Tanque Jr. This strongly confirms that complainant did the work pertaining to the regular business in which the company had been organized. Respondent cannot be permitted to circumvent the law on security of tenure by considering complainant as a casual worker on daily rate basis and after working for a period that has entitled him to be regularized that he would be automatically terminated. ... . 4

On appeal, however, the above decision of the Labor Arbiter was reversed by the First Division of the National Labor Relations Commission by virtue of the votes of two members 5 which constituted a majority. Commissioner Geronimo Q. Quadra dissented, voting "for the affirmation of the well-reasoned decision of the Labor Arbiter below." 6 The motion for reconsideration was denied. Hence, this recourse.

Petitioner asserts that the respondent Commission erred and gravely abuse its discretion in reversing the Order of the Labor Arbiter in view of the uncontroverted fact that the tasks he performed included not only painting but also other maintenance work which are usually necessary or desirable in the usual business of private respondent: hence, the reversal violates the Constitutional and statutory provisions for the protection of labor.

The private respondent, as expected, maintains the opposite view and argues that petitioner was hired only as a painter to repaint specifically the Mama Rosa building at its Tondo compound, which painting work is not part of their main business; that at the time of his engagement, it was made clear to him that he would be so engaged on a casual basis, so much so that he was not required to accomplish an application form or to comply with the usual requisites for employment; and that, in fact, petitioner was never paid his salary through the regular payroll but always through petty cash vouchers. 7

The Solicitor General, in his Comment, recommends that the petition be given due course in view of the evidence on record supporting petitioner's contention that his work was regular in nature. In his view, the dismissal of petitioner after he demanded to be regularized was a subterfuge to circumvent the law on regular employment.

He further recommends that the questioned decision and resolution of respondent Commission be annulled and the Order of the Labor Arbiter directing the reinstatement of petitioner with payment of backwages and other benefits be upheld. 8

After a careful review of the records of this case, the Court finds merit in the petition as We sustain the position of the Solicitor General that the reversal of the decision of the Labor Arbiter by the respondent Commission was erroneous.

The law on the matter is Article 281 of the Labor Code which defines regular and casual employment as follows:

Art. 281. Regular and casual employment. The provisions of a written agreement to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

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

This provision reinforces the Constitutional mandate to protect the interest of labor. Its language evidently manifests the intent to safeguard the tenurial interest of the worker who may be denied the rights and benefits due a regular employee by virtue of lopsided agreements with the economically powerful employer who can maneuver to keep an employee on a casual status for as long as convenient. Thus, contrary agreements notwithstanding, an employment is deemed regular when the activities performed by the employee are usually necessary or desirable in the usual business or trade of the employer. Not considered regular are the so-called "project employment" the completion or termination of which is more or less determinable at the time of employment, such as those employed in

connection with a particular construction project 9 and seasonal employment which by its nature is only desirable for a limited period of time. However, any employee who has rendered at least one year of service, whether continuous or intermittent, is deemed regular with respect to the activity he performed and while such activity actually exists.

The primary standard, therefore, of determining a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous 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. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists.

In the case at bar, the respondent company, which is engaged in the business of manufacture and distillery of wines and liquors, claims that petitioner was contracted on a casual basis specifically to paint a certain company building and that its completion rendered petitioner's employment terminated. This may have been true at the beginning, and had it been shown that petitioner's activity was exclusively limited to painting that certain building, respondent company's theory of casual employment would have been worthy of consideration.

However, during petitioner's period of employment, the records reveal that the tasks assigned to him included not only painting of company buildings, equipment and tools but also cleaning and oiling machines, even operating a drilling machine, and other odd jobs assigned to him when he had no painting job. A regular employee of respondent company, Emiliano Tanque Jr., attested in his affidavit that petitioner worked with him as a maintenance man when there was no painting job.

It is noteworthy that, as wisely observed by the Labor Arbiter, the respondent company did not even attempt to negate the above averments of petitioner and his co- employee. Indeed, the respondent company did not only fail to dispute this vital point, it even went further and confirmed its veracity when it expressly admitted in its comment that, "The main bulk of work and/or activities assigned to petitioner was painting and other related activities. Occasionally, he was instructed to do other odd things in connection with maintenance while he was waiting for materials he would need in his job or when he had finished early one assigned to him. 10

The respondent Commission, in reversing the findings of the Labor Arbiter reasoned that petitioner's job cannot be considered as necessary or desirable in the usual business or trade of the employer because, "Painting the business or factory building is not a part of the respondent's manufacturing or distilling process of wines and liquors. 11

The fallacy of the reasoning is readily apparent in view of the admitted fact that petitioner's activities included not only painting but other maintenance work as well, a fact which even the respondent Commission, like the private respondent, also expressly recognized when it stated in its decision that, 'Although complainant's (petitioner) work was mainly painting, he was occasionally asked to do other odd jobs in connection with maintenance work. 12 It misleadingly assumed that all the petitioner did during his more than one year of employment was to paint a certain building of the respondent company, whereas it is admitted that he was given other assignments relating to maintenance work besides painting company building and equipment.

It is self-serving, to say the least, to isolate petitioner's painting job to justify the proposition of casual employment and conveniently disregard the other maintenance activities of petitioner which were assigned by the respondent company when he was not painting. The law demands that the nature and entirety of the activities performed by the employee be considered. In the case of petitioner, the painting and maintenance work given him manifest a treatment consistent with a maintenance man and not just a painter, for if his job was truly only to paint a building there would have been no basis for giving him other work assignments In between painting activities.

It is not tenable to argue that the painting and maintenance work of petitioner are not necessary in respondent's business of manufacturing liquors and wines, just as it cannot be said that only those who are directly involved in the process of producing wines and liquors may be considered as necessary employees. Otherwise, there would have been no need for the regular Maintenance Section of respondent company's Engineering Department, manned by regular employees like Emiliano Tanque Jr., whom petitioner often worked with.

Furthermore, the petitioner performed his work of painting and maintenance activities during his employment in respondent's business which lasted for more than one year, until early January, 1983 when he demanded to be regularized and was subsequently dismissed. Certainly, by this fact alone he is entitled by law to be considered a regular employee. And considering further that weeks after his dismissal, petitioner was rehired by the company through a labor agency and was returned to his post in the Maintenance Section and made to perform the same activities that he

used to do, it cannot be denied that as activities as a regular painter and maintenance man still exist.

It is of no moment that petitioner was told when he was hired that his employment would only be casual, that he was paid through cash vouchers, and that he did not comply with regular employment procedure. Precisely, the law overrides such conditions which are prejudicial to the interest of the worker whose weak bargaining position needs the support of the State. That determines whether a certain employment is regular or casual is not the will and word of the employer, to which the desperate worker often accedes, much less the procedure of hiring the employee or the manner of paying his salary. It is the nature of the activities performed in relation to the particular business or trade considering all circumstances, and in some cases the length of time of its performance and its continued existence.

Finally, considering its task to give life and spirit to the Constitutional mandate for the protection of labor, to enforce and uphold our labor laws which must be interpreted liberally in favor of the worker in case of doubt, the Court cannot understand the failure of the respondent Commission to perceive the obvious attempt on the part of the respondent company to evade its obligations to petitioner by dismissing the latter days after he asked to be treated as a regular worker on the flimsy pretext that his painting work was suddenly finished only to rehire him indirectly weeks after his dismissal and assign him to perform the same tasks he used to perform. The devious dismissal is too obvious to escape notice. The inexplicable disregard of established and decisive facts which the Commission itself admitted to be so, in justifying a conclusion adverse to the aggrieved laborer clearly spells a grave abuse of discretion amounting to lack of jurisdiction.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the National Labor Relations Commission are hereby annulled and set aside. The Order of Labor arbiter Bienvenido S. Hernandez dated April 6, 1984 is reinstated. Private respondent is ordered to reinstate petitioner as a regular maintenance man and to pay petitioner 1) backwages equivalent to three years from January 16,1983, in accordance with the Aluminum Wage Orders in effect for the period covered, 2) ECOLA 3) 13th Month Pay, 4) and other benefits under pertinent Collective Bargaining Agreements, if any.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 71664 February 28, 1992

BAGUIO COUNTRY CLUB CORPORATION,   petitioner,   vs.NATIONAL LABOR RELATIONS COMMISSION, ASSOCIATED LABOR UNION (ALU) and JIMMY CALAMBA, respondents.

Guillermo B. Bandonill and A.N. Bolinao, Jr. for petitioner.

Jose C. Evangelista for Jimmy Calamba.

 

MEDIALDEA, J.:

This petition for certiorari seeks to annul and set aside the resolution issued by the respondent National Labor Relations Commission dated June 10, 1985 dismissing the appeal of petitioner for lack of merit and affirming in toto the decision of the Executive Labor Arbiter dated September 15, 1982 declaring private respondent Calamba as a regular employee entitled to reinstatement to the position of gardener without loss of seniority and with full backwages, benefits and privileges from the time of his dismissal up to reinstatement including 13th month pay.

The antecedent facts are as follows:

Petitioner Baguio Country Club Corporation (corporation) is a recreational establishment certified by the Ministry of Labor and Employment as an" entertainment-service" establishment. Respondent National Labor Relations Commission (Commission) is a government instrumentality created by law, impleaded in its official capacity, while private respondent Associated Labor Union (union) is a duly registered labor organization and private respondent Jimmy Calamba is an employee of the petitioner corporation as laborer, dishwasher, and gardener.

Private respondent Jimmy Calamba was employed on a day to day basis in various capacities as laborer and dishwasher for a period of ten (10) months from October 1, 1979 to July 24, 1980. On September 1, 1980 to October 1, 1980, private respondent Calamba was hired as a gardener and rehired as such on November 15, 1980 to January 4, 1981 when he was dismissed by the petitioner corporation. (see Rollo, pp. 28-36)

On August 3, 1981, private respondent Jimmy Calamba assisted by private respondent union instituted a complaint against petitioner corporation with the Ministry of Labor (now Department of Labor and Employment), Baguio District Office, Baguio City for unfair labor practice, illegal dismissal and non-payment of 13th month pay for 1979 and 1980.

The Executive Labor Arbiter Sotero L. Tumang rendered a decision on September 15, 1982 declaring private respondent Calamba as a regular employee and ordering petitioner to reinstate private respondent to the position of gardener without loss of seniority and with full backwages, benefits and privileges from the time of his dismissal up to reinstatement including 13th month pay.

Labor Arbiter Tumang found as follows:

After a careful perusal of the facts presented by the parties, we find the complaint for illegal dismissal and non-payment of thirteenth (13th) month pay, meritorious for the following reasons:

1. Complainant Jimmy Calamba has attained regular status as an employee of the Club on account of the nature of the job he was hired, to perform continuously and on staggered basis for a span of thirteen months. True that there were employment contracts executed between the Club and the complainant indicating the period or the number of days the complainant is being needed but what is to be considered is not the agreement, written or otherwise, of the parties in determining the regularity or casualness of job but it should be the nature of the job. Clearly, the work of a gardener is not a seasonal or for a specific period undertaking but it is a whole year round activity. We must not lose sight of the fact that the Baguio Country Club Corporation is an exclusive Club with sustaining members who avails (sic) of its facilities the whole year round and it is necessary, is has been observed and of common knowledge, that the gardens including the green of its golf course where the complainant was assigned must be properly kept and maintained.

2. Being a regular employee with more than one (1) year length of service with the respondent, Jimmy Calamba could not be terminated without a just or valid cause. This is so explicit in our Constitution that the security of tenure of a worker must be safeguarded and

protected and Jimmy Calamba should enjoy no less protection.

3. Jimmy Calamba was dismissed without any written clearance from the Ministry of Labor and Employment prior to his termination. Worse, the respondent fired the complainant from his job due to the a (sic) alleged expiration of his employment contract ten (10) times but not even a single report of his dismissal as mandated by law was submitted to the Ministry of Labor and Employment.

4. The Company did not refute the claim of Jimmy Calamba for payment of his thirteenth (13th) month pay under P.D. 851 nor presented any report of compliance to that effect with the Ministry of Labor and Employment and, therefore, he must be paid correspondingly. (Rollo, pp. 39-40)

Hence, the petitioner interposed an appeal to the respondent Commission.

On June 10, 1985, after finding that there existed no sufficient justification to disturb the appealed decision, the respondent Commission rendered a resolution dismissing the appeal for lack of merit.

Hence, this present petition raising four (4) assignments of errors, which are as follows:

I

THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN HOLDING THAT PRIVATE RESPONDENT JIMMY CALAMBA WAS A "CASUAL" EMPLOYEE AND HAD ATTAINED THE STATUS OF A REGULAR EMPLOYEE, DESPITE THE INCONTROVERTIBLE FACT THAT SAID PRIVATE RESPONDENT WAS A CONTRACTUAL AND SEASONAL EMPLOYEE.

II

THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN HOLDING THAT THE CONCLUSIONS OF THE EXECUTIVE LABOR ARBITER WERE FULLY SUPPORTED BY THE EVIDENCE AND IN UPHOLDING THE REINSTATEMENT OF PRIVATE RESPONDENT JIMMY CALAMBA.

III

THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN HOLDING THAT THE DISMISSAL OF PRIVATE RESPONDENT JIMMY CALAMBA REQUIRED PRIOR CLEARANCE FROM THE MINISTRY OF LABOR AND EMPLOYMENT EACH TIME HIS CONTRACT OF EMPLOYMENT EXPIRED.

IV

THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT ASSOCIATED LABOR UNION HAS NO LEGAL PERSONALITY TO FILE THIS CASE FOR PRIVATE RESPONDENT JIMMY CALAMBA BEFORE THE REGIONAL OFFICE OF THE NATIONAL LABOR RELATIONS COMMISSION, AS SAID PRIVATE RESPONDENT BEING A CONTRACTUAL EMPLOYEE IS EXPRESSLY EXCLUDED FROM THE BARGAINING UNIT UNDER THE COLLECTIVE BARGAINING AGREEMENT (Rollo, pp. 98-99)

Petitioner maintains that private respondent Calamba was a contractual employee whose employment was for a fixed and specific period as set forth and evidenced by the private respondent's contracts of employment, the pertinent portions of which are quoted as follows:

xxx xxx xxx

. . . the employment may be terminated any time without liability to the Baguio Country Club other than for salary actually earned up to and including the date of last service.

His/her employment shall be on a day to day BASIS for a temporary period . . . subject to termination at any time at the discretion of the Baguio Country Club Corporation.

xxx xxx xxx

(Rollo, p. 7)

In addition, petitioner stresses that there was absolutely no oral or documentary evidence to support the conclusion of the Executive Labor Arbiter which was subsequently affirmed by the respondent Commission

that private respondent Calamba has rendered thirteen (13) months of continuous service.

On the contrary, respondent Commission through the Solicitor General argues that private respondent Calamba, having rendered services as laborer, gardener and dishwasher for more than one (1) year, was a regular employee at the time his employment was terminated.

Moreover, the nature of private respondent Calamba's employment as laborer, gardener, and dishwasher pertains to a regular employee because they are necessary or desirable in the usual business of petitioner as a recreational establishment.

The pivotal issue therefore in whether or not the private respondent Jimmy Calamba has acquired the status of a regular employee at the time his employment was terminated.

After a careful review of the records of this case the Court finds no merit in the petition and holds that the respondent Commission did not gravely abuse its discretion when it affirmed in toto the decision of the labor arbiter.

The law on the matter is Article 280 of the Labor Code which defines regular and casual employment as follows:

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 necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

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

This provision reinforces the Constitutional mandate to protect the interest of labor. Its language evidently manifests the intent to safeguard the tenurial interest of the worker who may be denied the rights and benefits due a regular employee by virtue of lopsided agreements with the economically powerful employer who can maneuver to keep an employee on a casual status for as long as convenient. Thus, contrary agreements notwithstanding, an employment is deemed regular when the activities performed by the employee are usually necessary or desirable in the usual business or trade of the employer. Not considered regular are the so-called "project employment" the completion or termination of which is more or less determinable at the time of employment, such as those employed in connection with a particular construction project, and seasonal employment which by its nature is only desirable for a limited period of time. However, any employee who has rendered at least one year of service, whether continuous or intermittent, is deemed regular with respect to the activity he performed and while such activity actually exits.

The primary standard, therefore, of determining a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous 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. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. (De Leon v. National Labor Relations Commission, G.R. No. 70705, August 21, 1989. 176 SCRA 615, 620-621)

In the case at bar, the petitioner corporation, which is certified by the Ministry of Labor and Employment as an

"entertainment-service" establishment, claims that private respondent was contracted for a fixed and specific period. However, the records are that the private respondent was repeatedly re-hired to perform tasks ranging from dishwashing and gardening, aside from performing maintenance work.

Such repeated rehiring and the continuing need for his service are sufficient evidence of the necessity and indispensability of his service to the petitioner's business or trade.

The law demands that the nature and entirety of the activities performed by the employee be considered. It is not tenable to argue that the aforementioned tasks of private respondent are not necessary in petitioner's business as a recreational establishment, just as it cannot be said that only those who are directly involved in providing entertainment service may be considered as necessary employees. Otherwise, there would have been no need for the regular maintenance section of petitioner corporation.

Furthermore, the private respondent performed the said tasks which lasted for more than one year, until early January, 1981 when he was terminated. Certainly, by this fact alone he is entitled by law to be considered a regular employee.

Owing to private respondent's length of service with the petitioner corporation, he became a regular employee, by operation of law, one year after he was employed. It is more in consonance with the intent and spirit of the law to rule that the status of regular employment attaches to the casual employee on the day immediately after the end of his first year of service. To rule otherwise is to impose a burden on the employee which is not sanctioned by law. (see Kimberly Independent Labor Union for Solidarity, Activism and Nationalism in Line Industries and Agriculture v. Drilon, G.R. No. 77629, May 9, 1990, 185 SCRA 190, 203-204)

It is of no moment that private respondent was told when he was hired that his employment would only be "on a day to day basis for a temporary period" and may be terminated at any time subject to the petitioner's discretion. Precisely, the law overrides such conditions which are prejudicial to the interest of the worker. Evidently, the employment contracts entered into by private respondent with the petitioner have the purpose of circumventing the employee's security of tenure. The Court therefore, rigorously disapproves said contracts which demonstrate a clear attempt to exploit the employee and deprive him of the protection sanctioned by the Labor Code.

It is noteworthy that what determines whether a certain employment is regular or casual is not the will and word of the employer, to which the desperate worker often accedes. It is the nature of the activities performed in relation to the particular business or trade considering all

circumstances, and in some cases the length of time of its performance and its continued existence. (see De Leon v. NLRC, Ibid)

All premises considered, the Court is convinced that the assailed resolution of the respondent Commission is not tainted with arbitrariness that would amount to grave abuse of discretion or lack of jurisdiction and therefore, We find no reason to disturb the same.

ACCORDINGLY, the petition is DISMISSED for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 72222 January 30, 1989

INTERNATIONAL CATHOLIC MIGRATION COMMISSION,   petitioner,   vs.NATIONAL LABOR RELATIONS COMMISSION and BERNADETTE GALANG,   respondents.

 

FERNAN, C.J.:

The issue to be resolved in the instant case is whether or not an employee who was terminated during the probationary period of her employment is entitled to her salary for the unexpired portion of her six-month probationary employment.

The facts of the case are undisputed.

Petitioner International Catholic Migration Commission (ICMC), a non-profit organization dedicated to refugee service at the Philippine Refugee Processing Center in Morong, Bataan engaged the services of private respondent Bernadette Galang on January 24, 1983 as a probationary cultural orientation teacher with a monthly salary of P2,000.00.

Three (3) months thereafter, or on April 22, 1983, private respondent was informed, orally and in writing, that her services were being terminated for her failure to meet the prescribed standards of petitioner as reflected in the performance evaluation of her supervisors during the teacher evaluation program she underwent along with other newly-hired personnel.

Despite her termination, records show that private respondent did not leave the ICMC refugee camp at

Morong, Bataan, but instead stayed thereat for a few days before leaving for Manila, during which time, she was observed by petitioner to be allegedly acting strangely.

On July 24, 1983, private respondent returned to Morong, Bataan on board the service bus of petitioner to accomplish the clearance requirements. In the evening of that same day, she was found at the Freedom Park of Morong wet and shivering from the rain and acting bizarrely. She was then taken to petitioner's hospital where she was given the necessary medical attention.

Two (2) days later, or on July 26, 1983, she was taken to her residence in Manila aboard petitioner's service bus. Thru a letter, her father expressed appreciation to petitioner for taking care of her daughter. On that same day, her father received, on her behalf, the proportionate amount of her 13th month pay and the equivalent of her two week pay.

On August 22, 1983, private respondent filed a complaint 1 for illegal dismissal, unfair labor practice and unpaid wages against petitioner with the then Ministry of Labor and Employment, praying for reinstatement with backwages, exemplary and moral damages.

On October 8, 1983, after the parties submitted their respective position papers and other pleadings, Labor Arbiter Pelagio A. Carpio rendered his decision dismissing the complaint for illegal dismissal as well as the complaint for moral and exemplary damages but ordering the petitioner to pay private respondent the sum of P6,000.00 as payment for the last three (3) months of the agreed employment period pursuant to her verbal contract of employment. 2

Both parties appealed the decision to the National Labor Relations Commission. In her appeal, private respondent contended that her dismissal was illegal considering that it was effected without valid cause. On the other hand, petitioner countered that private respondent who was employed for a probationary period of three (3) months could not rightfully be awarded P6,000.00 because her services were terminated for failure to qualify as a regular employee in accordance with the reasonable standards prescribed by her employer.

On August 22, 1985, the NLRC, by a majority vote of Commissioners Guillermo C. Medina and Gabriel M. Gatchalian, sustained the decision of the Labor Arbiter and thus dismissed both appeals for lack of merit. Commissioner Miguel Varela, on the other hand, dissented and voted for the reversal of the Labor Arbiter's decision for lack of legal basis considering that the termination of services of complainant, now private respondent, was effected during her probationary period on valid grounds made known to her. 3

Dissatisfied, petitioner filed the instant petition.

Petitioner maintains that private respondent is not entitled to the award of salary for the unexpired three-month portion of the probationary period since her services were terminated during such period when she failed to qualify as a regular employee in accordance with the reasonable standards prescribed by petitioner; that having been terminated on valid grounds during her probationary period, or specifically on April 24, 1983, petitioner is not liable to private respondent for services not rendered during the unexpired three-month period, otherwise, unjust enrichment of her part would result; that under Article 282 (now Article 281) of the Labor Code, if the employer finds that the probationary employees does not meet the standards of employment set for the position, the probationary employee may be terminated at any time within the six-month period, without need of exhausting raid entire six-month term. 4

The Solicitor General, on the other hand, contends that a probationary employment for six (6) months, as in the case of herein private respondent, is an employment for a definite period of time and, as such, the employer is duty-bound to allow the probationary employee to work until the termination of the probationary employment before her re- employment could be refused; that when petitioner disrupted the probationary employment of private respondent, without giving her the opportunity to improve her method of instruction within the said period, it held itself liable to pay her salary for the unexpired portion of such employment by way of damages pursuant to the general provisions of civil law that he who in any manner contravenes the terms of his obligation without any valid cause shall be liable for damages; 5 that, as held in Madrigal v. Ogilvie, et al, 6 the damages so awarded are equivalent to her salary for the unexpired portion of her employment for a fixed period. 7

We find for petitioner.

There is justifiable basis for the reversal of public respondent's award of salary for the unexpired three-month portion of private respondent's six-month probationary employment in the light of its express finding that there was no illegal dismissal. There is no dispute that private respondent was terminated during her probationary period of employment for failure to qualify as a regular member of petitioner's teaching staff in accordance with its reasonable standards. Records show that private respondent was found by petitioner to be deficient in classroom management, teacher-student relationship and teaching techniques. 8 Failure to qualify as a regular employee in accordance with the reasonable standards of the employer is a just cause for terminating a probationary employee specifically recognized under Article 282 (now Article 281) of the Labor Code which provides thus:

ART. 281. Probationary employment. — Probationary employment shall not exceed six months from the date the

employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employer who has been engaged in a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employer in accordance with reasonable standard made known by the employer to the employer at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. (Emphasis supplied.)

It must be noted that notwithstanding the finding of legality of the termination of private respondent, public respondent justified the award of salary for the unexpired portion of the probationary employment on the ground that a probationary employment for six (6) months is an employment for a "definite period" which requires the employer to exhaust the entire probationary period to give the employee the opportunity to meet the required standards.

The legal basis of public respondent is erroneous. A probationary employee, as understood under Article 282 (now Article 281) of the Labor Code, is one who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment. A probationary appointment is made to afford the employer an opportunity to observe the fitness of a probationer while at work, and to ascertain whether he will become a proper and efficient employee. 9 The word "probationary", as used to describe the period of employment, implies the purpose of the term or period, but not its length. 10

Being in the nature of a "trial period" 11 the essence of a probationary period of employment fundamentally lies in the purpose or objective sought to be attained by both the employer and the employee during said period. The length of time is immaterial in determining the correlative rights of both in dealing with each other during said period. While the employer, as stated earlier, observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer, on the other, seeks to prove to the employer, that he has the qualifications to meet the reasonable standards for permanent employment.

It is well settled that the employer has the right or is at liberty to choose who will be hired and who will be denied employment. In that sense, it is within the exercise of the right to select his employees that the employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before hiring him permanently. The equality of right that exists between the employer and the employee

as to the nature of the probationary employment was aptly emphasized by this Court in Grand Motor Parts Corporation v. Minister of Labor, et al., 130 SCRA 436 (1984), citing the 1939 case of Pampanga Bus. Co., Inc. v. Pambusco Employees Union, Inc. 68 Phil. 541, thus:

The right of a laborer to sell his labor to such persons as he may choose is, in its essence, the same as the right of an employer to purchase labor from any person whom it chooses. The employer and the employee have thus an equality of right guaranteed by the Constitution. If the employer can compel the employee to work against the latter's will, this is servitude. If the employee can compel the employer to give him work against the employer's will, this is oppression.

As the law now stands, Article 281 of the Labor Code gives ample authority to the employer to terminate a probationary employee for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. There is nothing under Article 281 of the Labor Code that would preclude the employer from extending a regular or a 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. Conversely, if the purpose sought by the employer is neither attained nor attainable within the said period, Article 281 of the Labor Code does not likewise preclude the employer from terminating the probationary employment on justifiable causes as in the instant case.

We find unmeritorious, therefore, public respondents argument that the security of tenure of probationary employees within the period of their probation, as in the case of herein private respondent, justified the award of salary for the unexpired portion of her probationary employment. The termination of private respondent predicated on a just cause negates the application in this case of the pronouncement in the case of Biboso v. Victories Milling Co., Inc., 12 on the right of security of tenure of probationary employees.

Upon inquiry by the then Ministry of Labor and Employment as a consequence of the illegal dismissal case filed by private respondent before it, docketed as Case No. NLRC NCR-8-3786-83, it was found that there was no illegal dismissal involved in the case, hence, the circumvention of the rights of the probationary employees sought to be regulated as pointed out in Biboso v. Victorias Milling Co., Inc., 13 is wanting.

There was no showing, as borne out by the records, that there was circumvention of the rights of private respondent when she was informed of her termination.

Her dismissal does not appear to us as arbitrary, fanciful or whimsical. Private respondent was duly notified, orally and in writing, that her services as cultural orientation teacher were terminated for failure to meet the prescribed standards of petitioner as reflected in the performance evaluation conducted by her supervisors during the teacher evaluating program. The dissatisfaction of petitioner over the performance of private respondent in this regard is a legitimate exercise of its prerogative to select whom to hire or refuse employment for the success of its program or undertaking. More importantly, private respondent failed to show that there was unlawful discrimination in the dismissal.

It was thus a grave abuse of discretion on the part of public respondent to order petitioner to pay private respondent her salary for the unexpired three-month portion of her six-month probationary employment when she was validly terminated during her probationary employment. To sanction such action would not only be unjust, but oppressive on the part of the employer as emphasized in Pampanga Bus Co., Inc., v. Pambusco Employer Union, Inc. 14

WHEREFORE, in view of the foregoing, the petition is GRANTED. The Resolution of the National Labor Relations Commission dated August 22, 1985, is hereby REVERSED and SET ASIDE insofar as it ordered petitioner to pay private respondent her P6,000.00 salary for the unexpired portion of her six-month probationary employment. No cost.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-44360 March 31, 1977

REGINA S. BIBOSO, NENITA B. BISO, FE CUBIN, MAGELENDE H. DEMEGILLDO, EMERITA O. PANALIGAN, NILDA P. TAYO, NELDA TORMON, ARDE M. VALENCIANO, MA. LINDA E. VILLA and the VICMICO SUPERVISORY EMPLOYEES ASSOCIATION (VICSEA),   petitioners,   vs.VICTORIAS MILLING COMPANY, INC. and the OFFICE OF THE PRESIDENT OF THE PHILIPPINES, respondents.

FERNANDO, J.:têñ.£îhqwâ£

The present Constitution of expanding the mandate of protection to labor specifically casts on the State the obligation to assure workers security of tenure. 1 The decisive question in the controversy now before this Court is wether the mantle of such guarantee covers the case of the nine petitioners, whose employment admittedly were on a basis. It was the rulling of the respondent Presidential Executive Assistant Jacobo C. Clave that its benificent effects could not be invoked by them that is assailed before this Court. While they are pleading by captioned petition for review, this Court considered it as a cetiorari proceeding in view on his part, the issue of an alleged unfair labor pratice indulged in by private respondent public official, who acted serious accusation against respondent public, who acted on behalf of the Office of the President. The petition is not impressed with the merit.

The order of respondent Jacobo C. Clave, who asss Presidential Executive Assistant acted on an appeal by private respondent from a decision of the Secretary of Labor dismissed the complaint of petitioners for reinstatement. He noted at the outset of such challenged order: "Individual complainants herein were employed by

respondent as academic teachers in respondent's school, the St. Mary Mazzarello School, which is operated by respondent. On or about April 14, 1973, complainants were notified by the school Directress that they (complainants) were not going to be rehired for the school year 1973-74.äüsl•älFº The necessary report for such action was filed by respondent with the Department of Labor on May 28, 1973, informing that complainants' services were thus terminated after the business hours on June 30, 1973. 2 He then pointed out that petitioners were quite successful with the Arbitrator, the former National Labor Relations Commission under Presidential Decree No. 21, and the Secretary of Labor. It was private respondent that appealed to the Office of the President. After which, his order went into the basic issue thus: "This Office had examined and analyzed the various contracts Identified during the hearing below and admitted by the complainants to have been signed by them which clearly show that the complainants were hired as teachers of the school on a year-to-year basis and that they reapplied before the expiration of the contracts and/or signed new ones, as the case may be, if the school decided to renew the same. None of the complainants who testified disputed the fact that they all signed Identical contracts of employment which provided for a definite period of employment which provided for a definite period of employment expiring June 30 of the particular school year. Thus, under 'Status of Employment' of said contracts, the complainants were hired as 'temporary as and when required until June 30, 1973,' or whatever year the contract is supposed to terminate. To he specific, Exhs. '4', '5' and '6' signed by complainant Arde Valenciano show that she was hired on a yearly basis for school year 1970-71, and 1971-72. The same is true with Exhs. '13' and '14' signed by Linda Villa; Exhs. '16', '17','18' and '19', signed by Emerita 0. Panaligan; and Exhs.'22' and '23', signed by Magelinde Demegillo all showing that they were hired on a year-to-year basis. 3 Reference was then made to "the official stand of the Department of Labor respecting recognition by the Labor Code of the policy of the Bureau of Private Schools settling the maximum probationary period for teachers at three years. Of pertinence hereto is the official letter dated March 12, 1975, of Undersecretary of Labor Amado G. Inciong to the President of the Coordinating Council of Private Educational Associations touching on the probationary period for teachers at three years, to wit: ... This refers to your letter of 5 March 1975 in connection with the probationary period for teachers. The Labor Code does not set the maximum probationary period at six months. Under the Labor Code, the probationary period is the period required to learn a skill, trade. occupation or profession. In other words, the Labor Code recognizes the policy of the Bureau of Private Schools settling the maximum probationary period for teachers at three years.4 It was likewise made plain therein that as regards the allegation of unfair labor practice, the Office of the President "finds the same untenable. 5

The petition, as noted at the outset, cannot proper.

1. It is to be noted that in Philippine Air Lines, Inc. v. Philippine Air Lines Employees Association, 6 after reference was made to the specific provision in the present Constitution not found in the 1935 Charter requiring the State to assure workers security of tenure, it was stressed that there should be fealty to [such] constitutional command. 7 Such a mandate was construed in the subsequent case of Almira v. B. F. Goodrich Philippines, Inc., 8 that even in cases affording justification for disciplinary action to be taken by management against an employee, "where a penalty less punitive [than dismissal] would suffice, whatever missteps may be committed by [the latter ought not to be visited with a consequence so severe." 9 The opinion then went on to state: "It is not only because of the law's concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstance of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been paid. From the strictly juridical standpoint, it cannot be too strongly stressed, to follow Davis in his masterly work, Discretionary Justice, that were a decision may be made to rest on informed judgment rather than rigid rules, all the equities of the case must be accorded their due weight. Finally, labor law determinations, to quote from Bultmann, should be notsecundum rationem but also secundum caritatem. " 10 That is a doctrine to which this case is whether it applies to the case of petitioner. The Office of the President answered in the negative. Thus it exercised its discretion. It cannot be said that an abuse could rightfully be imputed by it, much less one that is of such gravity that calls fir judicial correction. What is decisive is that petitioners were well aware all the time that their tenure was for a limited duration. Upon its termination, both parties to the employment relationship were free to renew it or to let it lapse. It was the decision of private respondent that it should cease. The Office of the President could find nothing objectionable when it determined that the will of the parties as to the limited duration thereof should be respected. That was all that was decided.

2. This is by no means to assert that the security of tenure protection of the constitution does not apply t probationary employees. The Labor code has wisely provided for such a case thus: "The termination of employment of probationary employees and those employed with a fixed period shall be subject to such regulations as the Secretary of labor may priscribe to prevent the circum\vention of the right of the employees to be secured in their employment as provided herein." 11 There is no question here, as noted in the assailed order of Presidential Executive Assistant Clave, that petitioners did not enjoy a permanent status. During such period they could remian in their positions and any circumvention of their of the rights, in accordance with the statutory statutory scheme, subject to inquirey and therafter correction by the Department of Labor. Thus

there was the safeguard as to the duration of their employment being respected. To that extent, their tenure was secure. The moment, however, the period expired in accordance with contracts freely entered into, they could no longer invoke the constitutional protection. To repeat, that was what transpired in this case.äüsl•älFº The ruling of the Office of the President, now assailed, is not without support in law.

3. It would be a different matter of course had the failure to renew the contracts of petitioners been justly attributable to their joining petitioner labor union, Vicmico Supervisoyr Employees Association. That would be a clear case of an unfair labor practice. 12 There was such an allegation by them. The Office of the President found "the same untenable." 13 Nor did it stop there. It explained why: "The records disclose, and it is a fact admitted by the union, that the teachers of Don Bosco Technical Institute, also run and operated by respondent, are all members of the VICSEA. The allegation that the Company refused re-employment of complainants simply because they joined the VICSEA isnegated by the fact that in a much bigger school, the Don bosco Technical Institute, respondent has allowed the members of the faculty to join the CIVSEA without any serious objection or reprisal. If at all the respondent had objected to the teachers of the St. Mary Mazzarello school being considered within the same bargaining unit as the otgher employees of the company, it was for the reason that the exemption from coverage of employes hired for a definite period of employment, like the complainants herein, who were indisputably shown that the term of their contract of employment prior to the time that they become permanent under the Manual of the Bureau of Private Schools, was temporary in nature or for a definite period." 14

In the comment submitted on behalf of respondent public official, reference was made to the admission by individual petitioners that before they joined such labor union, "they had serious differences with the school officials respecting their methods of teaching and conduct in school." 15 That was followed by a recital of what was testified to by some of the petitioners. Then came this portion of the comment: "The above-quoted testimonies of individual petitioners clearly show that their competence, efficiency, loyalty and integrity were in question long before they became members of petitioner union VICSEA and it was because of these failings on their part that their contracts to teach were not renewed. This also shown by Exhibit 39, ... (3) Some of the teachers retained to teach in the school were also members of petitioner union VICSEA.... If respondent VICMICO was against individual petitioners joining the union, why did it not terminate the employment of these two teachers as well? (4) Don Bosco of Bacolod City, another school run by respondent VICMICO, is manned by teachers who are members of petitioner union VICSEA ... Considering "he foregoing circumstances, it is difficult to believe the submission of individual petitioners that they were terminated from employment because they joined petitioner union VICSEA It would

appear that it was the other way around. Knowing that their contracts were about to expire and that they would probably not be extended new ones, petitioners sought membership in petitioner union VICSEA to render it more difficult for respondent VICMICO to remove them from their teaching positions. This is indicated by the fact that petitioners became members of petitioner union VICSEA only in January, 1973. Before this date, individual petitioners were already being closely observed to gauge their performance for purposes of determining who shall be accorded permanent status. Thus, individual petitioners knew that they would either be made permanent or will be dropped from the faculty roster at the end of the school year 1972-73. So they joined the union. That the purpose of individual petitioners in joining the union is to avert their forthcoming removal from the faculty roster was impliedly admitted by one of the individual petitioners in her testimony: 'Q — But according to you, precisely, the reason why you joined the union was because it would be very hard for the school toterminate you if you are already a member of the union, did you not say that? A — I said it!" 16 The memorandum for petitioners did stress testimony coming from the Directress of the school in question to show that the refusal to retain them in employment was due to their membership in the union. Certainly, it cannot be assumed that the Office of the President in the evaluation of the conflicting evidence did not take it into consideration. The conclusion it reached was adverse to petitioners. It is now well-settled that the certiorari jurisdiction of this Tribunal extends only to a grave abuse of discretion. There must be the element of arbitrariness or caprice. In the light of what appears of record, the conclusion that the decision reached by it is tainted by such infirmity is unwarranted.

WHEREFORE, the petition for certiorari is dismissed.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. L-57822 April 26, 1989

FR. PEDRO ESCUDERO, O.P. JOSEFINA AGUILAR and UNIVERSITY OF SANTO TOMAS,   petitioners,   vs.OFFICE OF THE PRESIDENT OF THE PHILIPPINES and CARMELITA B. REYES,   respondents.

Augusta K Aligada Jr. for petitioners.

The Solicitor General for public respondent.

Bonifacio R. Reyes, Jr. for private respondent.

 

CORTES, J.:

This special civil action for certiorari stemmed from a complaint for reinstatement and backwages filed by private respondent Carmelita B. Reyes against the petitioners University of Santo Tomas (UST), Friar Pedro Escudero and Josefina Aguilar, the Assistant Regent and Principal, respectively, of the Elementary School Department of UST.

Carmelita B. Reyes was appointed by petitioner UST on June 17, 1972 as a teacher with a "probationary rank" in the latter's Elementary School Department," "with all the duties, rights and privileges appertaining thereto in accordance with the Statutes and Faculty Code of the University and other existing rules and regulations" [Rollo, p. 7.] This appointment expressly provided that it was to take effect on July 5, 1972 and will terminate at the end of the 1972-1973 school year.

On June 7,1973, Reyes's appointment was renewed effective on June 4, 1973 and to terminate at the end of the school year 1973-1974. Her appointment was again renewed on April 2, 1974, to take effect on June 3, 1974 and to terminate at the end of schoolyear 1974-1975. There was no mention in these two renewals whether her appointment was permanent or still probationary.

On February 7,1975, private respondent Reyes received from petitioners a notice of termination of her services, advising her that she filed not be given a new contract of appointment for the ensuing schoolyear. Claiming that she was illegally terminated she filed on February 14, 1975 a complaint for reinstatement with backwages with Regional Office No. IV of the Department of Labor.

On November 13,1975, Labor Arbiter Ricarte T. Soriano rendered a decision upholding the termination of Reyes but ordering petitioner to grant her separation pay, equivalent to one and one-half months pay. The Labor Arbiter justified the award in this wise:

xxx xxx xxx

Although the respondents have shown by overwhelming evidence to the satisfaction of the undersigned that the dismissal was justified, hence, reinstatement of the complainant is unwarranted, the undersigned Arbiter finds it rather still reasonable to order respondents to pay complainant one- half month pay for every year of service. The same is in line with the goals of the Labor Code to be more sympathetic to the cause of the laborers. [Rollo, p. 68.]

From this decision of the Labor Arbiter, both parties appealed to the National Labor Relations Commission (NLRC). The NLRC however found no valid cause for the termination and ordered petitioners to reinstate Reyes to her former position with full backwages from the time her services were terminated on February 7,1975 up to her actual reinstatement without loss of seniority rights and other benefits appertaining thereto.

On appeal to the Secretary of Labor, the then Acting Secretary of Labor, Amado G. Inciong, issued an Order dated November 22,1977 modifying the NLRC decision by deleting the order for the reinstatement of Reyes and ordering petitioners to instead pay her separation pay equivalent to one-half month salary for every year of service.

Private respondent appealed to the Office of the President and on May 27, 1980, the Office of the President rendered a decision reversing that of the Acting Secretary of Labor, the decretal portion of which reads:

In view of the foregoing, respondents-appellees should reinstate complainant-appellant Carmelita B. Reyes to her former position with full back wages from the time her services were terminated on February 7, 1975 up to her actual reinstatement, without loss of seniority rights, as well as to other pertinent benefits. [Rollo, p. 36.]

Hence, petitioner filed the instant special civil action for certiorari seeking to annul the decision of the respondent Office of the President on the principal ground that the private respondent Reyes has not been illegally terminated and therefore, the order for her reinstatement with full backwages had no legal basis.

The pivotal issue in this case is whether grave abuse of discretion can be attributed to the respondent Office of the President in holding that private respondent Reyes was dismissed illegally.

Petitioners maintain that Reyes' last appointment was one with a fixed period; i.e., from June 3, 1974 until the end of the 1974-1975 school year, hence her employment was not covered by then Article 318 * of the Labor Code prohibiting dismissals without any just cause. Petitioners assert that Reyes' appointment terminates upon expiration of the period fixed therein such that when Reyes was sent a notice of the termination of her services as of the end of the 1974-1975 schoolyear, petitioners were merely enforcing the provisions of her last appointment. Moreover, Reyes' employment was subject as well to the UST Faculty Code which prescribes a three-year probationary period in accordance with the 1970 Manual of Regulations for Private Schools. That Code requires a third renewal of

the annual appointment in order that a teacher may be considered permanent, thus:

xxx xxx xxx

The provisions of Sections 3 and 4 notwithstanding, faculty members who have rendered three consecutive years (six semesters) of satisfactory service on full time basis as determined by the pertinent rules of the University and of the Bureau of Private Schools shall be considered permanent upon the third renewal of their annual appointment, ...

xxx xxx xxx

[Rollo, p. 16.]

Petitioners maintain that Reyes failed to render three consecutive years of satisfactory service [Rollo, pp. 16-17,] as shown by her poor efficiency rating found established by the Labor Arbiter, and that it is the third renewal of the appointment of Reyes which is the operative act that will confer her a permanent status. Since her appointment was not renewed for the third time, petitioners insist that she has not attained permanent status [Rollo, p. 171].

There is merit in the petition.

The provisions of the Labor Code, in force at the time the cause of action of Reyes accrued on February 7, 1975 Villones v. Employees' Compensation Commission, G.R. No. L-46200, July 30, 1979, 92 SCRA 320], states that "[t]he termination of employment of probationary employees and those employed with a fixed period shall be subject to such regulations as the Secretary of Labor may prescribe to prevent the circumvention of the right of the employees to be secured in their employment as provided herein" [Section 320; Emphasis supplied].

Under Section 6, Rule I, Book IV of the Rules Implementing the Labor Code:

Section 6. Probationary and fixed period employment. -(a) Where the work for which an employee has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the Department of Labor, the probationary employment period of the employee shall be limited to the authorized learnership or apprenticeable period, whichever is applicable.

(b) Where the work is neither learnable nor apprenticeable the probationary period of employment shall not exceed 6

months from the date the employee actually started working.

xxx xxx xxx

However, the six-month probationary period prescribed by the Secretary of Labor is merely the general rule. The recognized exceptions to this rule, as further set forth in Policy Instructions No. 11 issued by the Secretary of Labor on April 23, 1976, are:

xxx xxx xxx

Probationary employment has been the subject of misunderstanding in some quarters. Some people believe six (6) months is the probationary period in all cases. On the other hand, employees who have already served the probationary period are sometimes required to serve again on probation.

Under the Labor Code, six (6) months is the general probationary period, but the probationary period is actually the period needed to determine fitness for the job. This period, for lack of a better measurement, is deemed to be the period needed to learn the job.

Thus, if the job is apprenticeable, then the probationary period is the apprenticeship period, which may be six (6) months, less than six (6) months, or more than six (6) months, depending upon the nature of the job. Therefore, upon graduation an apprentice may not be put under probationary employment in the company in which he trained. In another company, however, the probationary period for him would be six (6) months. The reason is to allow the employer to test his working habits and other personal traits with respect to his fitness for regularization in the company. If the job is learnable-can be learned within three months-then the probationary period is three months or less. The learner upon completion of the learning period must be considered regular.

The probationary employment of professors, instructors and teachers shall be subject to standards established by the Department of Education and Culture.

xxx xxx xxx

[Rollo, p. 110; Emphasis supplied.]

It is thus clear that the Labor Code authorizes different probationary periods, according to the requirements of the particular job. For private school teachers, the period of probation is governed by the 1970 Manual of Regulations for Private Schools, adopted by the Department of Education and Culture pursuant to the provisions of Act No. 2076, as amended by Act No. 3075 and Commonwealth Act No. 180. Paragraph 75 of the Manual provides that "[f]ull-time teachers who have rendered three consecutive years of satisfactory service shall be considered permanent," while the preceding paragraph requires that the employment contracts be in writing with at least one school-year's duration. That the probationary period for private school teachers is three years has already been confirmed by this Court in the recent case of Labajo v. Alejandro [G.R. No. 80383, September 26, 1988] wherein it was declared:

xxx xxx xxx

The three (3)-year period of service mentioned in paragraph 75 [of the Manual of Regulations for Private Schools] is of course the maximum period or upper limit, so to speak, of probationary employment allowed in the case of private school teachers. This necessarily implies that a regular or permanent employment status may, under certain conditions, be attained in less than three (3) years. By and large, however, whether or not one has indeed attained permanent status in one's employment, before the passage of three (3) years, is a matter of proof. [at p. 7.]

xxx xxx xxx

The best proof as to whether Reyes had already attained permanent status, is her contract with petitioner UST. That contract which was only the second renewal of her original probationary appointment reads as follows:

April 2 1974

74

Mrs. Carmelita Reyes Elementary School Department University of Santo Tomas

Dear Mrs. Reyes,

Upon recommendation of the Elementary's

Council of the ELEMENTARY SCHOOL DEPARTMENT

I have the pleasure to appoint you

TEACHER

with all the duties, rights and privileges appertaining thereto in accordance with the Statutes and Faculty Code of the University and other existing rules and regulations.

This appointment takes effect on June 3,1974 and terminates at the end of the 1974-1975 school year.

Sincerely,

(signed)

. EXCELSIO GARCIA, O.P.Assistant to the Rectorfor Academic Affairs

NON-TENURED APPOINTMENT ACCEPTED:

(signed)CARMELITA B. REYES DATED: June 3,1974

The above contract reveals two significant points: 1) that the contract is one with a definite period to start on June 3, 1974 to end at the close of the 1974- 75 schoolyear and 2) that Reyes' signature appears underneath the words "NON-TENURED APPOINTMENT ACCEPTED." These features in the contract indicate that the appointment of Reyes subsists only for the 1974- 75 schoolyear. That the contract contained the words "non-tenured appointment accepted" reveals the non-permanent status of her employment. Nothing therein states that a permanent appointment was extended to her nor that UST was obliged to extend her one upon the expiration of the above contract.

Moreover no vested right to a permanent appointment had as yet accrued in her favor since she had not yet completed the prerequisite three year period necessary for the acquisition of permanent status, as required both by the Manual of Regulations for Private Schools and the UST Faculty Code. That her appointment was only for a fixed duration is further evinced by the fact that on February 7, 1975, before the expiration of the abovementioned contract, Reyes was served a notice

that she may not expect her appointment to be renewed the next schoolyear and that her probationary employment was to terminate at the close of the schoolyear 1974-75. Although Reyes was allowed to complete her term according to the stipulated period, indeed no new contract was extended her. Reyes however construed the February 7, 1975 notice as a notice of termination and claims that it constituted dismissal without just cause and thus filed the instant case.

Reyes' argument is not persuasive. It loses sight of the fact that her employment was probationary, contractual in nature, and one with a definite period. At the expiration of the period stipulated in the contract, her appointment was deemed terminated and the letter informing her of the non- renewal of her contract is not a condition sine qua non before Reyes may be deemed to have ceased in the employ of petitioner UST. The notice is a mere reminder that Reyes' contract of employment was due to expire and that the contract would no longer be renewed. It is not a letter of termination. The interpretation that the notice is only a reminder is consistent with the court's finding inLabajo, supra, where the Court in construing a similar letter sent to private school teachers whose contracts with San Andres High School were due to expire said:

xxx xxx xxx

Such letter was either a formal reminder to private respondents that their respective contracts of employment with petitioners for school year 1984-85 were due to expire on 31 March 1985, or advance notice that such contracts would no longer be renewed for school year 1985-86, or both. [at p. 10.]

As to the question of the existence of just cause to justify the dismissal, the Court finds applicable here the case ofBiboso v. Victorias Milling Company, Inc. [G.R. No. L-44360, March 31, 1977, 76 SCRA 250, (1977).] In that case, the Court held that while probationary employees enjoy security of tenure such that they cannot be removed except for cause as provided by law, such protection extends only during the period of probation. Once that period expires, the constitutional protection could no longer be invoked. This has been reiterated in subsequent cases [Manila Hotel Corporation v. NLRC, G.R. No. 53453, January 22, 1986, 141 SCRA 169; Euro-Linea, Phils., Inc. v. National Labor Relations Commission, G.R. No. 75782, December 1, 1987, 156 SCRA 78; Labajo v. Alejandro, et al, supra.]

In the instant case, the probation period provided is three years covered by three separate written annual contracts. Reyes as a probationary and contractual employee was entitled to security of tenure only during the three year period of her probation and such protection ended the moment her last employment

contract expired at the close of schoolyear 1974-75 and she was not extended a renewal of her appointment.

The Office of the President therefore gravely abused its discretion in finding that Reyes was illegally terminated, in ordering her reinstatement and in awarding her backwages "from the time her services were terminated on February 7, 1975 up to her actual reinstatement" [Rollo, p. 36.]

WHEREFORE, the decision of the respondent Office of the President is hereby SET ASIDE, and the Order of the Assistant Secretary of Labor dated November 22,1977 is REINSTATED.

SO ORDERED

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 109114 September 14, 1993

HOLIDAY INN MANILA and/or HUBERT LINER and BABY DISQUITADO,   petitioners,   vs.NATIONAL LABOR RELATIONS COMMISSION (Second Division) and ELENA HONASAN,   respondents.

Inocentes, De Leon, Leogardo, Atienza, Manaye & Azucena Law Office for petitioners.

Florante M. Yambot for private respondent.

 

CRUZ, J.:

The employer has absolute discretion in hiring his employees in accordance with his standards of competence and probity. This is his prerogative. Once hired, however, the employees are entitled to the protection of the law even during the probation period and more so after they have become members of the regular force. The employer does not have the same freedom in the hiring of his employees as in their dismissal.

Elena Honasan applied for employment with the Holiday Inn and was on April 15, 1991, accepted for "on-the-job training" as a telephone operator for a period of three weeks. 1 For her services, she received food and transportation allowance. 2 On May 13, 1992, after completing her training, she was employed on a

"probationary basis" for a period of six months ending November 12, 1991. 3

Her employment contract stipulated that the Hotel could terminate her probationary employment at any time prior to the expiration of the six-month period in the event of her failure (a) to learn or progress in her job; (b) to faithfully observe and comply with the hotel rules and the instructions and orders of her superiors; or (c) to perform her duties according to hotel standards.

On November 8, 1991, four days before the expiration of the stipulated deadline, Holiday Inn notified her of her dismissal, on the ground that her performance had not come up to the standards of the Hotel. 4

Through counsel, Honasan filed a complaint for illegal dismissal, claiming that she was already a regular employee at the time of her separation and so was entitled to full security of tenure. 5 The complaint was dismissed on April 22, 1992 by the Labor Arbiter, 6 who held that her separation was justified under Article 281 of the Labor Code providing as follows:

Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

On appeal, this decision was reversed by the NLRC, which held that Honasan had become a regular employee and so could not be dismissed as a probationer. 7 In its own decision dated November 27, 1992, the NLRC ordered the petitioners to reinstate Honasan "to her former position without loss of seniority rights and other privileges with backwages without deduction and qualification." Reconsideration was denied in a resolution dated January 26, 1993. 8

The petitioners now fault the NLRC for having entertained Honasan's appeal although it was filed out of time and for holding that Honasan was already a regular employee at the time of her dismissal, which was made 4 days days before the expiration of the probation period.

The petition has no merit.

On the timeliness of the appeal, it is well-settled that all notices which a party is entitled to receive must be coursed through his counsel of record. Consequently, the running of the reglementary period is reckoned from the date of receipt of the judgment by the counsel of the appellant. 9 Notice to the appellant himself is not sufficient notice. 10Honasan's counsel received the decision of the Labor Arbiter on May 18, 1992. 11 Before that, however, the appeal had already been filed by Honasan herself, on May 8, 1992. 12 The petitioners claim that she filed it on the thirteenth but this is irrelevant. Even if the latter date was accepted, the appeal was nevertheless still filed on time, in fact even before the start of the reglementary period.

On the issue of illegal dismissal, we find that Honasan was placed by the petitioner on probation twice, first during her on-the-job training for three weeks, and next during another period of six months, ostensibly in accordance with Article 281. Her probation clearly exceeded the period of six months prescribed by this article.

Probation is the period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. In the case at bar, the period was for three weeks, during Honasan's on-the-job training. When her services were continued after this training, the petitioners in effect recognized that she had passed probation and was qualified to be a regular employee.

Honasan was certainly under observation during her three-week on-the-job training. If her services proved unsatisfactory then, she could have been dropped as early as during that period. But she was not. On the contrary, her services were continued, presumably because they were acceptable, although she was formally placed this time on probation.

Even if it be supposed that the probation did not end with the three-week period of on-the-job training, there is still no reason why that period should not be included in the stipulated six-month period of probation. Honasan was accepted for on-the-job training on April 15, 1991. Assuming that her probation could be extended beyond that date, it nevertheless could continue only up to October 15, 1991, after the end of six months from the earlier date. Under this more lenient approach, she had become a regular employee of Holiday Inn and acquired full security of tenure as of October 15, 1991.

The consequence is that she could no longer be summarily separated on the ground invoked by the petitioners. As a regular employee, she had acquired the protection of Article 279 of the Labor Code stating as follows:

Art. 279. Security of Tenure — In cases of regular employment, the employer shall not terminate the services of an

employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

The grounds for the removal of a regular employee are enumerated in Articles 282, 283 and 284 of the Labor Code. The procedure for such removal is prescribed in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code. These rules were not observed in the case at bar as Honasan was simply told that her services were being terminated because they were found to be unsatisfactory. No administrative investigation of any kind was undertaken to justify this ground. She was not even accorded prior notice, let alone a chance to be heard.

We find in the Hotel's system of double probation a transparent scheme to circumvent the plain mandate of the law and make it easier for it to dismiss its employees even after they shall have already passed probation. The petitioners had ample time to summarily terminate Honasan's services during her period of probation if they were deemed unsatisfactory. Not having done so, they may dismiss her now only upon proof of any of the legal grounds for the separation of regular employees, to be established according to the prescribed procedure.

The policy of the Constitution is to give the utmost protection to the working class when subjected to such maneuvers as the one attempted by the petitioners. This Court is fully committed to that policy and has always been quick to rise in defense of the rights of labor, as in this case.

WHEREFORE, the petition is DISMISSED, with costs against petitioners. It is so ordered.